39th Annual MLAANZ Conference
Brisbane
12-14 September 2012
THE AUSTRALIAN YEAR IN ARBITRATION
Peter McQueen FCIArb
www.petermcqueen.com
1 September 2012
1
1
It has been a busy year (August 2011 to August 2012) for arbitration in Australia, following the
introduction of amendments to the International Arbitration Act 1974 (Cth) (IAA), which were
enacted in July 2010 and which underline pro-arbitration and pro-enforcement policies. In
addition there has been the introduction of new domestic commercial arbitration model
legislation.
2
The IAA, which is the legislative regime governing international commercial arbitration in
Australia, implements:
a
b
c
3
Developments in the relevant jurisprudence and legislation in both the international and
domestic commercial arbitration regimes include:
a
b
c
d
e
f
4
Australia’s obligation to enforce and recognize foreign arbitration agreements and
arbitral awards under the UNCITRAL Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (New York Convention) – see Part II of the IAA, in Schedule 1 in
which the New York Convention appears.
the UNCITRAL Model Law 1985 as amended in 2006 (Model Law) – see Part III of the
IAA, in Schedule 2 in which the Model Law appears.
Australia’s obligation under the ICSID Convention – see Part IV of the IAA, in Schedule 3
in which the ICSID Convention appears.
recognition and enforcement of foreign awards (Sections 8 and 9 of the IAA).
foreign maritime awards (Section 11 of the Carriage of Goods by Sea Act 1991) (Cth)
(COGSA).
opting out of the Model Law (Section 21 of the IAA).
interim measures in support of arbitral proceedings (Article 17 of the Model Law).
sufficiency of reasons in arbitral awards (Section 29(1)(c ) of the Commercial Arbitration
Act 1984 (NSW) (1984 Act)).
legislative reform of domestic commercial arbitration by a Model Commercial
Arbitration Bill (Model Bill).
The types of commercial arbitral award are:
a
b
c
d
domestic awards - governed by domestic legislation.
foreign awards made outside Australia to which the New York Convention applies –
governed by Part II of the IAA.
foreign awards made outside Australia to which the New York Convention does not
apply – governed by Part III of the IAA.
international awards made in Australia – governed by Part III of the IAA.
Recognition and enforcement of foreign awards – legislative scheme
5
Sections 8(1) and 8(3) in Part II of the IAA provide for the recognition and enforcement of
foreign arbitral awards as follows:
“8(1)…, a foreign award is binding by virtue of this Act for all purposes on the parties to the
arbitration agreement in pursuance of which it was made.
…
2
(3)…a foreign award may be enforced in the Federal Court of Australia as if the award were
a judgment or order of that court.”
6
A “foreign award” is defined in Section 3(1) of the IAA as:
“… an arbitral award made, in pursuance of an arbitration agreement, in a country other than
Australia, being an arbitral award in relation to which the Convention applies.”
Section 3(1) of the IAA also provides that “arbitral award” has the same meaning as in the
New York Convention (see sub-articles 1 and 2 of Article I) and that “arbitration agreement”
means an agreement in writing of the kind referred to in sub-articles 1 and 2 of Article II of the
New York Convention.
7
Part II does not apply to a foreign award to which the New York Convention does not apply,
namely because the award was not made in a Convention country and the party seeking to
enforce the award, the award creditor, is not domiciled or ordinary resident in Australia or in a
Convention country. Application for enforcement in Australia of such an award will be made
pursuant to Article 35 of the Model Law and attempts to resist such enforcement will be
governed by Article 36 of the Model Law. The Federal Court of Australia has held that it has
jurisdiction to entertain applications under these Articles (Castel Electronics Pty Ltd v TCL Air
Conditioner (Zhongshan) [2012] FCA 21)(Castel Electronics).
8
The two parts of the scheme of Part II of the IAA relating to recognition and enforcement of a
New York Convention award are:
a
proof of that award by the production of a duly authenticated original and of the
arbitration agreement under which the award purports to have been made or a duly
certified copy of each (Section 9), thereby providing the successful party to that award a
prima facie right to its recognition and enforcement;
b
grounds on which recognition and enforcement may be refused only as set out in
Sections 8(5)(a-f) and 8(7), in respect of which there is no residual discretion (Section
8(3A)) – these grounds repeat those in Article V of the New York Convention.
