Abstract

http://ssrn.com/abstract=2063271
 


 



What Law (If Any) Now Applies to International Commercial Arbitration in Australia?


Richard Garnett


Melbourne Law School

Luke R. Nottage


University of Sydney - Faculty of Law; University of Sydney - Australian Network for Japanese Law

May 1, 2012

University of New South Wales Law Journal, Vol. 35, No. 3, pp. 953-78, 2012
Sydney Law School Research Paper No. 12/36

Abstract:     
The amendments to the International Arbitration Act 1974 (Cth) (‘IAA’) enacted on 6 July 2010 aimed to reposition Australia as a leading Asia-Pacific venue for international commercial arbitration. They also aimed to streamline and revitalise domestic arbitration by providing the new template for reforms to the uniform Commercial Arbitration Act (‘CAA’) regime, originally enacted in the mid-1980s based on a more interventionist English law tradition.

Yet the IAA amendments did not clearly indicate whether some were intended to apply to (a) international arbitration agreements, (b) specifying the seat of the arbitration to be in Australia, (c) concluded before 6 July 2010, especially if (d) the parties had expressly or impliedly excluded the UNCITRAL Model Law on International Commercial Arbitration pursuant to the original s21 of the IAA. The present authors had suggested that these amendments, especially s 21 which no longer allows such an exclusion, were not intended or presumed to have retrospective effect. The Western Australian Court of Appeal recently agreed, unlike a Federal Court Judge at first instance, although in obiter dicta in both cases.

This article restates the problems created by the IAA amendments (Part II), analyses Australian case law decided since 6 July 2010 (Part III), and then proposes a way forward – including comparisons with other Asia-Pacific jurisdictions that have recently enacted arbitration law reforms, especially Singapore and Hong Kong (Part IV). It recommends prompt further IAA amendments that: (i) clarify that at least the new s 21 does not have retrospective effect, (ii) limit a persistent tendency among some Australian courts to infer that a selection of arbitration rules amounts to an implied exclusion of the Model Law under the old s 21, and (iii) consider several other reforms addressing other issues left unclear or not covered in the IAA as amended in 2010.

The article also urges reforms to the new uniform CAA regime (including CAA legislation already enacted in NSW, Victoria and South Australia) that ‘save’ old international arbitration agreements satisfying conditions (a)-(d) above. The old CAA legislation, or at least the new CAA regime, should clearly apply to such agreements - otherwise they will fall into a ‘legislative black hole’. That problem arises because states are enacting the new CAAs to apply only to ‘domestic’ arbitration agreements, while simply repealing the old CAAs (which applied also to international arbitration agreements, especially if the parties had agreed to exclude the Model Law as permitted by the old s 21 of the IAA).

Number of Pages in PDF File: 27

Keywords: dispute resolution, international commercial arbitration, Commonwealth law, Asian law, Japanese law, statutory interpretation, presumption against retrospectivity

JEL Classification: K10, K13, K30, K33

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Date posted: May 21, 2012 ; Last revised: November 2, 2012

Suggested Citation

Garnett, Richard and Nottage, Luke R., What Law (If Any) Now Applies to International Commercial Arbitration in Australia? (May 1, 2012). University of New South Wales Law Journal, Vol. 35, No. 3, pp. 953-78, 2012; Sydney Law School Research Paper No. 12/36. Available at SSRN: http://ssrn.com/abstract=2063271

Contact Information

Richard Garnett
Melbourne Law School ( email )
Victoria, 3010
Australia
Luke R. Nottage (Contact Author)
University of Sydney - Faculty of Law ( email )
Faculty of Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia
University of Sydney - Australian Network for Japanese Law
Room 640, Building F10, Eastern Avenue
Sydney, NSW 2006
Australia
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