Australian commercial arbitration 9780409343403, 0409343404


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Table of contents :
Full Title
Copyright
Foreword
Publisher’s Note
Table of Cases
Table of Statutes
Table of Contents
Introduction
Comparative Table
Commencement Information
Opt-out Provisions
Commercial Arbitration Act 2011 (Vic)
Table of Provisions
Table of Amendments
Part 1A — Preliminary
Part 1 — General Provisions
Part 2 — Arbitration Agreement
Part 3 — Composition of Arbitral Tribunal
Part 4 — Jurisdiction of Arbitral Tribunal
Part 4A — Interim Measures
Part 5 — Conduct of Arbitral Proceedings
Part 6 — Making of Award and Termination of Proceedings
Part 7 — Recourse Against Award
Part 8 — Recognition and Enforcement of Awards
Part 9 — Miscellaneous
Part 10 — Savings and Transitional Provisions
Arbitration Rules
New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958)
ACICA and IAMA Arbitration Rules
International Arbitration Rules
Australian Court Procedure
Civil Procedure Act 2010 (Vic) (Extracts)
Table of Provisions
Table of Amendments
Chapter 5 — Appropriate Dispute Resolution
Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) (Extracts)
Table of Provisions
Table of Amendments
Order 9 — Arbitration Rules
Part 1 — General
Part 2 — International Commercial Arbitration
Part 3 — Domestic Commercial Arbitration
Forms
Supreme Court Practice Notes
Supreme Court Rules 2000 (Tas) (Extracts)
Table of Provisions
Table of Amendments
Part 32 — Proceedings Under Particular Statutes
Supreme Court Civil Rules 2006 (SA) (Extracts)
Table of Provisions
Table of Amendments
Chapter 10 — Alternative Dispute Resolution
Part 2 — Arbitration
Chapter 15 — Statutory Proceedings
Part 2 — Proceedings Under Particular Acts
Part 4 — Arbitration Proceedings
South Australia Supreme Court Civil Supplementary Rules 2014 Schedule 3 Approved Forms (Extracts)
Supreme Court Rules 1971 (WA)
Table of Provisions
Table of Amendments
Order 81D — Arbitration Law Rules
Uniform Civil Procedure Rules 1999 (Qld)
Uniform Civil Procedure Rules 2005 (NSW) (Extracts)
Table of Provisions
Table of Amendments
Part 47 — Matters arising under the Commercial Arbitration Act 2010
Supreme Court Rules (NT) (Extracts)
Table of Provisions
Table of Amendments
Chapter 6 — Commercial Arbitration Rules
Order 91 — Commercial Arbitration
Part 1 — General Matters
Part 2 — Offers of Compromise
Further Reading
Index
Recommend Papers

Australian commercial arbitration
 9780409343403, 0409343404

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AUSTRALIAN COMMERCIAL ARBITRATION JOHN J HOCKLEY BSc (Hons), Dip Ed, PhD (UNE); LLB (UNSW), LLM (Melb), Dip Intl Tax (Harv) Barrister of the Supreme Courts of Western Australia, Victoria, New South Wales, Queensland, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory FACICA, MIAMA, Nationally Accredited Mediator (NMAS) Barrister Mediator and Arbitrator, Francis Burt Chambers, Perth Honorary Fellow University of Western Australia

THE HON CLYDE CROFT BEc LLM (Monash), PhD (Cambridge) LFACICA, LFIAMA, JFAMINZ, FCIArb A Judge of the Supreme Court of Victoria (Judge in charge of the Arbitration List for the Commercial Court of the Supreme Court of Victoria) Adjunct Professor of Law, Deakin University

WILLIAM KQ HO BA LLB (Hons) (Deakin) Senior Associate, K&L Gates

KIERAN R HICKIE

BCom LLB (Hons) (Deakin) Barrister-at-law (Vic)

LexisNexis Sydney-Adelaide-Brisbane-Canberra

Melbourne-Perth 2015

AUSTRALIA ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND TAIWAN UNITED KINGDOM USA

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ISBN 9780409343403 (pbk) 9780409343410 (ebk) ©2015 Reed International Books Australia Pty Limited trading as LexisNexis This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Printed in Australia Visit LexisNexis Butterworths at www.lexisnexis.com.au

Foreword The resolution by arbitration of domestic and international commercial disputes is an increasingly important feature of the Australian legal landscape. Its flexibility, confidentiality and speed, and the ability it provides to choose relevant experts as arbitrators, make it an attractive mechanism for the resolution of disputes. This is particularly so in relation to disputes which cross national borders. The provision of legal services in connection with international and domestic arbitration requires a good understanding of the governing law and practice. In Australia, the Commercial Arbitration Acts of the States and the International Arbitration Act 1974 (Cth) now provide for the application of the United Nations International Trade Law Model Law to arbitrations conducted in this country whether they relate to domestic or international disputes. Further, under Art 28 of the Model Law, the arbitral tribunal can “decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute”. There are, of course, other factors which may cause the parties to a dispute to prefer litigation. There is no doubt however, that arbitration is well-established as a preferred mechanism for the resolution of disputes which arise out of multijurisdictional transactions. The choice of domestic arbitration will no doubt be dominated by considerations of cost, efficiency and confidentiality. Both international and domestic arbitration are processes accepted by the judicial branch. In the plurality judgment in TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia1 (TCL) their Honours referred to the features of private arbitration identified by Lord Bingham in The Rule of Law where he spoke of “the appointment of an independent arbitrator, often chosen by the parties, to rule on their dispute according to the terms of reference they give him”. And said: This can only be done by agreement, before or after the dispute arises, but where it is done the arbitrator has authority to make an award which is binding on the parties and enforceable by the process of the courts.2 The plurality in TCL said: The features of private arbitration identified by Lord Bingham underpin the

widely shared modern policy of recognising and encouraging private arbitration as a valuable method of “settling disputes arising in international commercial relations”, a policy reflected in the objects of the IA Act. Parties from different legal systems can agree to resolve an international commercial dispute by arbitration and choose both the law (or laws) to be applied and the processes to be followed.3 The role of domestic arbitration in its own sphere is similarly accepted. The authors of this valuable annotation have used the Commercial Arbitration Act 2011 (Vic) as the common form text for their commentary. Their annotations make extensive reference to extrinsic and comparative materials. They extract and discuss relevant case law in relation to each section of the Act. The authors have spared no effort to make the publication a valuable practical reference for all practitioners in the field, including arbitrators and those who represent parties in the arbitral process. I congratulate them on their work and commend the publication to its readers. Chief Justice Robert French, AC

Publisher’s Note The publisher, authors, contributors and endorsers of this publication each excludes liability for loss suffered by any person resulting in any way from the use of, or reliance on, this publication. © LexisNexis. The legislation reproduced in this work does not purport to be an official or authorised version. The legislation and annotations contained in this publication are current to 1 August 2015. Acknowledgments and Copyright Information Legislation Australian Capital Territory The Australian Capital Territory legislation in this product is reproduced with permission of the Australian Capital Territory Parliamentary Counsel’s Office. Queensland Queensland legislation is reproduced with permission from the State of Queensland, Office of the Queensland Parliamentary Counsel. South Australia South Australian legislative materials are reproduced by permission of the copyright owner, the State of South Australia, but such materials do not purport to be the official or authorised versions. Victoria COPYRIGHT © State of Victoria, Australia, and Reed International Books Australia (Trading as LexisNexis). Copyright in all legislation of the Parliament of the State of Victoria, Australia, is owned by the Crown in Right of the State of Victoria, Australia. DISCLAIMER This product contains an unofficial version of the legislation of the Parliament of the State of Victoria. The State of Victoria accepts no responsibility for the accuracy and completeness of any legislation contained in this product. Western Australia Western Australian legislative materials are reproduced by permission of the

copyright owner, the State of Western Australia, but such materials do not purport to be the official or authorised versions.

Table of Cases References are to paragraph numbers A v B Bank [1993] QB 311 …. [s 27F.50] ABB Service Pty Ltd v Pyrmont Light Rail Co Ltd (2010) 77 NSWLR 321 …. [s 33.10] ABC Co v XYZ Co Ltd [2003] 3 SLR(R) 546 …. [s 34.75] ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896; BC200206142 …. [s 8.5], [s 8.20] — v— [2003] NSWSC 1230 …. [s 35.20] ACN 006 397 413 Pty Ltd (formerly called Palace Entertainment Corp P/L) v International Movie Group (Canada) Inc & Movie Group Inc [1997] 2 VR 31 …. [s 34.45] ACN 074 971 109 (as trustee for the Argot Unit Trust) and Pegela Pty Ltd v National Mutual Life Association of Australasia Ltd (ACN 004 020 437) [2013] VSC 137 …. [s 33B.60] AED Oil Ltd v Puffin FPSO Ltd (No 2) (2010) 27 VR 22; 265ALR 415 …. [s 2.80] Age Old Builders Pty Ltd v Swintons Pty Ltd (2003) 20 VAR 200 …. [s 2.15], [s 7.5], [s 8.30] Agromet Motoimport Ltd v Maulden Engineering Co (Beds) Ltd [1985] 2 All ER 436; [1985] 1 WLR 762 …. [s 35.5] Ah Toy v Registrar of Companies (NT) (1986) 10 FCR 356; 72 ALR 107 …. [s 33.25] Ahong Construction (S) Pte Ltd v United Boulevard Pte Ltd [2000] 1 SLR 749 …. [s 34A.10] Aiton (Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 …. [s 8.15] AKN v ALC [2015] SGCA 18 …. [s 34.40] Ali Shipping Corp v Shipyard Trogir [1998] 2 All ER 136; [1999] 1 WLR 314 …. [s 27F.25], [s 27I.30] Alinta Sales Pty Ltd v Woodside Energy Pty Ltd [2008] WASC 304 …. [s 27A.5]

