International Commercial Arbitration in Australia: What's New and What's Next?

Abstract

This paper argues that not much has changed since Australia amended in 2010 its International Arbitration Act, incorporating most of the 2006 revisions to the UNCITRAL Model Law as well as other reforms aimed at positioning Australia as a plausible arbitral venue in the Asia-Pacific region.There is no evidence yet of a broader ‘cultural reform’ that would make international arbitration speedier and more cost-effective – as urged by Australia’s then Attorney-General when introducing the 2010 amendments. In fact, the article first outlines one ongoing cross-border dispute that has engendered at least five sets of proceedings, including a (thankfully unsuccessful) constitutional challenge to the Model Law regime. It then compares case disposition statistics for other Federal Court cases decided three years before and after the amendments, finding only minor differences. The article suggests a range of further revisions needed for the Act that emerge from the dispute including the constitutional challenge, as well as other topics for reform including measures to encourage a more internationalist interpretation of instruments such as the Model Law. Continuous improvement and continuous vigilance are needed for Australia to keep developing distinctive expertise in this complex and evolving field of law and practice.

Keywords: international commercial arbitration, Australian law, Commonwealth law, comparative law, dispute resolution

JEL Classification: K10, K30, K33