Recent legislative developments in the International Arbitration landscape will assist parties in Australia who choose to participate in this area of dispute resolution. Revisions to the UNCITRAL International Arbitration Rules alongside recent domestic legislative developments will deliver a more effective mechanism for cross-border dispute resolution.
The recently introduced International Arbitration Amendment Act 2010 (Cth), which commenced in July this year, draws heavily on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. The Act amends the International Arbitration Act 1974 (Cth) and will now provide greater flexibility to parties.
Under the changes, the Federal Court now has a greater role in supervising, assisting and enforcing arbitrations, with the Model Law applying to the exclusion of state Commercial Arbitration Acts. Agreements are now easier to enforce, whether made in writing, orally or electronically. Arbitrators have been granted power to make order for the security for costs as well as the right to grant interim measures to protect parties’ rights, thus creating greater certainty.
Coinciding with changes on the domestic front, UNCITRAL has revised their frequently cited International Arbitration Rules. Arbitration agreements coming into effect after 15 August 2010 will now be subject to the following changes:
- parties no longer have to agree in writing that the UNCITRAL rules will be those adopted in the course of arbitration. Any record that displays an agreement to be bound by the Rules is sufficient: (Article 1)
- the Notice of Arbitration may now be transmitted electronically; arguments that address sufficiency of notice will no longer hinder the constitution of the tribunal: (Articles 2 & 3)
- parties waive the right to bring any claim against the arbitrators and the appointing authority based on any act or omission in connection with the arbitration (other than intentional wrongdoing): (Article 16)
- third parties may now be joined to the proceedings and claims made against them in response to the Notice of Arbitration: (Article 17)
- new interim measures outline the Tribunal’s power to require the applicant to provide security, to alter or terminate the interim measure imposed and use costs and damages awards to prevent or compensate for abuse of the procedure: (Article 26)
- the revised Rules introduce the right to external review and correction of arbitrators' fees: (Article 41)
- an important omission in the Rules is a requirement of confidentiality. As confidentiality is not governed by the rules, parties may wish to include this clause in their individual agreements.