Arbitration Law of Australia Practice and Procedure

ABOUT THE AUTHORS

CHAPTER 1—INTRODUCTION

1.1 Current Status of the Law and Arbitration
1.1.1 Overview
1.1.2 Distinction between National and International Arbitration

1.2 Practice of Arbitration
1.2.1 Frequency of Arbitration as Opposed to Litigation
1.2.2 Arbitration Institutions and Statistics

CHAPTER 2—JURISDICTION OF THE ARBITRAL TRIBUNAL

2.1 Arbitration Agreement
2.1.1 Arbitration Clause and Submission Agreement
2.1.2 Essential Content of the Arbitration Agreement
2.1.3 Form of the Arbitration Agreement
2.1.4 Incorporation of an Arbitration Clause Contained in General Terms and Conditions
2.1.5 Law Applicable to the Interpretation of Arbitration Clauses

2.2 Applicable Substantive Law
2.2.1 Party Autonomy to Choose the Applicable Substantive Law or Rules of Law
2.2.1.1 Mandatory Laws of the Seat
2.2.1.2 Public Policy
2.2.2 Decisions According to Equity or as Amiable Compositeur
2.2.3 Application of Lex Mercatoria, General Principles Etc.
2.2.4 Applicable Substantive Law absent a Choice of Law by the Parties
2.2.5 Binding Effect of an Arbitration Clause on Third Parties
2.2.5.1 Multi-Party Situations
2.2.5.2 Admissibility of Third Party Participation without Being a Claimant or Respondent
2.2.6 Termination of an Arbitration Agreement by a Party

2.3 Arbitrability
2.3.1 Applicable Law
2.3.2 Subjective Arbitrability
2.3.2.1 State/State Enterprises
2.3.2.2 Legal Entities and Natural Persons
2.3.3 Objective Arbitrability
2.3.3.1 Corporations Act 2001 (Cth)
2.3.3.2 Insurance Contracts Act
2.3.3.3 Carriage of Goods by Sea Act
2.3.3.4 Trade Practices Act and Competition and Consumer Act 2010

2.4 Competence-Competence

2.5 Enforcement of Arbitration Agreements within/by Court Proceedings
2.5.1 Court Enforcing an Arbitration Agreement
2.5.2 Matter That Is Capable of Settlement by Arbitration
2.5.3 Procedure for Enforcing an Arbitration Agreement
2.5.4 Procedure for Enforcing an Arbitration Agreement
2.5.5 Conditions upon Awarding a Stay
2.5.6 “Null and Void, Inoperative or Incapable of Being Performed”
2.5.7 Waiver of Arbitration Agreement

CHAPTER 3—THE ARBITRATION TRIBUNAL

3.1 Number and Qualification of Arbitrators

3.2 Appointment of Arbitrators
3.2.1 Model Law
3.2.2 ACICA Rules
3.2.3 IAMA Rules

3.3 Challenge and Replacement of Arbitrators
3.3.1 Grounds for Challenging an Arbitrator
3.3.2 Procedure and Deadline for Challenging an Arbitrator
3.3.3 Replacement of Arbitrators

CHAPTER 4—THE ARBITRATION PROCEDURE

4.1 General Principles
4.1.1 Extent of Party Autonomy to Determine the Arbitral Procedure
4.1.2 Basic Procedural Principles or Mandatory Rules to Be Applied By the Arbitral Tribunal
4.1.3 Oral Hearing or Proceeding on Basis of Written Documents
4.1.4 Power of the Tribunal (in Particular the Chairman) to Issue Procedural Orders
4.1.5 Distinction of Matters of Substance and Matters of Procedure
4.1.6 Persons Able to Represent a Party in Arbitration Proceedings

4.2 Place of Arbitration
4.2.1 Determination of the Place of Arbitration in Absence of an Agreement by the Parties
4.2.2 Importance and Legal Effect of the Seat of the Arbitration

