New Frontiers for International Commercial Arbitration in Australia: Beyond the ‘Lucky Country’

New Frontiers for International Commercial Arbitration in Australia: Beyond the ‘Lucky Country,’ in Luke Nottage, Shahla Ali, Bruno Jetin and Nobumichi Teramura (eds), New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution. Wolters Kluwer (2020)

32 Pages Posted: 17 Dec 2021

See all articles by Albert Monichino QC

Albert Monichino QC

Victorian Bar

Nobumichi Teramura

University of Brunei Darussalam; The University of Sydney

Date Written: December 2020

Abstract

Australia is not a lucky country in the context of international commercial arbitration (ICA) due to its geographical isolation. However, the problem of remoteness has luckily been ameliorated since the COVID-19 pandemic, thanks to the dramatic spread of videoconferencing technologies in arbitrations and even in some court proceedings. ‘Luck’ can no longer excuse Australia for running behind other regional competitors. Analysing recent cases in Australian judiciary, this chapter puts forward seven proposals for legislative reform that may be useful for Australia to attract more ICA cases on its shores: establishing an indemnity costs principle for failed challenges in ICA matters, notably regarding arbitral awards; enabling Australian courts to issue subpoenas to support foreign arbitrations; clarifying choice of law rules on the existence and scope of arbitration agreements; limiting or excluding the application of Australian Consumer Law (ACL) to cross-border business-to-business transactions; defining ‘Australian Law’; provisions to catch up with recent arbitration innovations; clarifying arbitrability of trust disputes; and centralising judicial power for ICA appeals. Implementing those proposals will pave the way for Australia to become an attractive arbitration hub in the Asia-Pacific region.

Keywords: Arbitration, Australia, comparative law, consumer law, law reform

Suggested Citation

Monichino, Albert and Teramura, Nobumichi, New Frontiers for International Commercial Arbitration in Australia: Beyond the ‘Lucky Country’ (December 2020). New Frontiers for International Commercial Arbitration in Australia: Beyond the ‘Lucky Country,’ in Luke Nottage, Shahla Ali, Bruno Jetin and Nobumichi Teramura (eds), New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution. Wolters Kluwer (2020), Available at SSRN: https://ssrn.com/abstract=3946073

Albert Monichino

Victorian Bar ( email )

C/- List A Barristers
205 William Street
Melbourne, Victoria 3000
Australia
+61 9225 8247 (Phone)

HOME PAGE: http://https://www.vicbar.com.au/profile?2133

Nobumichi Teramura (Contact Author)

University of Brunei Darussalam ( email )

Jalan Tungku Link
Gadong
Bandar Seri Begawan, BE1410
Brunei

HOME PAGE: http://https://ias.ubd.edu.bn/nobumichi-teramura/

The University of Sydney ( email )

Sydney
Australia

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