Allmore Constructions Pty Ltd v Failli (2004) 20 BCL 65 …. [s 28.45], [s 28.55] Altain Khuder LLC v IMC Mining Inc (2011) 276 ALR 733 …. [s 16.5] Alvaro v Amaral (No 2) [2013] WASCA 232; BC201303381 …. [s 34A.90] —v Temple [2009] WASC 205; BC200906816 …. [s 31.5], [s 31.30], [s 34A.110] —v— [2012] WASC 98 …. [s 34A.110] Amcor Packaging (Aust) Pty Ltd v Baulderstone Pty Ltd [2013] FCA 253; BC201301419 …. [s 8.5] American Cynamid Co v Ethicon Ltd [1975] AC 396; [1975] All ER 504 …. [s 17A.10] American Diagnostica Inc v Gradipore Ltd (1998) 44 NSWLR 312 …. [s 20.30] Anaconda Operations Pty Ltd v Fluor Australia Pty Ltd [2003] VSC 275; BC200304531 …. [s 31.5] Andent Pty Ltd v Thornhill Machine Tools Australia Pty Ltd [2014] VSC 647; BC201410774 …. [s 34.35], [s 34.40], [s 34.50], [s 35.5] AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14 …. [s 34.40] Arnwell Pty Ltd v Teilaboot Pty Ltd [2010] VSC 123; BC201002119 …. [s 5.5] Ashjal Pty Ltd v Elders Toepfer Grain Pty Ltd [2012] NSWSC 545 …. [s 34A.15] Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 488; [1988] 2 All ER 577; [1988] 3 WLR 867; (1987) 37 BLR 55 …. [s 8.5] Attorney-General v Guardian Newspapers Ltd [No 2] [1990] 1 AC 109 …. [s 27H.10] — v Jonathan Cape Ltd [1976] QB 752 …. [s 27H.10] Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 …. [s 27H.10] Auburn Council v Austin Australia Pty Ltd (2004) 22 ACLC 766; (2005) 21 BCL 142 …. [s 33A.20] — v Austin Australia Pty Ltd (in liq) [2007] NSWSC 130 …. [s 24B.35] Australian Liquor, Hospitality and Miscellaneous Workers Union v Homecare Transport Pty Ltd (2002) 117 FCR 87 …. [s 8.15A] Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; 112 ALR 627 …. [s 1AC.25] Australian Sports Anti-Doping Authority Australian Football League v 34 Players [2014] VSC 635; BC201410881 …. [s 27A.5]

— v— [2015] VSC 14; BC201500195 …. [s 27A.20] Australian Transport Insurers Pty Ltd v Graham Phillips Road Transport Insurance Pty Ltd (1986) 10 ALR 177 …. [s 33B.60] Azov Shipping Co v Baltic Shipping Co [1999] 1 Lloyds Rep 68 …. [s 34.30] Babanaft International Co SA v Avant Petroleum Inc (The Oltenia) [1982] 3 All ER 244; [1982] 1 WLR 871 …. [s 27J.20] Ballantyne & Sullivan v Electricity Trust of South Australia (1994) 62 SASR 133 …. [s 33B.15] Berbett Pty Ltd v Hansa [1976] VR 385 …. [s 33B.60] Best (A) Floor Sanding Pty Ltd v Skyer Australia Pty Ltd [1999] VSC 170 …. [s 34.65] BHP Billiton Ltd v Oil Basins Ltd [2006] VSC 402 …. [s 31.30] BHPB Freight Pty Ltd v Costco Oceania Chartering Pty Ltd (2008) 168 FCR 169; 247 ALR 369 …. [s 2.80] BP Refinery Western Port Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 …. [s 34A.15] Brazis v Rosati (2014) 102 ACSR 626 …. [s 8.15] Bremer Handelsgesellschaft mbH v Westzucker Gmbh (No 2) [1981] 2 Lloyd’s Rep 130 …. [s 31.30] Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 …. [s 24B.35] Broken Hill Proprietary Co Ltd, The v Dargi [1996] 2 VR 117 …. [s 34A.25] Brunswick Bowling Billiards Corp v Shanghai Zhonglu Industrial Co Ltd [2011] 1 HKLRD 707 …. [s 34.55] BTR Engineering (Aust) Ltd v Dana Corp [2000] VSC 246 …. [s 7.30] Calderbank v Calderbank [1976] Fan 93 …. [s 33B.55] Cameron Australasia Pty Ltd v AED Oil Ltd [2015] VSC 163; BC201503256 …. [s 34.40] Canadian National Railway Co v Lovat Tunnel Equipment Inc (1999) 174 DLR (4th) 385 …. [s 8.5] Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2012] WASC 228; BC201204659 …. [s 8.5] — v— (2013) 298 ALR 666 …. [s 8.5], [s 17.5] Caratti v Caratti (No 2) [2014] WASC 65; BC201401290 …. [s 8.15], [s 8.55] Cargill International SA v Peabody Australia Mining Ltd (2010) 78 NSWLR 533 …. [s 34A.40], [s 34A.55]

Carob Industries Pty Ltd (in liq) (t/as Foremost Equipment) v Simto Pty Ltd (2000) 18 ACLC 177 …. [s 25.35] Carter Holt Harvey Ltd v Genesis Power Ltd [2006] 3 NZLR 794 …. [s 8.5] Carus-Wilson and Greene, Re (1887) 18 QBD 7 …. [s 1.5] Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (2012) 201 FCR 209; 287 ALR 297 …. [s 34.63], [s 34A.10] — v TCL Air Conditioner (Zhongshan) Co Ltd (No 2) [2012] FCA 1214; BC201208661 …. [s 34.51], [s 34.63] Cetelem SA v Roust Holdings [2005] 4 All ER 52 …. [s 17.5] Champsey Bhara & Co v Jivraj Balloo Spinning and Weaving Co Ltd [1923] AC 480; [1923] All ER Rep 235; (1923) 39 TLR 253 …. [s 31.5] Channel Tunnel Group Ltd v Balfour Beattie Construction Ltd [1993] AC 334 …. [s 8.35] Chidiac v R (1991) 171 CLR 432 …. [s 34A.10] Christ Church Grammar School v Bosnich [2010] VSC 476 …. [s 28.45], [s 28.55] Civil Mining & Construction Pty Ltd v Queensland [2013] QSC 214; BC201312099 …. [s 34A.90] CMA CGM SA v Beteiligungs- Kommanditgesellschaft MS “Northern Pioneer” [2003] 3 All ER 330; [2003] 1 WLR 1015 …. [s 34A.45], [s 34A.70] Cockatoo Dockyard Pty Ltd v Commonwealth (No 3) (1994) 35 NSWLR 689 …. [s 35.20] Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; 41 ALR 367 …. [s 7.30], [s 34A.15] Cole v Gebauer Nominees Pty Ltd [2012] WASC 9 …. [s 34A.40] Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248 …. [s 33B.55], [s 33B.60] Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; 238 ALR 457 …. [s 2A.5], [s 7.10], [s 7.30], [s 8.5], [s 8.15], [s 8.20], [s 34.45], [s 34.63], [s 34.65] Commonwealth v Anti-Discrimination Tribunal (Tas) (2007) 169 FCR 85; 248 ALR 494 …. [s 8.15A] — v Cockatoo Dockyard Pty Ltd (1994) 35 NSWLR 704 …. [s 17.25] — v— (1995) 36 NSWLR 662 …. [s 27H.40], [s 27I.25] — v Gretton [2008] NSWCA 117 …. [s 33B.55] — v John Fairfax & Sons Ltd (1980) 147 CLR 39; 32 ALR 485 …. [s 27H.10]

Companie d’Armement Maritime SA v Companie Tunisienne de Navigation SA [1970] 3 All ER 71; [1970] 2 Lloyd’s Rep 99 …. [s 27I.30] Corvetina Technology Ltd v Clough Engineering Ltd (2004) 183 FLR 317 …. [s 36.5] CRW Joint Operation v PT Perusahaan Gas Negara (Persero) TBK [2011] 4 SLR 305 …. [s 34.15] Cullen v Trappell (1980) 146 CLR 1; 29 ALR 1 …. [s 33E.20] Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462 …. [s 31.30] D & M (Aust) Pty Ltd v Crouch Developments Pty Ltd [2010] WASC 130 …. [s 34.30] D & Z Constructions Pty Ltd v IHI Corp [2013] WASC 265; BC201303219 …. [s 34A.90] Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs, Government of Pakistan [2011] 1 AC 763; [2011] 1 All ER 485 …. [s 16.5], [s 34.30] Dampskibsselskabet Nordon A/S v Gladstone Civil Pty Ltd (2013) 216 FCR 1 469 …. [s 36.10] Davids Distribution (Vic) Pty Ltd v Dance (No 2) [1999] VSC 468 …. [s 33B.10], [s 33B.60] Demco Investments & Commercial SA v SE Banken Forsakring Holding Aktiebolag [2005] 2 Lloyd’s Rep 650 …. [s 34A.55] Department of Economic Policy and Development of the City of Moscow v Bankers Trust Co [2005] QB 207 …. [s 27I.30] Desputeaux v Editions Chouette (1987) Inc 2003 SCC 17; [2003] 1 SCR 178 …. [s 34.65] Deutsche Schachtbau-und Tiefbohr GmbH v Ras al Khaimah National Oil Co & Shell International Petroleum Co Ltd; sub nom Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v Ras Al Khaimah National Oil Co [1990] 1 AC 295 …. [s 34.60], [s 36.70] Director of Housing v Sudi (2011) 33 VR 559 …. [s 8.15A] Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd [2011] QSC 306; BC201108127 …. [s 9.5], [s 31.5] Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613 …. [s 27I.25] Dobbs v National Bank of Australiasia (1935) 53 CLR 643 …. [s 8.40]

Dolling-Baker v Merrett [1991] 2 All ER 890 …. [s 2.35] Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 …. [s 12.30] Edwards v Bairstow [1956] AC 14 …. [s 34A.55] Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469; BC201410567 …. [s 31.5] Emerald Grain Australia Pty Ltd v Agrocorp International Pte Ltd [2014] FCA 414; BC201403065 …. [s 34.15], [s 34.60], [s 34.70] Emmott v Michael Wilson & Partners Ltd [2008] 2 All ER (Comm) 193; [2008] 1 Lloyd’s Rep 616 …. [s 27H.20], [s 27I.30] England and Wales Cricket Board v Kaneria [2013] EWHC 1074 …. [s 1.5] Equitable Funds Management Ltd (in Liq) v Heinze Equitable Funds Management Ltd (in Liq) v Heinze [2003] QSC 362 …. [s 34.40] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; 128ALR 391 …. [s 27E.15], [s 27F.10], [s 27F.15], [s 27F.50], [s 27H.10], [s 27H.40], [s 27I.25], [s 27I.30], [s 27I.40] —v— (1995) 185 CLR 448 …. [s 2.10], [s 2.35] Evans v National Pool Equipment Pty Ltd (1972) 2 NSWLR 410 …. [s 34.45] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; 236 ALR 209 …. [s 1AC.25], [s 28.50] Fence Gate Ltd v NEL Construction Ltd [2001] 1 All ER (D) 214 …. [s 34A.55] Ferris v Plaister (1994) 34 NSWLR 474; 11 BCL 417 …. [s 7.25], [s 34.45] Fiona Trust & Holding Corp v Privalov [2007] 4 All ER 951; [2007] All ER (D) 233 (Oct); [2007] 2 All ER (Comm) 1053 …. [s 7.25], [s 7.30], [s 8.5], [s 34.35] Flakt Australia Ltd v Wilkens & Davies Construction Co Ltd [1979] 2 NSWLR 243; (1979) 25 ALR 605; 39 FLR 267 …. [s 8.5] Fletcher Constructions Australia Ltd v Newman (as Trustee for Littlejohn) [2002] WASC 162 …. [s 33B.45], [s 33B.70] Flint Ink NZ Ltd v Huhtamaki Australia Pty Ltd [2014] VSCA 166; BC201406644 …. [s 2.80], [s 8.23] Form 700 Holdings Pty Ltd, Re [2014] VSC 385; BC201406563 …. [s 8.23] Foster v Galea (No 2) [2008] VSC 331 …. [s 33B.55] Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 …. [s 33B.55], [s 33B.60] Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; 131 FLR 422; (1996) ATPR 41-489 …. [s 7.30], [s 8.5], [s