9
Section 8(7)(b) provides that recognition or enforcement of a foreign award under Part II of
the IAA may be refused if the court finds that to enforce the award would be contrary to
public policy, this provision reflecting sub-article 2(b) of Article V of the New York
Convention.
10
Section 8(7A) provides:
“To avoid doubt and without limiting paragraph (7)(b), the enforcement of a foreign award
would be contrary to public policy if:
(a) the making of the award was induced or affected by fraud or corruption; or
(b) a breach of the rules of natural justice occurred in connection with the making of the
award.”
11
In the context of Section 8(7)(b) the public policy which is referred to is the public policy of
the country in which an award is sought to be enforced. In IMC Aviation Solutions Pty Ltd v
Altain Khuder LLC [2011] VSCA 248 (Altain Khuder) the Victorian Supreme Court of Appeal
found that the party resisting enforcement of the award had established that it had been
3
denied natural justice, as the tribunal which made the award did so without giving prior
notice to that party that it proposed to make an order against that party. Therefore the
Court refused to enforce the award as it would be contrary to public policy.
12
Part II of the IAA gives effect to the New York Convention and in particular to Article V. The
Federal Court of Australia has held that that Part is to be interpreted in light of that
Convention (Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd [2011] FCA 131 at [para
21](Uganda Telecom)).
13
Section 39(2) of the IAA requires that a court, when exercising a power under Section 8 to
enforce or to refuse to enforce a foreign award, including a refusal because the enforcement
of that award would be contrary to public policy, must have regard to the following:
“(a) the objects of the Act; and
(b) the fact that:
(i) arbitration is an efficient, impartial, enforceable and timely method by which to
resolve commercial disputes; and
(ii) awards are intended to provide certainty and finality.”
The objects of the IAA, which are set out in Section 2D, include:
“(a) to facilitate international trade and commerce by encouraging the use of arbitration as
a method of resolving disputes; and
(b) to facilitate the use of arbitration agreements made in relation to international trade
and commerce; and
(c) to facilitate the recognition and enforcement of arbitral awards made in relation to
international trade and commerce; and
(d) to give effect to Australia’s obligations under the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards adopted in 1958 by the United Nations Conference
on International Commercial Arbitration at its twenty-fourth meeting; and …”
14
Section 8(8) provides that an Australian court may adjourn enforcement proceedings before
it where it is satisfied that an application for the setting aside or suspension of an arbitral
award has been made in the country in which, or under the law of which, the award was
made, this provision being consistent with Article VI of the New York Convention. The
purpose of this Section is to ensure that enforcement of an award does not occur where that
award may in time become unenforceable. Sections 8(9) and 8(10) allow a court to order
proceedings, which have been adjourned under Section 8(8), to be resumed in certain
specified circumstances (ESCO Corporation v Bradken Resources Pty Ltd [2011] FCA
905)(ESCO).
Onus of proof and standard of proof – Sections 8 and 9 of the IAA
15
In Altain Khuder the Court held:
a that the onus of proving the award and the arbitration agreement, in accordance with
Section 9, is upon the award creditor on a prima facie basis, namely to prove that the award
is made by the tribunal granting relief to the award creditor against the award debtor, that
the award is made pursuant to the arbitration agreement and that the award creditor and
the award debtor are parties to the arbitration agreement.
4
b that the onus of proving the ground(s) against enforcement is upon the party opposing
recognition and enforcement, the award debtor. That party needs to establish on the
balance of probabilities both the ground(s) within Sections 8(5) and 8(7) and the elements
within those ground(s) relied upon.
16
On the question of the standard of proof required, the Court in Altain Khuder held that what
may be required in a particular case to produce proof on the balance of probabilities will
depend upon the nature and seriousness of that sought to be proved. The qualifications
made by the judge at first instance in Altain Khuder to the language in Sections 8(5) and 8(7)
were held to “raise the barrier to an evidentiary higher level of satisfaction than” the IAA
requires [192]. Further the Court held that, while that judge’s language may have been
appropriate in a case of fraud, the use of language requiring “clear, cogent and strict” proof
to satisfy those Sections “seemingly pitched the level of proof even higher” [para 194].
