The Top Twenty Things to Change in or around Australia's International Arbitration Act

In L Nottage & R Garnett (eds), 'International Arbiration in Australia', Federation Press: Sydney, 2010

Sydney Law School Research Paper No. 09/19

U of Melbourne Legal Studies Research Paper No. 405

33 Pages Posted: 16 Apr 2009 Last revised: 20 Jun 2013

Luke R. Nottage

The University of Sydney Law School ; The University of Sydney - Australian Network for Japanese Law

Richard Garnett

Melbourne Law School

Date Written: April 13, 2009

Abstract

In November 2008 Australia's Attorney-General's Department (AGD) initiated a Review of its International Arbitration Act (IAA), last substantially revised two decades ago by adopting the 1985 UNCITRAL Model Law on International Commercial Arbitration (ICA). This aims to claw back ground lost to arbitral venues in the Asia-Pacific, which also implies a clearer framework for enforcing foreign awards. A long-term goal may be to revive domestic arbitration in Australia, which has been languishing.

The AGD's Discussion Paper invited Submissions from the public on eight issues in particular. These include whether and how the IAA should incorporate various 2006 amendments to the Model Law, including relaxed writing requirements for arbitration agreements and broader scope for arbitrators to issue interim measures. We urge even more ambitious reform, covering the following "Top Twenty" issues (and numerous other sub-issues) under four headings. Guiding principles should be for the revised IAA to adopt more informal or expeditious solutions, and more global approaches. This is crucial to address the considerable statistical and anecdotal evidence of re-emergent costs and delays in ICA in Australia and world-wide.

Stays
1. Arbitrability - scope and applicable law
2. Arbitration agreement - substantive validity and applicable law
3. Conditions on stays
4. Stays under s 7 vs ML Art 8 - alternatives and time limits
5. Arbitration agreement - formal validity and writing requirements
Enforcing Awards
6. Two issues when Australia implemented NYC Art V
7. Enforcement possible only under IAA s 8
8. Enforcing awards set aside at seat
9. Suspending enforcement if setting aside sought at seat
10. Public policy
11. Interim measures Model Law
12. Opt-out and opt-in
13. Jurisdiction of courts and devolving powers to arbitral institutions
14. Arbitrators ruling on own Jurisdiction
15. Evidence
16. Arb-Med
17. Awards - copies and reasons
18. Other optional provisions - interest, costs and consolidation
Overarching Issues
19. Confidentiality and privacy
20. Overarching principles

Keywords: commercial arbitration, international dispute resolution, mediation, international law, Australian law, comparative law, consumer law, law reform

JEL Classification: K10, K22, K30, K33

Suggested Citation

Nottage, Luke R. and Garnett, Richard, The Top Twenty Things to Change in or around Australia's International Arbitration Act (April 13, 2009). In L Nottage & R Garnett (eds), 'International Arbiration in Australia', Federation Press: Sydney, 2010; Sydney Law School Research Paper No. 09/19; U of Melbourne Legal Studies Research Paper No. 405. Available at SSRN: https://ssrn.com/abstract=1378722

Luke R. Nottage (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

The University of Sydney - Australian Network for Japanese Law

Room 640, Building F10, Eastern Avenue
Sydney, NSW 2006
Australia

Richard Garnett

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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