8.15], [s 8.20], [s 8.23], [s 16.25], [s 34.45], [s 34.65] Fulham Football Club (1987) Ltd v Richards [2012] 1All ER 414 …. [s 34.65] Gas & Fuel Corp of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors Ltd [1978] VR 385 …. [s 12.5], [s 34.30] Gebauer Nominees Pty Ltd v Cole [2012] WASC 10 …. [s 31.30] Gianfriddo v Garra Constructions Pty Ltd [1971] VR 289 …. [s 31.5] Giedo van der Garde BV v Sauber Motorsport AG (2015) 317 ALR 786 …. [s 34.70] — v— (2015) 317 ALR 792 …. [s 34.70] — v Sauber Motorsport AG (No 2) [2015] VSC 109; BC201501928 …. [s 34.70] Gilgandra Marketing Co-op Ltd v Australian Commodities & Marketing Pty Ltd [2010] NSWSC 1209 …. [s 8.10], [s 8.15] Global Partners Fund Ltd v Babcock & Brown Ltd (2010) 79 ACSR 383 …. [s 7.30], [s 8.15] Gold Coast City Council v Canterbury Pipe Lines (Aust) Pty Ltd (1968) 118 CLR 58; 16 LGRA 191; [1968] ALR 97 …. [s 31.5] Gordian Runoff Ltd v Westport Insurance Corp (2010) 267 ALR 74 …. [s 31.30], [s 34.65], [s 34A.10], [s 34A.55], [s 34A.65], [s 34A.85], [s 34A.90] Gough; R v [1993] AC 646 …. [s 12.25] Government Insurance Office (NSW) v Atkinson- Leighton Joint Venture (1981) 146 CLR 206; 31 ALR 193; 55 ALJR 212; 1 ANZ Ins Cas 60-425 …. [s 8.15], [s 8.20], [s 8.23], [s 33A.20], [s 34.65] Government of Ceylon v Chandris [1963] 2 QB 327 …. [s 33B.55] Gujerat NRE Coke Ltd v Coeclerici Asia (Pte) Ltd (2013) 304 ALR 468 …. [s 5.5] Gulf Canada Resources Ltd v Arochem International Ltd (1992) 66 BCLR (2d) 113; 43 CPR (3d) 390 …. [s 8.5] Hadley v Baxendale (1854) 156 ER 145 …. [s 33E.5] Hallen v Anggledal [1999] NSWSC 552 …. [s 36.75] Halligan v Curtin [2013] VSC 124 …. [s 29.25] Hancock v Rinehart (2013) 96 ACSR 76 …. [s 2A.5], [s 8.5] Harding v Bourke (2000) 48 NSWLR 589 …. [s 1AC.5] Harris v Property Direct (International) Pty Ltd [2014] VCC 132 …. [s 8.30] Hassneh Insurance Co Israel v Mew [1993] 2 Lloyd’s Rep 243 …. [s 27I.25] Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2)

(2005) 13 VR 435 …. [s 33B.55] Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646 …. [s 8.30], [s 8.35] Hebei Import & Export Corp v Polytek Engineering Co Ltd [1999] 2 HKC 205 …. [s 34.51] —v— [1999] HKCFA 16 …. [s 36.70] Hebei Jikai Industrial Group Co Ltd v Martin [2015] FCA 228; BC201501541 …. [s 34.40], [s 34.60] Heller Financial Services Ltd v Thiess Contractors Pty Ltd [2000] FCA 802; BC200003220 …. [s 2.80] Hewitt v Mckensey [2003] NSWSC 1186 …. [s 28.45], [s 31.30] Heyman v Darwins Ltd [1942] AC 356 …. [s 8.50] Hinch v A-G (Vic) (1987) 164 CLR 15; 74 ALR 353 …. [s 27B.55] Hodgkinson v Fernie [1857] EngR 940; (1857) 3 CBNS 189; 140 ER 712 …. [s 31.5] Home Office v Harman [1983] 1 AC 280 …. [s 27I.25] Hong Huat Development Co (Pte) Ltd v Hiap Hong & Co Pte Ltd [2000] 2 SLR 609 …. [s 34A.10] Huddart Parker Ltd v The Ship Mill Hill (1950) 81 CLR 502 …. [s 8.35] Iannella v French (1968) 119 CLR 84; [1968] ALR 385 …. [s 24B.30] IBM Australia Ltd v National Distribution Services Pty Ltd (1991) 22 NSWLR 466; 100 ALR 361; 20 IPR 95; (1991) ATPR 41-094 …. [s 7.30], [s 8.5], [s 8.20], [s 8.23], [s 16.25], [s 34.45] IBSSL v Minerals Trading Corp of India [1996] 1 All ER 1017 …. [s 36.15] IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (2011) 282 ALR 717; 253 FLR 9 …. [s 16.5], [s 36.10] Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496; 206 ALR 558 …. [s 8.5], [s 8.15] International Standard Electric Corp (ISEC) v Bridas Sociedad Anonima Petrolera, Industrial y Commercial (1990) 745 F Supp 172 (SDNY) …. [s 36.50] Ipswich Borough Council v Fisons Plc [1990] 1 Ch 709 …. [s 34A.40] Isaac; Ex parte Transport Workers Union of Australia; R v (1985) 159 CLR 323 …. [s 8.5] Italmare Shipping Co v Ocean Tanker Co Inc (The Rio Sun) [1981] 2 Lloyd’s Rep 489 …. [s 34A.10]

John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451; BC201502956 …. [s 7.30], [s 8.5], [s 8.15] John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; 172 ALR 625 …. [s 29.25] Jones v Bradley (No 2) [2003] NSWCA 258 …. [s 33B.55] JRL: Ex parte CJL, Re (1986) 161 CLR 342 …. [s 12.5] Kaverit Steel and Crane v Kone Corp (1992) 87 DLR (4th) 129 …. [s 7.10] Kennedy v Wallace (2004) 136 FCR 114 …. [s 27A.20] KNM Process Systems SDN BHD v Mission Newenergy Ltd formerly known as Mission Biofuels Ltd [2014] WASC 437; BC201411561 …. [s 2.80] Kuligowski v Metrobus (2004) 220 CLR 363 …. [s 8.20] Kyte-Powell v William Heinemann Ltd [1960] VR 425 …. [s 33.25] Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd (2011) 279 ALR 772 …. [s 16.25], [s 34.65] — v— [2011] NSWSC 1331 …. [s 36.30], [s 36.70] Larsen Oil and Gas Pte Ltd v Petropod Ltd [2011] 3 SLR 414 …. [s 8.5] Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 …. [s 8.40] Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd [1992] 2 VR 505 …. [s 33E.5] — v South Australian Superannuation Fund Investment Trust (1994) 63 SASR 444 …. [s 34A.65], [s 34A.90] Lesotho Highlands Development Authority v Impreglio SpA [2006] 1 AC 221 …. [s 27I.30] Leung v Hungry Jacks Pty Ltd [1999] VSC 477 …. [s 34A.65] Limin James Chen v Kevin McNamara & Son Pty Ltd [2013] VSC 539; BC201313670 …. [s 34.75], [s 34A.85], [s 34A.90] Lion-Dairy & Drinks Pty Ltd (Formerly National Foods Ltd) v Huhtamaki Australia Pty Ltd [2013] VSC 555; BC201314778 …. [s 2.80] Lipman Pty Ltd v Emergency Services Superannuation Board [2011] NSWCA 163; BC201104482 …. [s 7.30], [s 8.5] LKT Industrial Berhad (Malaysia) v Chun [2004] NSWSC 820 …. [s 34.40] Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451; [2000] 1 All ER 65 …. [s 12.25] Lollis v Loulatzis (No 3) [2008] VSC 231; BC200804935 …. [s 34.70] London and Clydeside Estates Ltd v Aberdeen District Council (1980) 1 WLR

182 …. [s 31.5] London Export Corporation Ltd v Jubilee Coffee Roasting Co Ltd [1958] 1 All ER 494; [1958] 1 WLR 271 …. [s 34.50] Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (No 3) [2013] VSC 435; BC201312029 …. [s 8.5], [s 8.15], [s 8.23] M & C Corp v Ewin Behr GmbH & Co (1996) 87 F 3d 844 (6th Cir) …. [s 36.50] McHutchinson vWestern Research and Development Ltd [2004] FCA 1234; BC200406153 …. [s 2.80] McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1; 104ALR 257 …. [s 29.25] Mackay Sugar Ltd v Sugar Australia Pty Ltd [2013] QSC 233; BC201312554 …. [s 34A.90] McLean v Burns Philp Trustee Co Ltd (1985) 2 NSWLR 623 …. [s 34.65] Manderson M & F Consulting v Incitec Pivot Ltd (No 3) [2011] VSC 441 …. [s 34A.25] Manly Council v Byrne (No 2) [2004] NSWCA 227 …. [s 33B.55] Masters v Cameron (1954) 91 CLR 353 …. [s 28.45], [s 28.80] Melbourne Harbour Trust Commissioners v Hancock (1927) 39 CLR 570; [1927] ALR 245 …. [s 31.30] Methanex Motunui Ltd v Spellman [2004] 3 NZLR 454 …. [s 34.10] Metrocall Inc v Electronic Tracking Systems Pty Ltd (2000) 52 NSWLR 1 …. [s 8.20], [s 34.65] MGM Productions Group Inc v Aeroflot Russian Airlines (2004) WL 234871 …. [s 36.70] Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 …. [s 27I.30] Minister for Home and Territories v Teesdale-Smith (1924) 35 CLR 120; 31 ALR 74 …. [s 33B.15], [s 33B.45] Mir Brothers Developments Pty Ltd v Atlantic Constructions Pty Ltd (1984) 1 BCL 80 …. [s 33A.20] Mitsubishi Motors Corp v Soler Chrysler-Plymouth Inc (1985) 473 US 614; 87 L Ed 2d 444; 105 S Ct 3346; 53 USLW 5069; [1985] USSC 203 …. [s 8.5], [s 36.70] Moller v Roy (1975) 132 CLR 622 …. [s 35.30] Moorabool Shire Council v JB Taitapannui [2002] VSC 418 …. [s 8.15A]