17
For further discussion on the decision in Altain Khuder, see the paper entitled “Recent
Developments in the Enforcement of Foreign Arbitral Awards in Australia” presented by
Gregory Nell SC at the Fall Meeting of the Maritime Law Associations of the United States,
Canada, Australia and New Zealand held in Hawaii in December 2011 at www.mlaanz.org.au
Pro-enforcement approach to foreign awards by Australian Courts
18
The pro-enforcement approach to foreign awards is evident in the following three decisions
of the Federal Court of Australia:
a
in Uganda Telecom the Court held, in enforcing a foreign award, that the 2010
amendments to the IAA make it clear that there is no general discretion available to a court
to refuse to enforce a foreign award, that the grounds for refusal of enforcement on the
basis that such enforcement would be contrary to public policy should be interpreted
narrowly (para 132), and that it was not against public policy for the court to enforce an
award without examining the correctness of the reasons or the result reflected in the award
(para 126).
b in Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) [2012] FCA 276, the Court
enforced a foreign award where the non-existence of assets in Australia were alleged and
where there were court proceedings in the national court of the award debtor to set aside
the award. Here the Court held:
i that there was no pre-condition to the Court awarding an order in the terms of the
relevant award or directing entry of judgment that there are assets within Australia against
which execution may be levied (para 82).
ii that the public policy to be applied as ground for refusal of enforcement is the
public policy of the jurisdiction in which enforcement is sought and relates to only those
aspects of public policy that go to the fundamental, core questions of morality and justice in
that jurisdiction (para 105).
iii that in the circumstances of the case the existence in the national court of the award
debtor of proceedings to set aside the award, in addition to an interim court order
restraining the award creditor from enforcing the award, did not enliven the discretion to
refuse to enforce the award in Australia (para 111).
5
c
in ESCO the Court adjourned enforcement proceedings in Australia, pending final
determination of foreign court proceedings challenging the same award, on the proviso that
substantial security was given. The Court noted that there was a wide discretion to adjourn
enforcement proceedings pursuant to Section 8(8) of the IAA, which is to be exercised very
carefully having due regard to the objects of the IAA and the spirit of the New York
Convention (para 85).
Enforceability of foreign maritime awards
19
Section 2C in the IAA states:
“Nothing in this Act affects:
…
(c) the operation of section 11…of the Carriage of Goods by Sea Act 1991.”
As has been judicially noted, Section 2C “preserves the primacy of the Australian national
interest in ensuring the availability of Australian courts or Australian arbitral tribunals in the
resolution of disputes arising from the carriage of goods by sea in the circumstances set out
in the provisions referred to” in that Section (Comandate Marine Corp v Pan Australia
Shipping Pty Ltd (2006) 157 FCR 45).
20
Sections 9, 10 and 11 of Part 2 of the Carriage of Goods by Sea Act 1991 (COGSA)relevantly
provide:
“9
Interpretation
In this Part and the amended Hague Rules, unless the contrary intention appears, a word or
expression has the same meaning as it has in the Brussels Convention as amended by the
Visby Protocol and the SDR Protocol.
10
Application of the amended Hague Rules
(1)
The amended Hague Rules only apply to a contract of carriage of goods by sea that:
…
(b)
is a contract:
…
(iii) contained in or evidenced by a non-negotiable document (other than a bill of
lading or similar document of title), being a contract that contains express
provision to the effect that the amended Hague Rules are to govern the contract as
if the document were a bill of lading.
…
11
Construction and jurisdiction
(1) All parties to:
(a) a sea carriage document relating to the carriage of goods from any place in Australia
to any place outside Australia;
6
…
are taken to have intended to contract according to the laws in force at the place of
shipment.
(2) An agreement (whether made in Australia or elsewhere) has no effect so far as it
purports to:
(a) preclude or limit the effect of subsection (1) in respect of a bill of lading or a
document mentioned in that subsection; or
(b) preclude or limit the jurisdiction of a court of the Commonwealth or of a State
or Territory in respect of a bill of lading or a document mentioned in subsection (1); or
(c) preclude or limit the jurisdiction of a court of the Commonwealth or of a State or
Territory in respect of:
(i)
a sea carriage document relating to the carriage of goods from any
place outside Australia to any place in Australia;
(ii)
a non-negotiable document of a kind mentioned in subparagraph
10(1)(b)(iii) relating to such a carriage of goods.
(3) An agreement , or a provision of an agreement, that provides for the resolution of a
dispute by arbitration is not made ineffective by subsection (2) (despite the fact that it
may preclude or limit the jurisdiction of a court) if, under the agreement or provision,
the arbitration must be conducted in Australia.”
