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

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