Moratti Pty Ltd v Lawrence James Gordon (2007) 13 BPR 24,713 …. [s 7.45] Moses H Cone Memorial Hospital v Mercury Construction Corporation (1983) 460 US 1 …. [s 8.5] Mowby Pty Ltd v Moose Property Service Pty Ltd (in liq) [2007] VSC 111 …. [s 34A.90] Mulgrave Central Mill v Hagglunds Drives [2002] 2 Qd R 514 …. [s 7.20] Multan Pty Ltd v Ippoliti [2006] WASC 130 …. [s 1AC.25] Murray & Roberts Australia Pty Ltd v GB Lifestyles Pty Ltd [2013] WASC 345; BC201303334 …. [s 31.5], [s 34A.90], [s 43.5] Nearmap Ltd v Spookfish Pty Ltd [2014] NSWSC 1790; BC201410719 …. [s 2.80], [s 7.25], [s 8.15], [s 8.5], [s 17.20] New South Wales v UXC Ltd [2011] NSWSC 530 …. [s 8.30], [s 8.40], [s 33B.55] New Zealand Employers Federation Inc v National Union of Public Employees [2002] 2 NZLR 54 …. [s 33.10] Noon v Bondi Beach Astra Retirement Village Pty Ltd [2010] NSWCA 202 …. [s 7.45] Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2010] QSC 94 …. [s 31.30] Northern Elevator Manufacturing Sdn Bhd v United Engineers (Singapore) Pte Ltd [2004] 2 SLR(R) 494 …. [s 34A.10] O’ Connor v LEAW Pty Ltd (formerly known as Mal-Corp Pty Ltd) (1997) 42 NSWLR 285 …. [s 7.10] Oil Basins Ltd v BHP Billiton Ltd (2007) 18 VR 139 …. [s 31.30], [s 34.30] Onex Corp v Ball Corp (1994) 12 BLR (2d) 151 …. [s 8.5] Owners - Strata Plan No 61288 v Brookfield Australia Investments Ltd (2013) 85 NSWLR 479 …. [s 34.40] Pacific China Holdings Ltd (in liq) v Grand Pacific Holdings Ltd [2012] 4 HKLRD 1 …. [s 34.55], [s 34.57] Paharpur Cooling Towers Ltd v Paramount (WA) Ltd [2007] WASC 234 …. [s 7.30] — v— [2008] WASCA 110; BC200803347 …. [s 8.5] Panchaud Freres SA v R Pagnan & Fratelli [1974] 1 Lloyd’s Rep 394 …. [s 33E.20] Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1993) 43 FCR 439; 116 ALR 163 …. [s 7.10], [s 7.30], [s 33A.20]

Parry Jones v Law Society [1969] 1 Ch 1 …. [s 27F.50], [s 27I.25] Parsons & Whittemore Overseas Co, Inc v Société Générale De L’Industrie Du Papier (RAKTA) [1974] USCA2 836; (1974) 508 F 2D 969 (2D Cir) …. [s 36.70] Parsons Brinckerhoff Australia Pty Ltd v Thiess Pty Ltd [2013] QSC 75; BC201309232 …. [s 8.15] Passlow v Butmac Pty Ltd [2012] NSWSC 225 …. [s 8.15], [s 35.25] Pathak v Tourism Transport Ltd [2002] 3 NZLR 681 …. [s 8.10] Pavey Matthews Pty Ltd v Paul (1987) 162 CLR 221; 69ALR 577 …. [s 7.10] Permanent Trustee Co (Canberra) Ltd (Executor estate of Andrews) v Socks & Holdings (Canberra) Pty Ltd (1976) 15 ATSR 45 …. [s 34.70] Permasteelisa Pacific Holdings Ltd v Hyundai Engineering & Construction Co Ltd [2005] 2 SLR(R) 270 …. [s 34A.10] Peter Schwarz (Overseas) Pty Ltd v Morton (2004) 20 BCL 133 …. [s 31.30], [s 34.75] Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724 …. [s 34A.5], [s 34A.10], [s 34A.50] Pipeline Services WA Pty Ltd v ATCO Gas Australia Pty Ltd [2014] WASC 10; BC201400070 …. [s 8.50] — v— [2014] WASC 10 (S); BC201410690 …. [s 7.25] Pitcher Products Pty Ltd v Country Roads Board [1964] VR 661 …. [s 33D.10] PMT Partners Pty Ltd v Australian National Parks and Wildlife Service (1995) 184 CLR 301; 131 ALR 377 …. [s 7.15] Preston v Preston (1981) 3 WLR 619 …. [s 33B.60] Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203 …. [s 34A.65], [s 34A.70], [s 34A.90], [s 34A.95] PT Pukuafu Indah v Newmont Indonesia Ltd [2012] SGHC 187 …. [s 34.75] Pyramid Building Society v Farrow Finance Corporation [1995] 1 VR 464 …. [s 27A.20] Qantas Airways Ltd v Joseland & Gilling (1986) 6 NSWLR 327 …. [s 34A.65], [s 34A.70], [s 34A.90] Quintette Coal Ltd v Nippon Steel Corporation (1990) Carswell BC 232; 50 BCLR (2d) 207; [1991] 1WWR 219 …. [s 34.51] R v Gough [1993] AC 646 …. [s 12.25] — v Isaac; Ex parte Transport Workers Union of Australia (1985) 159 CLR 323 …. [s 8.5]

Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420; 175 ALR 725 …. [s 8.5], [s 8.23] Resort Condominiums International Inc v Bolwell [1995] 1 Qd R 406; (1993) 118 ALR 655 …. [s 36.35], [s 36.70] Riddick v Thames Board Mills Ltd [1977] QB 881 …. [s 27I.25] Ridler v Walter [2001] TASSC 98 …. [s 34A.55] Rinehart v Rinehart (No 2) [2015] FCA 339; BC201502493 …. [s 8.55] — v Welker [2012] NSWCA 95; BC201202509 …. [s 7.30], [s 8.5], [s 34.65] Ringwood Agricultural Co Pty Ltd v Grain Link (NSW) Pty Ltd [2013] NSWSC 191; BC201301130 …. [s 34.57] Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 43 WAR 91; 287 ALR 315 …. [s 7.25], [s 34A.10], [s 35.10], [s 35.15] Roberts v Roberts [1994] 12 WAR 505 …. [s 27J.25] Rosniak v Government Insurance Office of NSW (1997) 41 NSWLR 609; 26 MVR 204 …. [s 33B.55], [s 33B.60] Rotheray (E) & Sons Ltd v Carlo Bedarida & Co [1961] 1 Lloyds Rep 220 …. [s 34.30] RP Robson Constructions v D & M Williams (1989) 6 BCL 219 …. [s 31.5] S v Crimes Compensation Tribunal [1998] 1 VR 83 …. [s 34A.10] Samick Lines Co Ltd v Owners of the Antonis P Lemos [1985] AC 711 …. [s 7.30] Sarandis (Vic) Pty Ltd v Mulberry’s Australia Pty Ltd [2002] VCAT 390 …. [s 8.15A] Saraya v Commissioner of Business Franchises BC9700371 …. [s 31.5] Scherk v Alberto-Culver Co (1974) 417 US 506; [1974] USSC 173 …. [s 36.70] Schick v Mijoc (1993) 115 FLR 43 …. [s 33B.15] Scibilia and Lejo Holdings Pty Ltd, Re [1985] 1 Qd R 94 …. [s 34A.110] Scott v Avery [1856] EngR 810; (1856) 5 HLC 811; 10 ER 1121 …. [s 8.40] Shakur v Aintree Holdings Pty Ltd (t/as Beaumonde Homes) [2015] WASAT 12; BC201500680 …. [s 1.15], [s 8.15B] Shell Oil Co of Australia Ltd v FCT (1930) 44 CLR 530; [1931] AC 275; [1931] ALR 1; (1930) 4 ALJR 341 …. [s 8.15B] Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd (2011) 80 NSWLR 398; 279 ALR 759 …. [s 8.20], [s 8.25], [s 34.65] Stipanov v Mier [2006] VSC 424 …. [s 33B.55] Strategic Publishing Group Pty Ltd v John Fairfax Publications Pty Ltd [2003]

NSWSC 1134 …. [s 8.35] Subway Systems Australia Pty Ltd v Ireland [2013] VSC 550; BC201313787 …. [s 2.85], [s 6.5], [s 8.15A] — v— [2014] VSCA 142 …. [s 2.85], [s 6.5], [s 8.15B], [s 35.25] Sugar Australia Pty Ltd v Mackay Sugar Ltd [2012] QSC 38 …. [s 34.40], [s 34A.110] Sui Southern Gas Co Ltd v Habibullah Coastal Power Co (Pte) Ltd [2010] 3 SLR 1 …. [s 34.10] Suisse Atlantique Societe d’ Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1966] 2 All ER 61; [1966] 1 Lloyd’s Rep 529 …. [s 27I.30] Surefire Systems Ltd v Guardian ECL Ltd [2005] BLLR 534 …. [s 34A.55] Swift v South Melbourne Permanent Society and Deposit Institute (1896) 2 ALR 156 …. [s 33B.15] Tanning Research Laboratories Inc v O’Brien (the League) (1990) 169 CLR 332; 91 ALR 180 …. [s 2.80], [s 8.5] TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2009] VSC 553 …. [s 7.30] — v— (2014) 144 ALD 471; 311 ALR 387 …. [s 34.63], [s 34.70], [s 35.10] —v Judges of the Federal Court of Australia (2013) 295ALR 596 …. [s 8.15A], [s 34.63] Thoroughvision Pty Ltd v Sky Channel Pty Ltd [2010] VSC 139; BC201002353 …. [s 5.5], [s 31.30], [s 34A.90] Tjong Very Sumito v Antig Investments Pte Lte [2009] 4 SLR(R) 732 …. [s 8.5], [s 34.65] Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd (2004) 219 CLR 165; 211 ALR 342 …. [s 7.30] Tomlie Nominees Pty Ltd v Dextrone Pty Ltd BC9300749 …. [s 34.70] Toyo Engineering Corp v John Holland Pty Ltd [2000] VSC 553 …. [s 36.75] Transfield Philippines Inc v Luzon Hydro Corp [2002] VSC 215 …. [s 27A.5] Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) (2012) 201 FCR 535; 291 ALR 99 …. [s 34.70], [s 35.30], [s 35.35], [s 36.5], [s 36.10], [s 36.55], [s 36.60], [s 36.70] Trustees of Rotoaira Forest Trust v A-G [1999] 2 NZLR 452 …. [s 34.70] Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd (2011) 277 ALR 415 …. [s 3.5], [s 34.70], [s 36.5] Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 …. [s 34A.25]