21
Section 11(1) of COGSA is a mandatory choice of law clause, by which all parties when
entering into contracts relating to export shipments are taken to have intended to contract
in accordance with Australian law. Section 11(2) of COGSA maintains the preservation of the
jurisdiction of Australian courts in respect of agreements, wherever made and where
evidenced by specified documents relating to both export and import shipments. By Section
11(2) those agreements have no effect so far as they purport to preclude or limit the
application of Australian law in respect of export shipments and the application of the
jurisdiction of Australian courts in respect of both export and import shipments.
22
When Section 11(1) was originally introduced in 1991 its operation was limited to “a bill of
lading, or similar document of title” and did not apply to a charterparty which was not itself
a document of title. In 1998 amendments were made to Sections 11(1)(a) and 11(2)(c)(i) by
omitting the words “a bill of lading, or similar document of title” and by substituting the
words “a sea carriage document relating to the carriage of goods from any place in Australia
to any place outside Australia” and “a sea carriage document relating to the carriage of
goods from any place outside Australia to any place in Australia” respectively.
23
The words “sea carriage document” appearing in these amendments are not defined in
COGSA. Rather they are defined by way of regulation, with the introduction into COGSA in
1998 of the “amended Hague Rules” by Schedule IA. Article 1(1)(g) of the amended Hague
Rules defined those words. That definition is:
“(i)
(ii)
(iii)
(iv)
a bill of lading; or
a negotiable document of title that is similar to a bill of lading and that
contains or evidences a contract of carriage of goods by sea; or
a bill of lading that, by law, is not negotiable; or
a non-negotiable document (including a consignment note and a document
of the kind known as a sea waybill or the kind known as a ship’s delivery
order) that either contains or evidences a contract of carriage of goods by
sea.”
7
24
That definition applies when those words are used in the amended Hague Rules and does
not apply to COGSA itself. By Section 9 of COGSA, the words “sea carriage document” as
they appear in Part 2 of COGSA have the same meaning as they have in the Brussels
Convention as amended by the Visby Protocol and the SDR Protocol (which constitutes
Schedule 1 of COGSA). However the words “sea carriage document” do not appear, and are
not defined, there.
25
It has been argued that a voyage charterparty could be construed to be within the
description of the words “sea carriage document”, where they appear in Section 11 of
COGSA, by using the meaning given to those words in the definition given to them in the
amended Hague Rules. Upon this construction commentators have concluded that a foreign
arbitration clause (that being one which stipulates that the arbitration seat is one outside
Australia) in such a document would be of no effect (see the discussion in “Shipping Law” by
M Davies and A Dickey (3rd edition, Lawbook Company, Australia, 2004, pp 177-9). If this
were found to be the correct construction, then a foreign maritime award, which results
from an arbitration clause within the terms of Section 11(2) (namely one made at an
arbitration seat outside Australia), might not be enforceable by an Australian court. Against
that construction it has been observed that the amended Hague Rules expressly do not apply
to charterparties.
26
Alternatively it has been argued that, having regard to the plain meaning of the words
appearing in COGSA, a voyage charterparty is a document that contains a contract for the
carriage of goods by sea and is therefore a “sea carriage document”.
27
In August 2011 the Supreme Court of South Australia in Jebsens International (Australia) Pty
Ltd v Interfert Australia Ltd (2011)112 SASR 207 (Jebsens) rejected the proposition that the
foreign arbitration clause in the relevant voyage charterparty was in contravention of
Section 11(2) of COGSA, ruling that a voyage charterparty does not come within the ambit of
Section 11. The case arose out of claims for unpaid freight arising from the carriage of an
cargo of fertiliser from Tampa, USA to various Australian ports on the “Nord Trust” under a
voyage charterparty. The charterparty called for arbitration in London with disputes to be
governed by English law. The award creditor in respect of the two awards made sought their
enforcement in Australia and the Court ruled that both awards were enforceable.
28
The Court ruled that the voyage charterparty was not a “sea carriage document” within the
definition contained in the amended Hague Rules. It was reasoned that “COGSA in its current
form deals with the rights of persons holding bills of lading or similar instruments. A
charterparty is a document of a different genus. A charterparty is not a sea carriage
document simply because it is a document containing a contract for the carriage of goods by
sea. The charterparty is the relevant document, not the bill of lading. The arbitration was
concerned with the charterparty.” (page 208)
29
In June 2012 the Federal Court of Australia in Dampskibsselskabet Norden A/S v Beach
Building & Civil Group Pty Ltd [2012] FCA (Norden) held that the relevant voyage
charterparty was a “sea carriage document” within Sections 11(1)(a) and 11(2)(b) of COGSA.
