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The PDF server is offline. Please try after sometime. In this feature article we look at the factors which have contributed to the increase in the number of international arbitrations seated in Australia and parties choosing to arbitrate under the auspices of the Australian Centre for International Commercial Arbitration ACICA. We also highlight the particular issues parties need to bear in mind when agreeing to arbitration in Australia.
Australia has consistently had a reputation for being a safe, neutral seat for arbitration, supported by a stable political environment, a well-developed and independent legal system and a pool of sophisticated arbitrators and counsel, with a deep understanding and appreciation of issues prevalent in the Australasian landscape. The Australian International Disputes Centre based in Sydney has provided a world-class venue for arbitrations since opening its doors in Since undergoing significant amendments in , the IAA now contains important provisions on obtaining from, and enforcing interim measures made by, the arbitral tribunal, confidentiality of information relating to the arbitral proceedings, and consolidation of two or more arbitrations.
The Australian courts have also demonstrated a good track record of enforcing arbitral agreements and awards. Adding to the appeal of arbitrating in Australia is the availability of an institution with a set of rules which are at the forefront of international best practice. With the combination of an advanced legislative regime supporting arbitration, and a set of modernised institutional rules, it is unsurprising that both Australia as a seat of arbitration, and ACICA as the administering body, have become increasingly popular in recent years.
Furthermore, the number of disputes being arbitrated in Australia or involving Australian parties has particularly grown in the energy and resources sector. The application for emergency arbitration may be made at the same time, or following the filing of the notice of arbitration. ACICA will use its best endeavours to appoint an emergency arbitrator within one business day. Once appointed, the emergency arbitrator is required to decide the application within five business days. The emergency interim measure is binding on the parties.
Confidentiality: Parties and arbitrators are required to keep confidential all matters relating to the arbitration, the award, the materials created for the purposes of the arbitration, and the documents produced by parties to the arbitration. To the extent that a witness is given access to evidence or other information produced in the arbitration, the party calling the witness is responsible for the maintenance of confidentiality by the witness.
Interim measures: Parties may apply to the arbitral tribunal for interim measures, including any temporary measure ordering a party to preserve evidence that may be relevant to the dispute, or provide security for legal costs. An interim measure ordered by the tribunal is enforceable under the IAA. Rules of evidence: The arbitral tribunal is required to have regard to, although it is not bound to apply, the International Bar Association Rules on the Taking of Evidence in International Arbitration.
Expedited procedure: Separate from the Arbitration Rules, ACICA also has Expedited Arbitration Rules, which provide a simplified arbitration procedure whereby a sole arbitrator determines the dispute based on documents, without the need for a hearing unless exceptional circumstances exist, and renders a final award within four or five months.
In the absence of such agreement, ACICA will determine the appropriate number of arbitrators usually one or three , taking into account all relevant circumstances.
The parties are free to appoint any arbitrator of their choice. ACICA arbitration is generally considered a relatively inexpensive option. Arbitrators are generally remunerated on the basis of an hourly rate. This is in contrast to some other institutions, such as the Singapore International Arbitration Centre, where arbitrators charge a fixed fee based on the amount in dispute.
Issues when arbitrating in Australia We highlight below some issues which parties may wish to consider when arbitrating in Australia, or when entering into arbitration agreements providing for arbitration in Australia. Domestic and international arbitration regimes: There are separate statutory regimes for domestic arbitrations governed by State and Territory legislation and international arbitrations governed by the IAA, which is Commonwealth legislation. Opt in and opt out provisions: The IAA contains a number of optional provisions.
Examples of "opt in" provisions i. Examples of "opt out" provisions i. Arbitrability: Certain disputes are not arbitrable as a matter of Australian law. For example, there is legislation voiding arbitration clauses in insurance contracts, although this does not prevent parties from agreeing to arbitrate after a dispute arises.
Similarities with court processes: There may be a degree of inclination on the part of arbitration practitioners to mould the arbitration process to reflect court procedure, which they are accustomed to and familiar with. This may include importing into the arbitration features of litigation in Australia such as discovery of documents, representation by barristers and cross-examination of witnesses. Med-arb: Med-arb is a hybrid process of mediation and arbitration. While med-arb has gained some momentum in Asia, there has been little uptake in Australia.
Please click on the links below for the other articles in the November Arbflash:.