Ukrainian Association of Western Australia in Perth (Inc) v Squire Constructions Pty Ltd [2004] WASC 4; BC200400093 …. [s 31.5] United Group Rail Services Ltd v Rail Corp (NSW) (2009) 74 NSWLR 618 …. [s 8.5], [s 8.15] Van Dongen v Cooper [1967] WAR 143 …. [s 34.30] Victoria v Grawin Pty Ltd [2012] VSC 157 …. [s 34A.25], [s 40.15] —v Seal Rocks Victoria (Aust) Pty Ltd (2001) 3 VR 1; (2002) 18 BCL 148 …. [s 5.5] Villani v Delstrat Pty Ltd [2001] WASC 112 …. [s 31.30] Vodafone Pty Ltd v Supercall Pty Ltd [2003] NSWSC 302 …. [s 34A.40], [s 34A.90] Walkinshaw v Diniz [2000] 2 All ER (Comm) 237 …. [s 1.5] Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005] FCA 1102; BC200505922 …. [s 7.30], [s 8.5], [s 34.45] Welker v Rinehart (No 2) [2011] NSWSC 1238 …. [s 7.30] West Tankers Inc v RAS Riunione Adriatica di Sicurta SpA [2001] 1 All ER (Comm) 794; [2007] 1 Lloyd’s Rep 391 …. [s 27I.30] Westacre Investments Inc v Jugoimport-SPDR Holding Co Ltd [2000] QB 288; [1999] 2 Lloyd’s Rep 65 …. [s 27I.30] Western Export Services Inc v Jireh International Pty Ltd (2011) 282 ALR 604 …. [s 7.30] Westport Insurance Corp v Gordian Runoff Ltd (2011) 244 CLR 239; 281 ALR 593 …. [s 28.45], [s 28.55], [s 31.30], [s 34.70], [s 34A.55], [s 34A.65], [s 34A.70], [s 34A.90], [s 34A.95], [s 34A.110], [s 34A.130] Wilkinson v Osborne (1915) 21 CLR 89; 22 ALR 57 …. [s 34.60] Wilson v Glover [1969] NZLR 365 …. [s 34.30] Windsor v National Mutual life Association of Australia Ltd (1992) 34 FCR 580; 106 ALR 282 …. [s 1AC.25] Winter v Equuscorp Pty Ltd [2010] VSC 419 …. [s 34A.90] WJ Alan & Co Ltd v El Nasr Export & Import Co [1971] 1 Lloyd’s Rep 401 …. [s 31.5] WMC Resources Ltd v Leighton Contractors Pty Ltd (1999) 15 BCL 49 …. [s 27J.20] Woodbud Pty Ltd v Warea Pty Ltd (1995) 125 FLR 346 …. [s 28.45], [s 28.55], [s 28.75], [s 33.10] Wyong Shire Council v Jenbuild Pty Ltd [2012] NSWSC 720 …. [s 7.40], [s

7.45] Yesodei Hatorah College Inc v Trustees of the Elwood Talmud Torah Congregation [2011] VSC 622; BC201109954 …. [s 28.40], [s 28.45], [s 28.50], [s 28.55], [s 28.60], [s 28.65], [s 28.70], [s 28.75], [s 28.80], [s 34A.85] Yukos Capital SARL v OJSC Rosneft Oil Company [2012] EWCACiv 855 …. [s 36.35] Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] 2 Qd R 563 …. [s 8.35] Zurich Bay Holdings Pty Ltd v Iluka Midwest Ltd [2009] WASC 237; BC200908104 …. [s 31.5]

Table of Statutes References are to paragraph numbers

COMMONWEALTH Arbitration (Foreign Awards and Agreements) Act 1974 s 7 …. [s 8.5] Competition and Consumer Act 2010 …. [s 33A.20] Pt 4 …. [s 7.10] Sch 2 …. [s 7.10] Constitution of the Commonwealth of Australia 1901 s 38 …. [s 34A.10] s 109 …. [s 34A.10] International Arbitration Act 1974 …. [s 1AC.5], [s 2A.5], [s 2A.10], [s 7.5], [s 8.5], [s 35.30] s 7(2) …. [s 8.5] s 8 …. [s 35.5] s 8(5) …. [s 35.30] s 8(7) …. [s 35.30] s 8(7A) …. [s 36.70] s 9 …. [s 35.30] s 16(1) …. [s 2A.5], [s 8.15] s 17 …. [s 2A.5], [s 2A.10] s 21 …. [s 34A.10] s 25 …. [s 33E.15] s 27(3) …. [s 33B.65] s 38(5)(b)(i) …. [s 34A.55]

NEW SOUTH WALES Commercial Arbitration Act 1984 …. [s 34A.15] s 14 …. [s 28.55]

s 19 …. [s 28.55] s 22 …. [s 28.55] s 22(1) …. [s 28.55] s 22(2) …. [s 28.55], [s 28.70], [s 28.80] Commercial Arbitration Act 2010 …. [s 1A.15], [s 28.50] Companies (Administration) Act 1982 s 3(1) …. [8001] s 10(1) …. [8001] s 11(2) …. [8001] s 11(3) …. [8001] s 11(3)(a) …. [8001] s 11(3)(c) …. [8001] s 11(4) …. [8001] s 11(5) …. [8001] s 11(6) …. [8001] s 13(1) …. [8001] s 13(1)(4) …. [8001] s 17(1) …. [8001] s 20(1) …. [8001] s 20(3) …. [8001] s 21 …. [8001] s 22(1) …. [8001] s 23(1) …. [8001] s 23(3) …. [8001] s 24(1) …. [8001] s 24(2) …. [8001] s 25(1) …. [8001] s 25(1)(a) …. [8001] s 25(1)(b) …. [8001] s 25(1)(c) …. [8001] s 25(2) …. [8001] s 25(2)(a) …. [8001] s 25(2)(b) …. [8001] s 26 …. [8001]

s 27B(2) …. [8001] s 27C(1) …. [8001] s 27D(1) …. [8001] s 27D(4) …. [8001] s 27E …. [8001] s 27E(1) …. [8001] s 27J(1) …. [8001] s 28(1) …. [8001] s 33(5) …. [8001] s 33A …. [8001] s 33B …. [8001] s 33D …. [8001] s 33E …. [8001] s 33F …. [8001] s 37 …. [8001] Limitation Act 1969 s 20 …. [s 35.45]

VICTORIA Civil Procedure Act 2010 …. [s 34.75] Commercial Arbitration Act 1984 …. [s 8.15], [s 19.55], [s 31.10], [s 33A.5], [s 33B.15], [s 43.10] s 22(2) …. [s 28.40] s 38(5) …. [s 34A.90] Commercial Arbitration Act 2011 Pt 4A …. [s 9.5] s 1 …. [s 2.55], [s 35.5] s 1(2) …. [s 20.15] s 1(3) …. [s 1.20] s 1(5) …. [s 1.20] s 1(6) …. [s 1.20] s 1AC …. [s 14.10], [s 19.50], [s 24.25], [s 24A.15], [s 27.25], [s 27J.15], [s 30.15] s 1AC(2) …. [s 1AC.20]

s 1AC(2)(a) …. [s 24.25], [s 24B.25] s 1AC(2)(b) …. [s 24.25], [s 24B.25] s 1AC(3) …. [s 1AC.20] s 1AC(4) …. [s 2A.5] s 1C …. [s 24.25] s 2 …. [s 27.10], [s 27A.5], [s 27E.40], [s 27F.45] s 2(2) …. [s 2.90], [s 3.10], [s 28.30] s 2(5) …. [s 2.95] s 2(6) …. [s 2.100] s 2A …. [s 31.35] s 2A(1) …. [s 2A.5], [s 31.35] s 2A(3) …. [s 2A.5], [s 2A.10], [s 31.35] s 2A(4) …. [s 2A.5] s 3 …. [s 1.10], [s 2.90] s 3(2) …. [s 3.20] s 4 …. [s 7.15], [s 7.25], [s 34.25] s 5 …. [s 27I.50], [s 40.5], [s 40.15] s 6 …. [s 5.10], [s 24B.15] s 6(1) …. [s 6.10] s 6(2) …. [s 2.85], [s 27.10] s 7 …. [s 1.20], [s 2.20], [s 8.5], [s 34A.25] s 7(2) …. [s 8.15] s 7(5) …. [s 7.50] s 8 …. [s 8.5], [s 8.10], [s 20.15] s 8(1) …. [s 8.15], [s 10.5] s 8(2) …. [s 8.55] s 8(3) …. [s 35.30] s 8(7)(b) …. [s 36.5] s 8(7A) …. [s 34.70] s 9 …. [s 20.15] s 10 …. [s 29.10], [s 29.15], [s 43.10] s 10(2) …. [s 10.10] s 11 …. [s 15.5] s 11(3)(a) …. [s 11.15]

s 11(3)(c) …. [s 11.25] s 11(4) …. [s 11.10] s 11(5) …. [s 11.10], [s 11.35], [s 40.5] s 12(3) …. [s 12.15], [s 12.30], [s 13.10], [s 14.25] s 12(5) …. [s 12.25] s 12(6) …. [s 12.15], [s 12.25] s 13 …. [s 16.30] s 13(2) …. [s 13.20] s 13(3) …. [s 12.10], [s 13.20] s 13(4) …. [s 13.5], [s 13.30], [s 13.35] s 14 …. [s 14.25], [s 16.30], [s 27D.35] s 15 …. [s 27D.35] s 16 …. [s 16.30] s 16(1) …. [s 16.5], [s 34.35] s 16(2) …. [s 16.10] s 16(9) …. [s 16.25], [s 33D.5] s 16(10) …. [s 16.30] s 17 …. [s 2.70], [s 9.5], [s 17.10] s 17(1) …. [s 17.10] s 17(2) …. [s 17.15], [s 33B.15] s 17(3) …. [s 17.15] s 17A…. [s 9.5] s 17H …. [s 17.15], [s 20.15] s 17I …. [s 17.15], [s 20.15], [s 36.30] s 17J …. [s 9.5], [s 20.15], [s 33B.15] s 18 …. [s 19.50], [s 22.25], [s 23.20], [s 24.20], [s 34.40] s 18(17) …. [s 18.20] s 19(1) …. [s 1AC.20], [s 19.10], [s 19.15] s 19(2) …. [s 19.10], [s 19.45], [s 23.15], [s 24.30] s 19(3) …. [s 19.20] s 19(4) …. [s 19.25], [s 19.40] s 19(5) …. [s 19.30] s 19(6) …. [s 19.35], [s 19.40], [s 24B.35] s 20 …. [s 31.45]

