Arbitration agreements

What are the formal requirements for an enforceable arbitration agreement?

Under the Arbitration Acts, an arbitration agreement must exist in writing. However, a broad understanding of ‘writing’ is taken to include: electronic communications; any record of the agreement irrespective of whether it was concluded orally; or the exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.

Arbitral procedure

Does the domestic law contain substantive requirements for the procedure to be followed?

The parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. Of course, this is subject to the overriding duty imposed to treat the parties equally, and provide them with a reasonable opportunity to present their case.


When and in what form must the award be delivered?

Domestic arbitration law imposes no time limits on the delivery of an award.

The parties can, however, agree to this, and many arbitral institutions also contain such limits.


On what grounds can an award be appealed to the court?

An appeal from an award can be made on a question of law only if the parties agree that an appeal can be brought, and the court grants leave. The court, however, must not grant leave unless the following four conditions are satisfied:

  • the determination of the question will substantially affect the rights of a party;
  • the question is one that the tribunal was asked to determine;
  • the decision of the tribunal is either obviously wrong, or is of general public importance and the decision is at least open to serious doubt; and
  • that despite the arbitration agreement of the parties, it is just and proper for the court to determine the question.

An appeal must be brought within three months.

After an appeal is heard by the court, a party can bring a further appeal as against that court’s judgment. Importantly, however, this is no longer an appeal against the award itself, but rather an appeal against the lower court’s judgment.


What procedures exist for enforcement of foreign and domestic awards?

With regard to domestic awards, an arbitral award is to be recognised as binding and, upon application to the court, can be enforced. The only exception to this is if the opposing party can convince the court that it should not recognise or enforce the award on the grounds found in section 36 (which mirror the grounds found in the Model Law and the New York Convention).

With regard to foreign awards, section 8 of the International Arbitration Act has the same effect as that described above for domestic awards. The courts do not have discretion to determine whether to recognise and enforce the award, but must do so unless one of the limited grounds provided are satisfied. This reflects the pro-arbitration stance of Australian arbitration law.