4.3 Deadlines and Defaults
4.3.1 Contents and Forms of Submissions
4.3.2 Legal Deadlines and Effect of Non-compliance

4.4 Facts and Evidence: General
4.4.1 Burden of Proof (Inquisitorial / Adversarial Procedure
4.4.2 Standard of Proof
4.4.3 Power of the Tribunal to Determine the Admissibility and Weight of the Evidence

4.5 Witnesses
4.5.1 The Evidentiary Hearing
4.5.2 Limits on Witnesses and Preparation of Witnesses
4.5.3 The Assessment of Evidence
4.5.4 Witness Statements

4.6 Experts

4.7 Documents
4.7.1 Form and Kind of Documents to Be Presented to the Arbitral Tribunal
4.7.2 Requirement to Produce Certain Documents and Consequences of a Failure to Do So
4.7.3 Protection of the Confidentiality of Documents (Legal Privilege Etc.)

4.8 Interim Measures of Protection
4.8.1 Kind of Interim Measures Which the Tribunal May Offer
4.8.2 Limits of the Tribunal’s Powers to Order Interim Measures
4.8.3 Orders to Provide Security for the Costs of the Proceeding

4.9 Assistance by the Courts
4.9.1 Extent of Court Assistance in Gathering of Evidence
4.9.2 Court Ordered Interim Measures of Protection

CHAPTER 5—THE AWARD

5.1 Types of Award
5.1.1 Interim Awards
5.1.2 Partial Awards
5.1.3 Final Award
5.1.4 Default Award
5.1.5 Award on Agreed Terms

5.2 Deliberations and Agreement on the Award
5.2.1 Time Limits (and Possible Extensions) for Making the Award
5.2.2 Procedure for the Decision of the Arbitrators (Majority Vote Etc.)
5.2.3 Admissibility of Dissenting Opinions
5.2.4 Signature by the Arbitrators and Potential Failure of One Arbitrator to Sign

5.3 Form of the Award and Deposition
5.3.1 Form and Minimum Contents of an Award
5.3.2 Requirement to Give Reasons in the Award
5.3.3 Necessity to Specify Place and Time Where and When the Award Was Made
5.3.4 Other Requirements (Registration, Delivery Etc.)

5.4 Settlement

5.5 Costs of the Arbitration

5.5.1 General Allocation of the Costs of the Proceedings
5.5.1.1 Discretion to Award of Costs
5.5.1.2 Assessment of Parties’ Costs
5.5.2 Deposits or Advances for Costs or Fees
5.5.3 Costs of the Administration by an Arbitration Institution
5.5.4 Arbitrators’ Fees: Law and Practice, Judicial Control
5.5.5 Time and Form of the Decision Costs

5.6 Publication of the Award

CHAPTER 6—AMENDMENT AND CHALLENGE OF THE AWARD AND LIABILITY OF ARBITRATORS

6.1 Amendment, Correction or Interpretation of the Award

6.2 Appeal on the Merits
6.2.1 Admissibility and Procedure of an Appeal on the Merits

6.3 Setting Aside the Award
6.3.1 Reasons for Setting Aside the Award
6.3.2 Procedure and Deadlines for Challenging an Award
6.3.3 Effect of a Court Decision Which Sets the Award Aside
6.3.4 Appeal against the Courts Decisions to Set Aside or Not Set Aside the Award

6.4 Liability of Arbitrators
6.4.1 Duties and Liabilities of Arbitrators regarding the Conduct of the Proceeding

CHAPTER 7— ENFORCEMENT OF DOMESTIC AWARDS

7.1 Enforcement under the New CAAs
7.2 Enforcement under the Old CAAs

CHAPTER 8—ENFORCEMENT OF FOREIGN AWARDS

8.1 Recognition and Enforcement of Foreign Awards under the New York Convention
8.1.1 Procedure for Enforcement
8.1.2 Substantive Law on Enforcement
8.1.3 Grounds for Refusing Enforcement