s 20(1) …. [s 20.5], [s 20.35] s 20(2) …. [s 20.30] s 20(3) …. [s 20.35] s 21 …. [s 21.25] s 22 …. [s 28.45] s 22(2) …. [s 28.40], [s 28.45], [s 28.55], [s 28.65], [s 28.70], [s 28.75], [s 28.80], [s 31.30] s 22(3)(a) …. [s 27E.10] s 22(4) …. [s 22.20] s 23(1) …. [s 23.5], [s 23.25] s 23(1)(a) …. [s 25.15] s 23(1)(b) …. [s 25.15] s 23(3) …. [s 23.20] s 23C …. [s 27E.10] s 24 …. [s 24.30], [s 24A.5] s 24(1) …. [s 24.5], [s 24A.5] s 24(2) …. [s 24A.10] s 24A …. [s 1AC.5] s 24B …. [s 25.10] s 24B(1) …. [s 24B.20], [s 24B.25] s 24B(2) …. [s 24B.20] s 24B(2)(a) …. [s 24B.15], [s 24B.25] s 24B(2)(b) …. [s 24B.15] s 25 …. [s 19.35], [s 24B.35] s 25(1) …. [s 25.5] s 25(1)(a) …. [s 25.25] s 25(1)(b) …. [s 25.25] s 25(1)(c) …. [s 25.15] s 25(2) …. [s 24B.35], [s 25.5], [s 25.20], [s 25.70] s 25(2)(a) …. [s 25.30], [s 25.35], [s 32.25] s 25(2)(b) …. [s 25.30], [s 25.40] s 25(3) …. [s 25.20], [s 25.40], [s 25.70] s 25(3)(a) …. [s 25.45] s 26(1)(b) …. [s 26.15]

s 27 …. [s 27.20], [s 27.30], [s 27C.5], [s 27D.5] s 27A …. [s 27.30] s 27A(1) …. [s 27A.5] s 27A(2) …. [s 27A.10] s 27A(3) …. [s 27A.20] s 27B …. [s 27B.20], [s 27B.55] s 27B(1)(a) …. [s 27B.5] s 27B(2) …. [s 27B.20], [s 27B.25], [s 27B.40] s 27B(2)(a) …. [s 27B.20] s 27B(3) …. [s 27B.25], [s 27B.30] s 27B(3)(a) …. [s 27B.30] s 27B(4) …. [s 27B.35] s 27B(4)(a) …. [s 27B.35] s 27B(4)(b) …. [s 27B.35] s 27B(5) …. [s 27B.20], [s 27B.40] s 27B(6) …. [s 27B.45], [s 27B.50] s 27B(6)(a) …. [s 27B.45] s 27B(7) …. [s 27B.50] s 27B(A) …. [s 27B.10] s 27C …. [s 27C.10], [s 33D.20] s 27C(1) …. [s 27C.10], [s 27C.15] s 27C(1)(a) …. [s 27C.15] s 27C(2) …. [s 27C.20] s 27C(6)(c) …. [s 27C.25] s 27C(8) …. [s 27C.30] s 27D …. [s 1A.15], [s 27D.5], [s 39.15] s 27D(2) …. [s 27D.15] s 27D(2)(b) …. [s 27D.40] s 27D(4) …. [s 27D.25], [s 27D.30], [s 27D.35] s 27D(5) …. [s 27D.30] s 27D(6) …. [s 27D.35] s 27D(7) …. [s 27D.40] s 27D(8) …. [s 27D.50] s 27E …. [s 2.35], [s 27E.5], [s 27E.10]

s 27E(1) …. [s 27E.10] s 27E(2) …. [s 27E.20], [s 27E.25], [s 27F.15] s 27E(2)(a) …. [s 27E.20] s 27E(3) …. [s 27E.25] s 27E(9)(b) …. [s 27F.50] s 27F …. [s 27E.5], [s 27G.5], [s 27I.5] s 27F(4) …. [s 27F.20] s 27F(5) …. [s 27F.25] s 27F(6) …. [s 27F.30] s 27F(7) …. [s 27F.35] s 27F(8) …. [s 27F.40] s 27F(9) …. [s 27F.50] s 27F(9)(a) …. [s 27F.50] s 27F(10) …. [s 27F.50], [s 27F.55] s 27G …. [s 27F.10], [s 27I.20] s 27G(1) …. [s 27H.20] s 27G(2) …. [s 27H.15], [s 27I.10] s 27H …. [s 27F.10], [s 27H.30], [s 27H.35], [s 27I.15] s 27H(1) …. [s 27H.5], [s 27H.15], [s 27H.20], [s 27I.5] s 27H(2) …. [s 27H.15], [s 27H.25], [s 27I.10] s 27H(3) …. [s 27H.20] s 27H(4) …. [s 27H.25] s 27H(5) …. [s 27H.30] s 27I …. [s 27F.10], [s 27H.35], [s 27I.45] s 27I(1) …. [s 27I.5] s 27I(2) …. [s 27H.15], [s 27I.10] s 27I(3) …. [s 27I.20] s 27I(4) …. [s 27I.45] s 27J …. [s 27J.20] s 27J(1) …. [s 27J.10] s 28 …. [s 28.30] s 28(1) …. [s 28.10], [s 28.35] s 28(2) …. [s 28.15], [s 28.25], [s 28.55] s 28(3) …. [s 28.20], [s 28.25], [s 28.30]

s 28(4) …. [s 28.35], [s 28.40] s 28(5) …. [s 28.85], [s 28.90] s 28.45 …. [s 28.60] s 29 …. [s 29.5], [s 29.15] s 29(1) …. [s 29.20] s 29(1)(c) …. [s 31.30], [s 34A.55] s 29(2) …. [s 29.25] s 30 …. [s 30.25], [s 31.25], [s 32.15], [s 33.10] s 30(1) …. [s 30.5] s 30(2) …. [s 30.25], [s 30.30] s 30(3) …. [s 30.35] s 31 …. [s 30.25], [s 31.5] s 31(1) …. [s 31.55] s 31(2) …. [s 31.15], [s 32.5] s 31(3) …. [s 30.25], [s 31.5], [s 31.20], [s 31.30] s 31(4) …. [s 20.40], [s 31.45], [s 31.50] s 31(5) …. [s 20.40], [s 31.50] s 31(6) …. [s 31.55] s 32 …. [s 27I.20], [s 31.5], [s 32.5], [s 32.30] s 32(1) …. [s 32.5], [s 32.35] s 32(2)(a) …. [s 32.5], [s 32.10] s 32(2)(b) …. [s 32.15] s 32(2)(c) …. [s 32.20] s 32(2)(d) …. [s 32.5], [s 32.25], [s 32.35] s 32(3) …. [s 32.30] s 33 …. [s 32.5], [s 32.30], [s 33.5], [s 33.10], [s 34.10], [s 34.75], [s 34A.105] s 33(1)(a) …. [s 33.5] s 33(1)(b) …. [s 33.5], [s 33.15] s 33(2)(a) …. [s 33F.10] s 33(3) …. [s 33.5], [s 33.15] s 33(4) …. [s 33.5] s 33(4)(a) …. [s 33F.10] s 33(4)(b) …. [s 33F.10]

s 33A …. [s 33A.5] s 33B …. [s 24B.35], [s 33A.15], [s 33B.5] s 33B(1) …. [s 33B.10] s 33B(2) …. [s 33B.10], [s 33B.20] s 33B(3) …. [s 33B.20], [s 33B.25] s 33B(4) …. [s 25.65], [s 33B.30], [s 33B.50] s 33B(4)(a) …. [s 33B.35], [s 33B.40] s 33B(4)(c) …. [s 33B.60] s 33B(5) …. [s 33B.55], [s 33B.65], [s 33C.10] s 33B(6) …. [s 33B.70] s 33B(7) …. [s 33B.75] s 33C …. [s 33B.55], [s 33C.10] s 33D(1) …. [s 33D.10], [s 33D.20] s 33D(2) …. [s 33D.5], [s 33D.15] s 33D(3) …. [s 33D.20] s 33E(1) …. [s 33E.10], [s 33F.15] s 33E(1)(a) …. [s 33E.25] s 33E(1)(b) …. [s 33E.30] s 33E(2) …. [s 33E.35] s 33E(2)(a) …. [s 33E.40] s 33E(2)(b) …. [s 33E.45] s 33E(2)(c) …. [s 33E.50] s 33F …. [s 33E.40] s 33F(1)(b) …. [s 33F.10] s 33F(2) …. [s 33F.10] s 33F(3) …. [s 33F.15] s 33F(4) …. [s 33F.20] s 33F(5) …. [s 33F.25] s 34 …. [s 31.30], [s 33B.5], [s 33B.65], [s 34.5], [s 34.10], [s 34.25], [s 34A.5], [s 34A.105], [s 35.10], [s 36.80] s 34(1)(a) …. [s 34A.15] s 34(2) …. [s 34.10], [s 34.15] s 34(2)(a) …. [s 34.20], [s 36.30] s 34(2)(a)(i) …. [s 34.20], [s 36.30]

s 34(2)(a)(ii) …. [s 33D.5], [s 34.40] s 34(2)(a)(iii) …. [s 34A.115] s 34(2)(a)(iv) …. [s 33D.5], [s 34.55], [s 36.30] s 34(2)(b) …. [s 34.20] s 34(3) …. [s 34.75] s 34(3)(c)(i) …. [s 34A.60] s 34(3)(c)(ii) …. [s 34A.60] s 34(4) …. [s 32.5], [s 32.30] s 34A …. [s 28.35], [s 31.30], [s 34A.5], [s 34A.20], [s 34A.60], [s 34A.85], [s 34A.95], [s 34A.130], [s 35.10] s 34A(1) …. [s 34A.15] s 34A(1)(a) …. [s 34A.20] s 34A(1)(b) …. [s 34A.10], [s 34A.20] s 34A(2) …. [s 34A.25] s 34A(3) …. [s 34A.30], [s 34A.35], [s 34A.75] s 34A(3)(a) …. [s 34A.35], [s 34A.40] s 34A(3)(c) …. [s 34A.50], [s 34A.60] s 34A(3)(c)(i) …. [s 34A.55], [s 34A.65], [s 34A.85] s 34A(3)(c)(ii) …. [s 34A.85], [s 34A.100] s 34A(3)(d) …. [s 34A.75] s 34A(5) …. [s 34A.65], [s 34A.85] s 34A(6) …. [s 34A.105], [s 34A.120] s 34A(7) …. [s 34A.110] s 34A(7)(a) …. [s 34A.110] s 34A(7)(b) …. [s 34A.110] s 34A(7)(c) …. [s 34A.20], [s 34A.110] s 34A(7)(d) …. [s 34A.110] s 34A(8) …. [s 34A.110], [s 34A.115] s 34A(9) …. [s 34A.120] s 34A(10) …. [s 34A.125] s 35 …. [s 20.15], [s 35.20] s 35(1) …. [s 35.5], [s 35.20] s 36 …. [s 20.15], [s 34.5], [s 35.5], [s 35.20], [s 36.30], [s 36.80] s 36(1) …. [s 35.30], [s 36.5]

