International Commercial Arbitration in Australia: Judicial Control over Arbitral Awards

30 Pages Posted: 3 May 2019 Last revised: 21 Jun 2019

See all articles by Nobumichi Teramura

Nobumichi Teramura

University of Sydney Law School; Adelaide Law School

Luke R. Nottage

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

James Morrison

Morrison Law

Date Written: April 10, 2019

Abstract

Geographical remoteness has not prevented Australia from pursuing its ambition to become a major hub for international commercial arbitration (ICA). While regional competitors in the Asia-Pacific region such as Singapore and Hong Kong have already achieved great success in the arbitration world, Australia’s ‘Tyranny of Distance’ requires extra efforts to attract ICA cases. Recent marketing from the Australian government emphasises (1) a harmonised legal framework for ICA in line with international standards; (2) sophisticated arbitration institutions; and (3) some of the world’s leading arbitration practitioners.

While these factors do reveal strong potential to attract ICA cases, to ensure that this goes beyond a mere possibility, the Australian government and judiciary are making quite concerted broader efforts. The former has recently become more vigorous in marketing Australia-based ICA in and out of the country. The latter has generally tried to issue pro-arbitration judgments particularly over the last ten years, and in public speeches or publications leading judges have been actively summarising and promoting Australian developments both domestically and world-wide. However the court system has structural problems, due to the shared ICA jurisdiction of State and Territory Courts alongside the Federal Courts, compared to the unitary system in Hong Kong and Singapore. There are also persistent delays in court-related ICA matters under the IAA, even in the Federal Court of Australia. Nonetheless, perfection is never attainable.

The rest of this paper argues that Australia has significantly improved legal environment for ICA in line with international standards, focusing on the main topics identified for a wider cross-jurisdictional research project: (1) arbitrator bias; (2) conflicts of interests; (3) procedural irregularities and arbitrator’s misconduct during proceedings; (4) arbitrability (objective arbitrability) (5) judicial interpretation of arbitration clauses (subjective arbitrability); and (6) enforceability of arbitral awards.

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

JEL Classification: K10, K30

Suggested Citation

Teramura, Nobumichi and Nottage, Luke R. and Morrison, James, International Commercial Arbitration in Australia: Judicial Control over Arbitral Awards (April 10, 2019). Sydney Law School Research Paper No. 19/24. Available at SSRN: https://ssrn.com/abstract=3379494 or http://dx.doi.org/10.2139/ssrn.3379494

Nobumichi Teramura

University of Sydney Law School ( email )

Sydney
Australia

Adelaide Law School ( email )

Australia

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

James Morrison

Morrison Law ( email )

809 Mullengudgery Road
Sydney, NSW 2000 2825
Australia

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