The case arose out of a claim for demurrage arising from the carriage of a cargo of coal from
Dalrymple Bay, Australia to Lianyungang, China on the “Ocean Baron” under a voyage
charterparty. The arbitration clause called for arbitration in London with disputes to be
governed by English law. The award creditor in respect of the two awards sought their
enforcement in Australia and the Court ruled that they were not enforceable as they were of
no effect.
8
30
The Court found that as from 1997 the legislature was intending by the various amendments
to broaden the class of documents governed by Sections 11 (1)(a) and 11(2)(b) of COGSA.
Further the Court gave the words of definition in Article 1(1)(g)(iv) of the amended Hague
Rules “a meaning reflective of ordinary English usage” and that as the relevant charterparty
“is a contract of carriage of goods by sea it “contains or evidences” such a contract” and “is,
therefore a “sea carriage document” within the meaning of Section 11(1)(a).” The Court
noted that “the same result would have been arrived at by simply construing the phrase “sea
carriage document” in Section 11(1)(a) without recourse to Art 1 (1)(g)(iv) of the amended
Hague Rules.” (paras 141 and 142)
31
Accordingly the Court found that the arbitration clause in the relevant charterparty had no
effect, given that its purpose was to preclude or limit the jurisdiction of Australian courts
(para 143) by the operation of Sections 11(1)(a) and 11(2)(b) of COGSA and concluded that
the award creditor could not rely upon that arbitration clause as the source of the
arbitrator’s jurisdiction and power to make the two awards and therefore neither award
could be enforced in Australia under the IAA (para 146). In other words the effect of COGSA
was that the arbitrator had no jurisdiction nor power.
32
The Court, having found that the arbitration clause in the relevant charterparty was contrary
to COGSA, could have then gone on to find that it would not enforce the award on the basis
of grounds in Section 8(5) and 8(7) of the IAA. However it did not. Rather the Court found
that COGSA struck down the arbitration clause and that there was no valid arbitration
agreement. The decision is under appeal.
33
These two conflicting decisions create uncertainty as to the enforceability in Australia of a
foreign maritime award which results from a claim arising under a charterparty relating to an
Australian export or import shipment of cargo. Given this uncertainty parties will need to
consider, when determining which arbitration seat to include in the arbitration clause in
such voyage charterparties, whether they are prepared to risk the unenforceability in
Australia of an award made in accordance with an arbitration clause which stipulates a nonAustralian seat. That risk can be eliminated by the inclusion in the arbitration clause of an
Australian arbitration seat. In that regard it should be noted that, by Section 11(3) of COGSA,
the conduct of arbitration in Australia is expressly allowed.
Opting out of the Model Law
34
Section 21 of the IAA states that parties cannot opt out of the Model Law. Prior to its
amendment in July 2010 that Section allowed parties to exclude or opt out of the Model Law
in favour of the domestic commercial arbitration legislation.
35
A question considered by the Federal Court of Australia in Castel Electronics and the
Supreme Court of Western Australia - Court of Appeal in Rizhao Steel Holding Group Co Ltd v
Koolan Iron Ore Pty Ltd [2012] WASCA 50 (Rizhao) was whether the 2010 amendment to
Section 21 applied to arbitration agreements entered into prior to that amendment coming
into force.
36
In Castel Electronics the Court indicated that the amended Section 21 had retrospective
application to arbitration agreements entered into before July 2010, whereas the Court in
Rizhao indicated that, at least in circumstances where the arbitration process had begun at
9
the time when the amendments came into force, the Section applied prospectively. The
views of each Court are obiter dicta. In Castel Electronics the arbitration clause did not
purport to exclude the Model Law, whereas in Rizhao the arbitration clause did.
37
Therefore it is unclear whether the amended Section 21 applies to all arbitration agreements
entered into before the amendment came into force.
38
In May 2012 Professors Richard Garnett and Luke Nottage published a research paper
entitled What Law (If Any) Now Applies to International Commercial Arbitration in Australia?
(at http://ssrn.com/abstract=2063271) , in which they highlight uncertainty created by the
amendments to the IAA.
39
The authors argue that those amendments did not indicate clearly whether some were
intended to apply to international arbitration agreements which specify an Australian
arbitration seat and which were concluded before the 2010 amendments, especially if the
parties had expressly or impliedly excluded the Model Law, as provided for in Section 21 of
the IAA prior to its 2010 amendment.