s 36(1)(a) …. [s 36.10] s 36(1)(a)(i) …. [s 36.25] s 36(1)(a)(ii) …. [s 36.25] s 36(1)(a)(iii) …. [s 36.25], [s 36.30] s 36(1)(a)(iv) …. [s 36.25] s 36(1)(a)(v) …. [s 36.25], [s 36.30], [s 36.35], [s 36.75] s 36(1)(b) …. [s 36.60] s 36(1)(b)(i) …. [s 36.25], [s 36.60] s 36(1)(b)(ii) …. [s 36.25], [s 36.30] s 36(2) …. [s 35.30], [s 36.35], [s 36.75] s 37 …. [s 37.10] s 37(1) …. [s 37.20] s 38 …. [s 31.30] s 38(2) …. [s 34A.90] s 38(4) …. [s 34A.25] s 38(4)(b) …. [s 34A.90] s 38(5) …. [s 34A.70], [s 34A.90] s 38(5)(a) …. [s 34A.35], [s 34A.40], [s 34A.90] s 38(5)(b) …. [s 34A.90] s 38(5)(b)(i) …. [s 34A.65], [s 34A.90], [s 34A.95] s 38(5)(b)(ii) …. [s 34A.70], [s 34A.90], [s 34A.100] s 39 …. [s 39.5] s 40 …. [s 40.5] s 42 …. [s 31.30] s 43 …. [s 43.5] s 43(1) …. [s 1.25] s 43(1)(a) …. [s 1.25] s 43(1)(b) …. [s 1.25] s 43(3) …. [s 43.10] s 43(3)(a) …. [s 1.25] s 43(3)(b) …. [s 1.25] s 44 …. [s 19.55] s 53 …. [s 35.30] s 69(5) …. [s 34A.85]

Constitution Act 1985 s 18(2A) …. [s 34A.25] s 73 …. [s 35.30] s 85 …. [s 34A.25] s 85(1) …. [s 40.15] s 85(5) …. [s 40.10] Legal Profession Act 2004 …. [s 33C.10] Limitation of Actions Act 1958 …. [s 33D.10] s 5(1)(c) …. [s 35.45] s 35(A) …. [s 35.45] Penalty Interest Rates Act 1983 s 2 …. [s 33E.15] Retail Leases Act 2003 …. [s 36.65] Supreme Court (General Civil Procedure) Rules 2005 Pt 3 …. [s 33B.60] Supreme Court Act 1986 …. [s 40.15]

QUEENSLAND Acts Interpretation Act 1954 s 14(7) …. [s 2.95] Commercial Arbitration Act 1990 s 38 …. [s 34A.90] s 38(4)(b) …. [s 34A.90] s 42 …. [s 34.40], [s 34A.110]

WESTERN AUSTRALIA Commercial Arbitration Act 1985 …. [s 28.60] s 4 …. [s 2.80], [s 7.5] s 7(1) …. [s 8.30] s 8(1) …. [s 8.30] s 17(1) …. [s 27A.5] s 33 …. [s 34A.10] s 34(2)(a)(ii) …. [s 34.57]

s 34(2)(a)(iv) …. [s 34.57] s 38 …. [s 34A.90] s 46 …. [s 25.35] s 53 …. [s 8.15] Legal Profession Act 2008 …. [s 33C.10] Limitation Act 1935 s 38(1)(c)(i) …. [s 36.15]

TASMANIA Limitation Act 1974 s 4(1) …. [s 35.45]

NORTHERN TERRITORY Limitation Act 1981 s 18(2) …. [s 35.45]

Australian Commercial Arbitration

Contents Foreword Publisher’s Note Table of Cases Table of Statutes Introduction Comparative Table Commencement Information Opt-out Provisions Commercial Arbitration Act 2011 (Vic) Table of Provisions Table of Amendments Part 1A — Preliminary Part 1 — General Provisions Part 2 — Arbitration Agreement Part 3 — Composition of Arbitral Tribunal Part 4 — Jurisdiction of Arbitral Tribunal Part 4A — Interim Measures Part 5 — Conduct of Arbitral Proceedings Part 6 — Making of Award and Termination of Proceedings Part 7 — Recourse Against Award Part 8 — Recognition and Enforcement of Awards Part 9 — Miscellaneous Part 10 — Savings and Transitional Provisions

Arbitration Rules New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) ACICA and IAMA Arbitration Rules International Arbitration Rules Australian Court Procedure Civil Procedure Act 2010 (Vic) (Extracts) Table of Provisions Table of Amendments Chapter 5 — Appropriate Dispute Resolution Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) (Extracts) Table of Provisions Table of Amendments Order 9 — Arbitration Rules Part 1 — General Part 2 — International Commercial Arbitration Part 3 — Domestic Commercial Arbitration Forms Supreme Court Practice Notes Supreme Court Rules 2000 (Tas) (Extracts) Table of Provisions Table of Amendments Part 32 — Proceedings Under Particular Statutes Supreme Court Civil Rules 2006 (SA) (Extracts) Table of Provisions Table of Amendments Chapter 10 — Alternative Dispute Resolution Part 2 — Arbitration Chapter 15 — Statutory Proceedings Part 2 — Proceedings Under Particular Acts Part 4 — Arbitration Proceedings South Australia Supreme Court Civil Supplementary Rules 2014 Schedule 3 Approved Forms (Extracts) Supreme Court Rules 1971 (WA)

Table of Provisions Table of Amendments Order 81D — Arbitration Law Rules Uniform Civil Procedure Rules 1999 (Qld) Uniform Civil Procedure Rules 2005 (NSW) (Extracts) Table of Provisions Table of Amendments Part 47 — Matters arising under the Commercial Arbitration Act 2010 Supreme Court Rules (NT) (Extracts) Table of Provisions Table of Amendments Chapter 6 — Commercial Arbitration Rules Order 91 — Commercial Arbitration Part 1 — General Matters Part 2 — Offers of Compromise Further Reading Index

[page 1]

Introduction The authors have written this publication to assist persons engaging in domestic commercial arbitrations to better understand the Commercial Arbitration Act in their state or territory. The Australian domestic Arbitration Acts are based on the provisions of the 2006 United Nations International Trade Law (UNCITRAL) Model Law. The Model Law has a completely different history and development to any Australian domestic law. Particular care is needed when reading or interpreting the Australian domestic arbitration laws. In many instances, the words are the same as those in Australian domestic laws but the meaning is very different. The annotations to this Act will hopefully assist to elucidate the subtle differences in meaning. The International Arbitration Act 1974 (Cth) has recently been amended to make it more compatible with the 2006 United Nations International Trade Law (UNCITRAL) Model Law. The alignment of the International Arbitration Act 1974 (Cth) and the domestic Commercial Arbitration Acts with the 2006 United Nations International Trade Law (UNCITRAL) Model Law may help to make Australia a more favourable place for International Arbitrations, as local arbitrators and arbitration practitioners will have a greater familiarity with the UNCITRAL Model Law and its application. An analysis of the UNCITRAL Arbitration Rules is found in C E Croft, C Kee, J Waincymer, A Guide to the UNCITRAL Arbitration Rules, Cambridge University Press, Melbourne, 2013. The interpretation of the International Arbitration Act 1974 (Cth) will inform the interpretation of the domestic state and territory Commercial Arbitration Acts and vice versa. It is anticipated that this process will be assisted by different jurisdictions of the federal and state courts. The Federal Court has jurisdiction only in respect of the International Arbitration Act 1974 (Cth) whereas the state supreme courts have jurisdiction in regard to both the International Arbitration Act 1974 (Cth) and the relevant state Commercial Arbitration Act. An example of state supreme courts deciding matters under the International Arbitration Act 1974 (Cth) and the relevant state Act is Cape Lambert Resources Ltd v MCC

Australia Sanjin Mining Pty Ltd [2013] WASCA 66. Australian Resource Companies are selective of the place of arbitration if it is outside Australia. In some cases attempts have been made to make it obligatory to strictly follow the dispute resolution procedures; parties are required to seek urgent injunctive and declaratory relief and interim orders from a state supreme court. In support of a detailed and comprehensive dispute resolution procedure a detailed knowledge of the state Commercial Arbitration Act and its “opt-out” provisions, will allow a greater flexibility in the drafting of arbitration agreements. The Commercial Arbitration Act 2011 (Vic) was chosen to be included in full and annotated, as it is the leading state in arbitration law with a well-developed commercial court with a specialist judge for arbitrations and the best rules to administer arbitration both domestically and internationally. The Uniform Commercial Arbitration Act has been enacted and proclaimed in all states and territories. In this regard it is somewhat unique as all states and territories passed the same Act. Some states were initially reluctant to pass what they called “template” legislation but abided by the agreement made at the meeting of the State Committee of Attorneys General and passed this Act [page 2] without amendment. For instance, the Commercial Arbitration Act 2012 (WA) has been proclaimed to commence on 7 August 2013. In the Commencement Information at [7001] is a table setting out the various state Commercial Arbitration Acts and their dates of proclamation.

[page 3]

Comparative Table [6001] Commercial Arbitration — Comparative Table This table indicates where specific topics are treated: under the previous commercial arbitration regime; and under the regime of harmonised Commercial Arbitration Acts based on the 2006 United Nations International Trade Law (UNCITRAL) Model Law. The Model Law and the Australian domestic arbitration laws reflect a different history and antecedents to any other Australian domestic law, including the previous Commercial Arbitration Acts. Particular care is needed when reading or interpreting the Australian domestic arbitration laws. In many instances, the words are the same as those in Australian domestic laws but the meaning is very different. The table also indicates where there are structural variations across the domestic Acts based on the Model Law.

