When it comes to reform with respect to domestic arbitration legislation in Australia, the process is taking time and only some states have introduced new legislation.
In this post, Troy Peisley summarises the status of recent reform in each State and Territory.
By way of background, there are two legislative regimes. There is Commonwealth and domestic legislation.
The Commonwealth legislation under the International Arbitration Act 1974 (Cth) covers international commercial arbitrations and the enforcement of foreign arbitral awards. The Commonwealth legislation with respect to arbitrations is sanctioned under section 51(xxix) of the Australian Constitution’s external affairs power.
At the State and Territory level the Standing Committee of Attorneys-General (SCAGs) agreed on 7 May 2010, that all states and territories of the Commonwealth would enact uniform national legislation. Until this uniform legislation is enacted, domestic arbitration practice in Australia will continue to vary between jurisdictions.
The current state of play can be summarised as follows as at June 2011:
The States:
- New South Wales – Commercial Arbitration Act 2010 (NSW), NSW was the first State to enact the uniform legislation. NSW first enacted arbitration legislation in 1867, and the new Act repeals the Commercial Arbitration Act 1984 (NSW) and has been in force since 1 October 2010. It applies to arbitrations of disputes in NSW since that date.
- Queensland – Commercial Arbitration Act 1990 (Qld). Still waiting on a Bill to be introduced into Parliament.
- South Australia – Commercial Arbitration and Industrial Referral Agreements Act 1986 (SA). The Commercial Arbitration Bill was introduced into Parliament on 4 May 2011. Still awaiting Royal Assent.
- Tasmania – Commercial Arbitration Act 1986 (TAS). The Commercial Arbitration Bill was given Royal Assent on 16 June 2011, but waiting on commencement date.
- Victoria – Commercial Arbitration Act 1984 (Vic). Still waiting on a Bill to be introduced into Parliament.
- Western Australia – Commercial Arbitration Act 1985 (WA). The Commercial Arbitration Bill was introduced into Parliament on 15 June 2011. Still awaiting Royal Assent.
The Territories:
- Australian Capital Territory – Commercial Arbitration Act 1986 (ACT). Still waiting on a Bill to be introduced into the Legislative Assembly.
- Northern Territory – Commercial Arbitration Act 1985 (NT). The Commercial Arbitration Bill was introduced into Parliament on 5 May 2011. Still awaiting Royal Assent.
The new regime applies to domestic arbitrations and corresponds to the Commonwealth law applying to international arbitration.
Some of the changes of the new regime can be summarised as follows:
- One of the paramount objects of the Act is to provide arbitration procedures that enable commercial disputes to be resolved in a cost effective manner, informally and quickly: section 1C;
- The application of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on the International Commercial Arbitration 1985, with amendments as adopted in 2006 (the Model Law): section 2A;
- If a party knows there is a requirement to raise an objection to a non-compliance without undue delay or within a specified time period, but fails to do so then the right to object will have been waived: section 4;
- No court must intervene except where so provided by the Act: section 5;
- A court must refer matter to arbitration unless agreement is it finds that the agreement is null and void, inoperative or incapable of being: section 8;
- There must be a real danger of bias to create justifiable doubts as to the impartiality or independence of an arbitrator, but it must be brought within 15 days of becoming aware of the grounds otherwise arbitrator can continue: Sections 12 and 13;
- Competence of arbitral tribunal to rule on its jurisdiction (competence competence): Section 16;
- An arbitral tribunal has significant powers to order interim measures (to preserve evidence) and attach conditions to granting: Part 4A. Such that the arbitral tribunal can now make orders with respect to, inter alia, security for costs, discovery of documents and interrogatories, giving of evidence by affidavit: Section 17;
- The conduct of arbitral proceedings: Part 5;
- Parties must not disclose confidential information in relation to the arbitral proceedings unless they opt-out or the Act provides otherwise: sections 27E to 27I. This reverses the common law position of Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10:
- The limited grounds for setting aside as award: Sections 34 and 34A; and
- A right of appeal is only available if both parties agree or opt-in and leave is still required: Section 34A. This is a reversal of the pre-existing situation.
This information is a guide only and should not be used as a substitute for legal advice, readers should make their own enquiries and seek appropriate legal advice.
To nominate Troy Peisley as an arbitrator in a domestic or international commercial dispute contact +612 9929 9333
