Commercial arbitration is a private out of court dispute resolution process. Two or more parties agree in writing (in an arbitration agreement) to submit any dispute or difference arising between them to arbitration. A sole arbitrator or a panel of arbitrators, acting judicially, apply an adversarial approach and determine the dispute by publishing an award that is final and binding upon the parties unless the law provides otherwise. As a result of recent legislative reforms the opportunities for judicial review are fewer.

The arbitration agreement may specify: the number of arbitrators appointed, the seat of arbitration (the legal place of arbitration), the arbitral institution, the arbitration rules, the applicable law (the substantive law) and the language of proceedings.

In domestic disputes, the process is also governed by the Commercial Arbitration Act of each state and the UNICTRAL Model Law. Under the Act the paramount duty is to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals in a cost effective manner, informally and quickly.

In international disputes, the process is also governed by the International Commercial Arbitration Act 1974 (Cth) and the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards. There are depending upon the nature of the dispute different conventions that can apply e.g Settlement of Investment Disputes.

Arbitration differs from litigation in that: parties may choose the arbitrator(s), it is conducted within set time-frames, the process is confidential, it is less formal (the rules of evidence do not apply), the process is conducted in accordance with the terms of an arbitration agreement, the rules of the nominating arbitral institution and arbitration legislation.

For further information as to the types of matters Troy has been appointed to arbitrate please see: Arbitration (Since 2009).

Do you need to update your dispute resolution clauses?

Many commercial agreements include dispute resolution clauses which provide for the President of certain organisations to nominate an expert (or read more

Blended mediation: Using facilitative and evaluative approaches to commercial disputes (2012) 23 ADRJ 26

My paper titled Blended mediation: Using facilitative and evaluative approaches to commercial disputes appears in the February 2012 edition of read more

The Arbitration case of Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37

For those involved in domestic commercial arbitration, the recent High Court decision enlivens debate as to the finality of arbitration read more

Impugning Expert Determination (2011) 22 ADRJ 247

My paper titled Impugning expert determination: When does an error justify setting aside a determination? appears in the November 2011 read more

The wait and see approach to dispute resolution

The NSW Attorney General, Greg Smith SC, announced on Tuesday, 23 August 2011, that the Government will postpone the introduction read more

The status of arbitration legislative reform in Australia

When it comes to reform with respect to domestic arbitration legislation in Australia, the process is taking time and only read more

Arbitration (Since 2009)

Troy Peisley’s recent arbitration experience includes: Sole arbitrator in a dispute between an international telecommunication company and reseller’s entitlements to read more