Deference of Seat or Foreign Courts to International Commercial Arbitration Tribunals Concerning Procedural Issues: Australia in Regional and Global Contexts

Abstract

This paper, for a conference on different types of deference or shared control over decisions in international arbitration (as outlined in Part 2), examines how both courts at the seat and courts enforcing foreign awards (as outlined generally in Part 3) defer to arbitrators’ decisions regarding procedural matters. Sometimes these matters also generate challenges to arbitrators, under arbitration rules and institutions chosen by the parties (4.1), before ending up before courts at the seat or enforcing foreign awards (Part 4.2).

The paper finds growing deference by courts towards arbitrator decisions on procedure, increasingly only upheld for violations going to fundamental notions of due process shared internationally (Part 5). Focusing on quite indicative Asia-Pacific jurisdictions adopting the UNCITRAL Model Law as well as New York Convention regimes, the analysis tracks more internationalist case law first in Hong Kong, then Singapore, and more recently Australia (Part 5.1). The paper then details Australian case law specifically on challenges to arbitral procedure since 2010, when Australia adopted almost the 2006 Model Law revisions and other amendments to enhance international arbitration, and extended a Model Law core also to domestic arbitration (Part 5.2).

In conclusion (Part 6), growing deference worldwide (suggesting “localised globalisation”) and recently across these three jurisdictions should usefully help address growing concerns about “due process paranoia”, generating more costs and delays in international arbitration. Yet counsel still try to challenge procedures and resultant awards, notably by claiming tribunals exceeded jurisdiction. There may be more scope to do so in federal rather than unitary states, especially perhaps in common law jurisdictions. There is also still significant “glocalisation” even among Model Law based jurisdictions in the common law tradition competing for international arbitration. Interestingly, there has been little discussion about whether seat courts should take an even more deferential approach towards arbitral tribunals and their procedures, thus further narrowing the scope for challenges, compared to courts enforcing foreign awards under the New York Convention.

Keywords: Dispute Resolution, International Arbitration, Comparative Law, Commonwealth Law, Public Policy, Procedure

JEL Classification: K10, K30, K33