Globalisation has a range of impacts. One seen in the law is that increasingly parties are engaging in cross-border transactions and arrangements. Sometimes those transactions or arrangements don’t proceed as everyone involved would wish and disagreements arise. Identifying which system should be used to resolve the dispute can be a difficult question with parties in different countries and subject to different legal systems.
This is not a recent realisation. Over 50 years ago it was recognised that efficient arbitration can provide a means of resolving disputes, potentially in a system rooted in neither of the disputants’ home jurisdictions. For that to work there needed to be international rules for the recognition of arbitration agreements and the enforcement of arbitral awards. The United Nations took up the issue. The result was the New York Convention (the Convention on the Recognition and Enforcement of Foreign Arbitral Awards).
There are now 142 countries, plus the Holy See and the Cook Islands, that have adopted the New York Convention. This means that it is now easier, and often therefore preferable, to enforce a foreign arbitral award rather than a foreign Court’s judgment.
Over the last 50 years a specific body of jurisprudence has developed in relation to international arbitration. It mixes elements of civil law and common law creating a system that is both familiar and distinct for legal professionals from differing backgrounds.
Australia believes it has not been doing enough to get its share of international arbitration and that it could do more to attract international arbitration. It has a lot of natural advantages:
- a first world economy with an open and efficient legal system
- a pool of talented and skilled legal practitioners
- a multicultural society which is familiar with and welcoming to a range of differing cultural backgrounds.
In order to promote Australia, a series of tangible steps have been taken: the international arbitration law has been modernised, the domestic arbitration law has been harmonised with the international arbitration law, there has been investment by Government and private players in constructing specialised arbitration centres and Australia’s Courts have appointed specialist arbitration Justices.
Modernisation of Australia’s international arbitration legislation
The United Nations Commission on International Trade Law (UNCITRAL) developed a Model Law that member States may utilise to assist in the harmonisation of arbitral laws. Australia adopted the Model Law in 1989 but since then the UNCITRAL Model Law has been amended.
Except for one area, ex parte preliminary orders, Australia has now adopted the current UNCITRAL Model Law. Further, Parliament took the opportunity to make a series of changes to its International Arbitration Act to bring it into line with international best practice. For example, Australia’s position on the confidentiality or the absence of an implied confidentiality) in arbitral proceedings was out of step with many other arbitral centres. The International Arbitration Act now creates implied rights of confidentiality for arbitrations in Australia. Other judicial decisions of the past that are seen as out of step with modern arbitral practice will now be subject to legislative amendments to create a modern arbitral environment.
Parties considering Australia as the seat or place for arbitration can be confident that the procedural law applicable to the arbitration will be modern and consistent with international jurisprudence.
Harmonisation of domestic arbitration legislation with its international counterpart
Australia’s domestic arbitration law, while harmonised between the Australian States and Territories, was quite distinct from the international arbitration law. The States and Territories have now agreed to harmonise their domestic arbitration laws with the international arbitration legislation. There will be some differences reflecting the particular requirements for domestic arbitration but the majority of the law will be the same or very similar for domestic and international arbitration.
While this simplifies Australia’s arbitral framework it also has the added advantage that Australian legal practitioners and Courts will now develop greater exposure to the legislation as provisions are consistent thus further broadening Australia’s arbitral expertise. It will also mean that domestic arbitrators will not need to re-familiarise themselves with a significantly different system providing a greater choice in potential arbitrators for parties to select from.
Specialist arbitration lists in State and Federal Courts
A number of the Courts in Australia have also generated specialist arbitration lists with nominated Judicial officers to ensure that parties have their matters heard before Justices experienced in arbitration.
The Australian Federal Court has issued a Practice Note for Proceedings under the International Arbitration Act and also appointed a Judicial Officer in each registry as an Arbitration Coordinating Judge.
The Victorian Supreme Court similarly has created the Arbitration List (List G) of the Commercial Court and has appointed a well known former arbitrator as its Judge in charge of the list. Likewise the New South Wales Supreme Court has its own Commercial Arbitration List Judge. This covers Australia’s two largest cities: Sydney is the capital of the State of New South Wales and Melbourne is the capital of the State of Victoria.
Parties can be confident that the Courts in which they appear will understand the issues and best practice for arbitration.
The new “Australian International Disputes Centre” in Sydney
The New South Wales State Government and the Australian Government have also invested, with the Australian Centre of International Commercial Arbitration and the Australian Commercial Disputes Centre, in the fitting out of a state-of-theart arbitral centre in Sydney. Australia is now well served by several specialist rooms for the holding of arbitration with the most modern and recent being the Australian International Disputes Centre which boasts 10-custom built rooms and full business support services including case management and trust account administration.
Piper Alderman can assist you with arbitration in Australia
Piper Alderman is well placed to assist clients with international arbitration. With offices in four of Australia’s largest cities: Sydney, Melbourne, Brisbane and Adelaide, we have partners who are experienced in domestic and international arbitration.