8.2 Enforcement of Foreign Awards under Other Treaties
8.2.1 Washington Convention
8.2.2 Enforcement of Awards Other Than in Accordance With the New York Convention or Washington Convention

APPENDIX

A. Commentary: Australian Centre for International Commercial Arbitration (ACICA)
Doug Jones
B. Rules of the ACICA
C. Expedited Rules of the ACICA
D. International Arbitration Act of 1974

Alex Baykitch is a Partner at King & Wood Mallesons in Sydney, Australia where his practices focuses on litigation & dispute resolution and international arbitration. Alex has over 20 years’ experience in the area of cross border litigation and international arbitration. Described by Chambers Global as "fast rising and energetic [lawyer]. . .who has developed into one of Australia's strongest arbitration counsel", Alex has particular experience of dispute in major construction, engineering and infrastructure.

Alex is consistently listed as a leading individual in legal directories, for his expertise in cross border litigation and international arbitration, and sits as sole and party appointed arbitrator as well as chairman of arbitral tribunals conducted under the ICC, LCIA, KLRCA, and UNCITRAL Rules. Alex is a Member of the Australian Government's Delegation to UNCITRAL's Working Group on Arbitration. He is also an Australian Delegate to the ICC Arbitration Commission and served on the Commission's Task Force on the New York Convention. Until recently, Alex was the Vice-President of the Australian Centre for International Commercial Arbitration (ACICA) and is a fellow of ACICA.

He is also a Member of the Arbitration panels of the ICC International Court of Arbitration, Singapore International Arbitration Centre, China Maritime Arbitration Commission, the Korean Commercial Arbitration Board and ACICA.

He has presented at numerous conferences and written on various topics in relation to international arbitration and is a co-author for the Australian chapter of World Arbitration Reporter.


Professor Doug Jones AO is a Sydney-based Partner in the Australian law firm of Clayton Utz where he heads the International Arbitration and Major Projects Groups of the firm. Doug is a door tenant at Atkin Chambers, London.

His experience includes acting as Arbitrator and Counsel in major international arbitrations, and advising on major projects in the areas of buildings, road and rail infrastructure, power, potable and waste water, mining infrastructure and processing, and on and offshore oil and gas. Doug sits as an international commercial and investor / state arbitrator.

Doug is currently President of the Australian Centre for International Commercial Arbitration, past President of the Chartered Institute of Arbitrators, London (2011), and a Member of the LCIA Court. He is an Australian Government nominee on the ICSID panel of arbitrators and a foundation fellow and graded arbitrator of the Institute of Arbitrators & Mediators Australia, Fellow, Arbitrators and Mediators Institute of New Zealand, President, Dispute Review Board Foundation Australia, member of the ICC Australia Arbitration Committee, and a member of a number of panels of International Arbitral bodies. In January 1999 Doug was made a Member of the Order of Australia in recognition of his services to construction law and dispute resolution, and in June 2012 Doug Jones was made an Officer of the Order of Australia, for distinguished service to the law as a leader in the areas of arbitration and alternative dispute resolution, to policy reform, and to national and international professional organisations.

He is Co-Editor in Chief of the International Construction Law Review and Editorial Board Member of International Trade and Business Law Review, India Business Law Journal and Global Arbitration Review. He is International correspondent for Australia of the Romanian Review of Arbitration. He lectures, and authors articles for publication, within Australia and internationally.

His expertise in International Arbitration and Construction has regularly been recognised by his peers.
Doug Jones has been described as "a phenomenon" and "the statesman of the industry" by Chambers Asia Pacific (2012).

The International Who's Who of Commercial Arbitration 2011 names Doug Jones as one of the Leaders Worldwide and is one of only three highly recommended individuals in Australia. It notes that "Doug Jones at Clayton Utz is held in the highest esteem".