Originally from:
World Arbitration Reporter - 2nd Edition - Looseleaf
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AUSTRALIA
Alex Baykitch*
I. INTRODUCTION
A. Current Status of the Law and Arbitration
1. Overview
Over the last two decades, Australia has developed a strong
arbitration culture and is an attractive forum for the resolution of
disputes as an established common law jurisdiction positioned in the
Asia-Pacific region with English as its national language. It is also a
forum which provides a neutral seat with a modern legislative
framework, a supportive judiciary and world-standard infrastructure.
While cconstruction and engineering disputes have traditionally
been the types of disputes most commonly arbitrated, the increase in
trade between Australia and countries in the Asia-Pacific region has
AUSTRALIA
I. INTRODUCTION
A. Current Status of the Law and Arbitration
1. Overview
2. Distinction between National and International
Arbitration
B. Practice of Arbitration
1. Frequency of Arbitration as Opposed To
Litigation
2. Arbitration Institutions and Statistics
II. JURISDICTION OF THE ARBITRAL TRIBUNAL
A. Arbitration Agreement
1. Arbitration Clause and Submission
Agreement
2. Essential Content of the Arbitration
Agreement
3. Form of the Arbitration Agreement
4. Incorporation of an Arbitration Clause Contained
in General Terms and Conditions
5. Law Applicable to the Interpretation of
Arbitration Clauses
6. Binding Effect of an Arbitration Clause on
Third Parties
a) Multi-Party Situations
b) Admissibility of third party participation
without being a claimant or respondent
7. Termination of an Arbitration Agreement by
a Party
B. Arbitrability
1. Applicable Law
2. Subjective Arbitrability
a) State/state enterprises
b) Legal entities and natural persons
3. Objective Arbitrability
a) Corporations Act 2001 (Cth)
b) Insurance Contracts Act
c) Carriage of Goods by Sea Act
d) Trade Practices Act and Competition and
Consumer Act 2010
C. Competence-Competence
D. Enforcement of Arbitration Agreements within/
by Court Proceedings
1. Court Enforcing an Arbitration Agreement
2. Matter That Is Capable of Settlement by
Arbitration
3. Procedure for Enforcing an Arbitration
Agreement
4. Anti-Suit Injunctions
5. Conditions upon Awarding a Stay
6. “Null and Void, Inoperative or Incapable of
Being Performed”
7. Waiver of Arbitration Agreement
III. THE ARBITRATION TRIBUNAL
A. Number and Qualification of Arbitrators
B. Appointment of Arbitrators
1. Model Law
2. ACICA Rules
3. IAMA Rules
C. Challenge and Replacement of Arbitrators
1. Grounds for Challenging an Arbitrator
2. Procedure and Deadline for Challenging an
Arbitrator
3. Replacement of Arbitrators
IV. THE ARBITRATION PROCEDURE
A. General Principles
1. Extent of Party Autonomy to Determine the
Arbitral Procedure
2. Basic Procedural Principles or Mandatory
Rules to Be Applied by the Arbitral Tribunal
3. Oral Hearing or Proceeding on Basis of Written
Documents
4. Power of the Tribunal (in Particular the
Chairman) to Issue Procedural Orders
5. Distinction of Matters of Substance and Matters
of Procedure
6. Persons Able to Represent a Party in Arbitration
Proceedings
B. Place of Arbitration
1. Determination of the Place of Arbitration in
Absence of an Agreement by the Parties
2. Importance and Legal Effect of the Seat of the
Arbitration
C. Deadlines and Defaults
1. Contents and Form of Submissions
2. Legal Deadlines and Effect of Non-Compliance
D. Facts And Evidence: General
1. Burden of Proof (Inquisitorial/Adversarial
Procedure)
2. Standard of Proof
3. Power of the Tribunal to Determine the
Admissibility and Weight of the Evidence
E. Witnesses
1. The Evidentiary Hearing
2. Limits on Witnesses and Preparation of
Witnesses
3. The Assessment of Evidence
4. Witness Statements
F. Documents
1. Form and Kind of Documents to be Presented
to the Arbitral Tribunal
2. Requirement to Produce Certain Documents
and Consequences of a Failure to Do So
3. Protection of the Confidentiality of Documents
(Legal Privilege etc.)
