International Arbitration in Australia: Selected Case Notes and Trends

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Abstract

This article briefly considers caseload statistics and aggregate trends regarding International Arbitration Act 1974 (Cth) matters heard by Australian courts. It then provides selective case notes on 11 judgments rendered since 2010, querying the reasoning and application of the Act in several cases. In light also of some drafting infelicities in the 2010 amendments, the article concludes that Australia should consider another round of broader statutory reforms. This should be inspired by the legislative activism of major Asia-Pacific venues for international commercial arbitration, especially Hong Kong and Singapore, with similar legislation based on the UNCITRAL Mode/Law.

Introduction: Australia's New Regime for International Arbitration

On 6 July 2010, Australia amended its International Arbitration Act 1974 (Cth) ('IAA'), partly to give effect to most of the revisions made in 2006 to the United Nations Commission on International Trade Law ('UNCITRAL') Model Law on International Commercial Arbitration ('Mode/Law'), included as sch 2 to the IAA. The original Model Lan, approved by UNCITRAL in 1985 as a template aimed at harmonising and modernising national arbitration legislation, was given force of law in Australia by s 16 of the IAA, added in 1989 along with other provisions in pt III aimed primarily at supporting international arbitrations with the seat in Australia. The original IAA, enacted in 1974, aimed to give effect to Australia's obligations under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards ('New York Convention'), included as sch 2 to the IAA. (1) Those provisions, with some amendments added in 2010, are still found in pt II of the IAA. (2)

The Australian states and territories are in the process of updating their uniform commercial arbitration Acts ('Uniform Acts'). (3) Once the new Uniform Acts are enacted throughout Australia, there will be a harmonised arbitral legislative regime for both international and domestic arbitration. However, the new Uniform Acts introduced maintain some differences from the Model Law regime, given that their focus is solely on domestic arbitrations. (4)

A previous article co-written by one of the present authors has outlined the amended IAA's aims and its provisions on writing requirements for arbitration agreements, enforcement of foreign awards, exclusion of the Model Law, interim measures, confidentiality, other substantive matters, and the temporal application of the 2010 amendments. It concluded that die scope of the 2010 amendments was somewhat limited and unadventurous, but that nevertheless they should significantly enhance the legal regime for international commercial arbitration in Australia. (5) An article written by another of the present authors argued that it would have been better for the Commonwealth to enact a single arbitration Act covering both domestic and international arbitration and conferring exclusive jurisdiction on a single court. (6)

These recent amendments to the IIA were introduced after a consultation period of about 18 months, without scrutiny by a select committee in the Commonwealth Parliament. Regrettably, there are a number of drafting problems with the amending legislation. Some are relatively minor. For example, the amended IAA usefully adopts art 171 of the revised Model Law, allowing parties to international arbitration agreements (even with the seat abroad) to apply to specified Australian courts to issue interim measures regarding the arbitral proceedings. (7) It also adopts most revisions providing for greater enforceability of interim measures issued by the arbitral tribunal. However, s 18B of the IAA prohibits applications for 'a preliminary order directing another party not to frustrate the purpose of an interim measure requested', without clarifying whether a party may apply ex parte to the tribunal simply for an interim measure. …