40
They recommend further amendments be made promptly to the IAA to clarify various issues
left unclear or not covered by the 2010 amendments, including:
a clarification that the amended Section 21 does not have retrospective effect.
b limitation of a tendency among some Australian courts to infer that a selection of
arbitration rules amounts to an implied exclusion of the Model Law under Section
21 prior to its 2010 amendment.
Interim measures in support of arbitral proceedings
41
In ENRC Marketing Ag v OJSC “Magnitogorsk Metallurgical Kombinat” [2011] FCA 1371, the
Federal Court of Australia for the first time granted, by way of interim measures, freezing
orders pursuant to Article 17 of the Model Law, in support of arbitral proceedings which
were seated in a foreign jurisdiction. These orders resulted from an ex parte application of
the claimant (ENRC). The only connection to Australia in those proceedings was the location
of assets of the respondent (MMK).
42
In this case ENRC and MMK were parties to a long-term supply contract for the provision of
bulk quantities of iron ore under which a dispute arose and arbitration proceedings were
commenced in Switzerland. ENRC sought these orders to ensure that shares of an Australian
publicly listed company, which were held by a nominee for the benefit of MMK, were not
placed beyond the reach of ENRC, for purposes of being able to enforce any arbitration
award which might be made in the Swiss arbitration proceedings. The orders were granted
on the basis that ENRC provided security.
Sufficiency of reasons in arbitral awards
43
In Westport Insurance Corporation & Ors v Gordian Runoff Limited [2011] HCA 37 the High
Court of Australia found that the standard of reasoning required by an arbitrator is not a
10
“judicial standard” (para 53). The case was decided under the 1984 Act, by Section 29(1)(c)
of which arbitrators are required to “include in the award a statement of the reasons for
making the award”. There are similar obligations in the Commercial Arbitration Act 2010
(NSW) (2010 Act) at Section 31(3) and in the IAA(Article 31(2) of the Model Law), namely
“the award must state the reasons upon which it is based”.
44
The High Court, whilst declining to comment on the standard of reasoning required in an
international arbitration, found that the adequacy of reasons depends on the nature of the
dispute and the particular circumstances of the case. The Court also found that what is
required, for the purposes of the appeal provisions in the 1984 Act (Section 38(5)(b)(i)) is
that “the existence of error be manifest on the face of the award, including the reasons
given by the arbitrator, in the sense of apparent to that understanding by the reader of the
award.” (para 42).
45
The High Court also held that “no wholly satisfactory formula can be found to flesh out the
requirements of Section 29(1)(c)” of the 1984 Act.The Court did not specifically endorse the
applicable standard for a reasoned award, as stated by Donaldson LJ in Bremer
Handelsgesellschaft v Westzucker GmbH (No 2) [1981] 2 LLR 130 at 132-133, namely:
“All that is necessary is that the arbitrators should set out, what, on their view of the
evidence, did or did not happen and should explain succinctly why, in the light of what
happened, they had reached their decision and what that decision is.”
It did however accept the submissions of the appellants that this standard should be applied
in these circumstances (para 54).
46
Given that under the 2010 Act an award can only be appealed on a question of law (Section
34A(3)), it remains to be seen whether inadequate reasons could be considered as a basis for
an appeal and further whether they could be considered as a basis for refusing enforcement
of an award.
47
For further discussion on the High Court decision see the paper entitled “Sufficiency of
Reasons in Arbitration Awards” presented by Geoff Farnsworth at the Fall Meeting of the
Maritime Law Associations of the United States, Canada, Australia and New Zealand held in
Hawaii in December 2011, at www.mlaanz.org.au .
Legislative reform of domestic arbitration in Australia
48
In 2010 the Standing Committee of Attorneys-General agreed to implement the Model Bill
into the domestic commercial arbitration regime, which represented a significant departure
from the current regime, which had been introduced in the 1980s. The Model Bill, by
adopting the Model Law, is intended to modernise the domestic regime and to bring it into
line with the international regime.
49
The key changes contained in the Model Bill include provisions relating to a mandatory stay
of proceedings, limited rights of appeal, interim measures, confidentiality and limited judicial
intervention.
11
50
As at 1 September 2012 the Model Bill has been introduced by new Commercial Arbitration
Acts which are in force in New South Wales, Victoria, South Australia and the Northern
Territory. That legislation is not yet in force in Tasmania.
12