G. Experts
H. Interim Measures of Protection
1. Kind of Interim Measures Which the Tribunal
May Order
2. Limits of the Tribunal’s Powers to Order
Interim Measures
3. Orders to Provide Security for the Costs of the
Proceeding
I. Assistance by the Courts
1. Extent of Court Assistance in the Gathering of
Evidence
2. Court Ordered Interim Measures of
Protection
V. THE AWARD
A. Types of Award
1. Interim Awards
2. Partial Awards
3. Final Award
4. Default Award
5. Award On Agreed Terms
B. Deliberations and Agreement on the Award
1. Time Limits (and Possible Extensions) for
Making the Award
2. Procedure for the Decision of the Arbitrators
(Majority Vote etc.)
3. Admissibility of Dissenting Opinions
4. Signature by the Arbitrators and Potential
Failure of One Arbitrator to Sign
C. Form of The Award and Deposition
1. Form and Minimum Contents of an Award
2. Requirement to Give Reasons in the
Award
3. Necessity to Specify Place and Time Where
and When the Award Was Made
4. Other Requirements (Registration,
Delivery etc.)
D. Applicable Substantive Law
1. Party Autonomy to Choose the Applicable
Substantive Law or Rules of Law
2. Decisions According to Equity or As Amiable
Compositeur
3. Application of Lex Mercatoria, General
Principles etc
4. Applicable Substantive Law Absent a Choice
of Law by the Parties
E. Settlement
F. Costs of the Arbitration
1. General Allocation of the Costs of the
Proceedings
2. Deposits or Advances for Costs or Fees
3. Costs of the Administration by an Arbitration
Institution
4. Arbitrators’ Fees: Law and Practice,
Judicial Control
5. Time and Form of the Decision on Costs
G. Publication of the Award
VI. AMENDMENT AND CHALLENGE OF THE AWARD AND
LIABILITY OF ARBITRATORS
A. Amendment, Correction or Interpretation
of the Award
B. Appeal on the Merits
1. Admissibility and Procedure of an Appeal
on the Merits
C. Setting Aside the Award
1. Reasons for Setting Aside an Award
2. Procedure and Deadlines for Challenging an
Award
3. Effect of a Court Decision Which Sets the
Award Aside
4. Appeal against the Courts Decision to Set Aside
or Not Set Aside the Award
D. Liability of Arbitrators
1. Duties and Liabilities of Arbitrators regarding
the Conduct of the Proceeding
VII. ENFORCEMENT OF DOMESTIC AWARDS
A. Enforcement under the New CAAs
B. Enforcement under the Old CAAs
VIII. FOREIGN AWARDS
A. Recognition and Enforcement of Foreign Awards
under the New York Convention
1. Procedure for Enforcement
2. Substantive Law on Enforcement
3. Grounds for Refusing Enforcement
B. Enforcement of Foreign Awards under Other
Treaties
1. Washington Convention
2. Enforcement of Awards Other Than in
Accordance With the New York Convention or
Washington Convention
IX. APPENDICES AND RELEVANT INSTRUMENTS
A. National Legislation AUS-138
B. Major Arbitration InstitutionsAUS-139
C. Cases AUS-139
D. Bibliography
Alex Baykitch is a partner of Holman Fenwick Willan LLP, and is Regional Head of International Arbitration for that firm. Mr. Baykitch has extensive experience conducting domestic and international arbitrations frequently arising from oil and gas, mining and resouces, shipping, commodities and aerospace disputes. He has conducted arbitrations arising in the US, UK, Korea, Hong Kong, Paris, Singapore and Kuala Lumpur. Mr. Baykitch also sits as sole and party-appointed arbitrator as well as Chairman. He is Vice President and a fellow of the Australian Centre for International Commercial Arbitration (ACICA). He is a member of the Australian government delegation to the United Nations Commission on International Trade Law (UNCITRAL) working group on Arbitration. Mr. Baykitch is on the panel of foreign arbitrators of the Singapore International Arbitration Centre (SIAC), and China Maritime Arbitration Commission (CMAC). He is an Australian delegate to the ICC Arbitration Commission as well as a member of that commission’s task force on the New York Convention.