[page 4]

[page 5]

[page 6]

[page 7]

[page 8]

[page 9]

[page 10]

[page 11]

[page 13]

Commencement Information [7001] Commencement information Jurisdiction

ACT NSW NT Qld SA Tas Vic WA

Commercial Arbitration Acts based on UNCITRAL Model Law on International Commercial Arbitration Name Assent date Commencement date — — — Commercial Arbitration Act 28 June 2010 1 October 2010 2010 Commercial Arbitration (National Uniform Legislation) 31 August 2011 1 August 2012 Act 2011 Commercial Arbitration Act 14 March 2013 17 May 2013 2013 Commercial Arbitration Act 22 September 2011 1 January 2012 2011 Commercial Arbitration Act 16 June 2011 1 October 2012 2011 Commercial Arbitration Act 18 October 2011 17 November 2011 2011 Commercial Arbitration Act 29 August 2012 7 August 2013 2012

[page 15]

Opt-out Provisions [8001] Opt-out provisions The opt-out provisions in the Commercial Arbitration Acts often commence with the words “Unless otherwise agreed or the parties are free to determine or parties are free to agree … as are chosen by the parties” … Section or part of a section s 3(1) s 10(1) s 11(2) s 11(3) s 11(4)

s 11(6) s 13(1) s 17(1) s 20(1) s 20(3) s 21 s 22(1) s 23(1) s 23(3)

Description of section or part of a section Receipt of written communications to a party personally, at place of address, at habitual residence or mailing address and received on day it is delivered. Number of arbitrators. The parties are free to agree on the procedure of appointing the arbitrator or arbitrators subject to subss (4) and (5). Failing such agreement under s 11(2), then if a party fails to act s 11(3)(a), (b) and (c) occur. If there is a failure of the appointment procedure agreed on by the parties and (a), (b) or (c) had occurred, then unless the agreement provides otherwise, the court can act at the request of a party. The court in appointing an arbitrator or arbitrators is to have regard to the agreement of the parties as to the qualifications required by the arbitrator in addition to other specified factors to secure the appointment of an independent and impartial arbitrator. Parties are free to agree on a procedure for challenging an arbitrator, subject to subs (4). Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures. Parties are free to agree on the place of arbitration. Parties can agree not to have the arbitrators meet at a place outside the state or territory. Arbitral proceedings commence on the date on which a request is received by the respondent, if not agreed by the parties. Parties can agree on the language or languages to be used in the arbitration. Statements of claim and defence are subject to the contrary agreement of the parties. Unless otherwise agreed by the parties the party may amend its claim or defence subject to the approval of the arbitral tribunal.

s 24(1)

s 24(2)

Subject to the contrary agreement by the parties, the arbitral tribunal is to decide matters in regard to hearings, oral hearings, presentation of evidence, or oral arguments or whether the proceedings are to be conducted on the basis of documents or other materials. Unless otherwise agreed between the parties the arbitral tribunal will hold hearings, if requested by a party.

[page 16] Section or part of a section s 25(1)

s 25(2)

s 26

s 27B(2)

s 27C(1) s 27D(1)

s 27D(4) s 27E(1) s 27J(1) s 28(1) s 33(5) s 33A s 33B

Description of section or part of a section Default of a party. Unless otherwise agreed by the parties, if there has been a failure to communicate by a party, then s 25(1)(a) and (b); if a failure to appear then s 25(1) (c). Unless otherwise agreed if a party fails to do any other thing necessary for the proper and expeditious conduct of the arbitration the arbitral tribunal can do either s 25(2)(a) or (b). Expert appointed to the arbitral tribunal under: (a) unless otherwise agreed the arbitral tribunal has power of appointment in regard to expert or experts; and (b) unless otherwise agreed by the parties the expert must after delivery of the written or oral report participate in the hearing or give the parties the opportunity to test his evidence. Unless otherwise agreed the court has powers in regard to the person in default can be obliged to: (a) attend the court to be examined as a witness; (b) produce the relevant document to the court; and (c) do the relevant thing. Consolidation of arbitral proceedings. Arbitrator can act as a mediator subject to certain conditions: (a) the arbitration agreement provides for the arbitrator to act as a mediator; (b) each party has consented in writing to the arbitrator so acting. All parties must agree in writing, at the end or after the mediation proceedings, for the arbitrator to conduct a subsequent arbitration after conducting a mediation between the parties. Unless otherwise agreed by the parties s 27E applies in regard to the disclosure of confidential information. Unless otherwise agreed by the parties the court has jurisdiction to determine any question of law arising in the course of the arbitration. Parties are to choose the rules of law applicable to the substance of the dispute. Procedure for obtaining an additional award within 30 days of receipt of the award. Specific performance. Costs: (a) unless otherwise agreed, costs are to be at the discretion of the arbitral tribunal; (b) unless otherwise agreed by the parties, the arbitral tribunal can direct that the

s 33D

costs, or a portion of them, be limited to a specified amount. Unless otherwise agreed in writing by the parties the court is to decide all issues arising from a failed arbitration.

[page 17] Section or part of a section s 33E s 33F

s 37

Description of section or part of a section Interest up to making of award: unless otherwise agreed by the parties, where a tribunal makes an award of money, the arbitral tribunal can award interest. Unless otherwise agreed by the parties the arbitral tribunal can make an award for the payment of money, and under the award, the amount is to be paid by a particular date (the due date). Death of a party: unless otherwise agreed by the parties, if a party to an arbitration agreement dies, the agreement is not discharged but is enforceable by or against the personal representative of the deceased.

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Commercial Arbitration Act 2011 (Vic) TABLE OF PROVISIONS Section

Title

PART 1A — PRELIMINARY 1AA 1AB 1AC 1AD

1 2 2A 3 4 5 6

7 8 9

Purposes Commencement Paramount object of Act Act to bind Crown PART 1 — GENERAL PROVISIONS Scope of application Definitions and rules of interpretation International origin and general principles Receipt of written communications Waiver of right to object Extent of court intervention Court for certain functions of arbitration assistance and supervision PART 2 — ARBITRATION AGREEMENT Definition and form of arbitration agreement Arbitration agreement and substantive claim before court Arbitration agreement and interim measures by court PART 3 — COMPOSITION OF ARBITRAL TRIBUNAL

10 11 12 13 14 15

16

Number of arbitrators Appointment of arbitrators Grounds for challenge Challenge procedure Failure or impossibility to act Appointment of substitute arbitrator PART 4 — JURISDICTION OF ARBITRAL TRIBUNAL Competence of arbitral tribunal to rule on its jurisdiction [page 20]

Section

Title

PART 4A — INTERIM MEASURES

17 17A

DIVISION 1 — INTERIM MEASURES Power of arbitral tribunal to order interim measures Conditions for granting interim measures

17B 17C

DIVISION 2 — PRELIMINARY ORDERS [omitted] [omitted]

DIVISION 3 — PROVISIONS APPLICABLE TO INTERIM MEASURES 17D Modification, suspension, termination 17E Provision of security 17F Disclosure 17G Costs and damages DIVISION 4 — RECOGNITION AND ENFORCEMENT OF INTERIM MEASURES 17H Recognition and enforcement 17I Grounds for refusing recognition or enforcement

17J

18 19 20 21 22 23 24 24A 24B 25 26 27 27A 27B 27C 27D 27E 27F 27G

DIVISION 5 — COURT-ORDERED INTERIM MEASURES Court-ordered interim measures PART 5 — CONDUCT OF ARBITRAL PROCEEDINGS Equal treatment of parties Determination of rules of procedure Place of arbitration Commencement of arbitral proceedings Language Statements of claim and defence Hearings and written proceedings Representation General duties of parties Default of a party Expert appointed by arbitral tribunal Court assistance in taking evidence Parties may obtain subpoenas Refusal or failure to attend before arbitral tribunal or to produce document Consolidation of arbitral proceedings Power of arbitrator to act as mediator, conciliator or other nonarbitral intermediary Disclosure of confidential information Circumstances in which confidential information may be disclosed Arbitral tribunal may allow disclosure of confidential information in certain circumstances [page 21]

Section

27H

Title

The Court may prohibit disclosure of confidential information in certain circumstances

27I 27J

The Court may allow disclosure of confidential information in certain circumstances Determination of preliminary point of law by the Court

PART 6 — MAKING OF AWARD AND TERMINATION OF PROCEEDINGS 28 Rules applicable to substance of dispute 29 Decision-making by panel of arbitrators 30 Settlement 31 Form and contents of award 32 Termination of proceedings 33 Correction and interpretation of award; additional award 33A Specific performance 33B Costs 33C Application of Legal Profession Uniform Law (Victoria) 33D Costs of abortive arbitration 33E Interest up to making of award 33F Interest on debt under award

34 34A

35 36

37 38 39 40 41 42

PART 7 — RECOURSE AGAINST AWARD Application for setting aside as exclusive recourse against arbitral award Appeals against awards PART 8 — RECOGNITION AND ENFORCEMENT OF AWARDS Recognition and enforcement Grounds for refusing recognition or enforcement PART 9 — MISCELLANEOUS Death of party Interpleader Immunity Supreme Court — limitation of jurisdiction Court rules Regulations

43 44

PART 10 — SAVINGS AND TRANSITIONAL PROVISIONS Savings and transitional provisions Regulations of a savings or transitional nature

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Commercial Arbitration Act 2011 (Vic) TABLE OF AMENDMENTS Commercial Arbitration Act 2011 No 50 was assented to on 18 October 2011 and commenced on 17 November 2011. The Act has been amended as follows: Amending Legislation Date of Assent Legal Profession Uniform Law Application Act 2014 25 March 2014 No 17

Date of Commencement Sch 2 item 16: 1 July 2015 (Gaz S151 of 16 June 2015)

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PART 1A — PRELIMINARY Note: Sections of this Act that contain a reference to the “Model Law” in the heading are substantially the same as the provisions of the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985 with amendments as adopted by that Commission in 2006) so as to be as uniform as possible with the UNCITRAL Model Law. Some changes have been made to those provisions of the Act based on the UNCITRAL Model Law to amend or supplement the provisions in their application to domestic arbitrations in Victoria or to accommodate modern drafting styles and conventions (for example, provisions are drafted in gender neutral terms and archaisms are replaced with modern alternatives). Notes draw attention to substantive changes. The original numbering of the “articles” of the UNCITRAL Model Law has been retained but converted to references to “sections” and articles containing more than one sentence have been re-formatted into subsections. There are a number of additional provisions to those based on the UNCITRAL Model Law.

ANNOTATIONS [s 1A.5] Uniform Commercial Arbitration legislation based on UNCITRAL Model Law The Standing Committee Attorneys-General (SCAG) proposed basing the new uniform commercial arbitration legislation on the UNCITRAL Model Law, supplemented by additional provisions as deemed necessary or appropriate. Several of the reasons given for adopting this approach were set out in an Issues Paper titled: Reform of the Uniform Commercial Arbitration Acts (December 2009) by the NSW Department of Justice and Attorney General and included: 1. The UNCITRAL Model Law has legitimacy and familiarity worldwide. It has provided an effective framework for the conduct of international arbitrations in many jurisdictions including Australia (in 1989 the Commonwealth adopted the 1985 Order to trial UNCITRAL Model

Law in its International Arbitration Act 1974, with some additional provisions. 2. There is nothing in the UNCITRAL Model Law that confines its application to international arbitrations only. Like domestic commercial arbitration laws, it provides a largely procedural framework to deal with issues such as the appointment of arbitrators, jurisdiction of arbitrators, conduct of arbitral proceedings and the making of awards. With new minor amendments the Model Law is completely adaptable to domestic arbitration. 3. Several other jurisdictions, such as New Zealand and Singapore, have adopted the UNCITRAL Model Law to regulate domestic commercial arbitrations. This has demonstrated the relevance and effectiveness of the Model Law when applied to non-international disputes. The New Zealand Law Commission reviewed the Arbitration Act 1996 (NZ) in 2003 in Report No 83, Improving the Arbitration Act 1996 (February 2003) and found that the legislation was working well. 4. Basing the commercial arbitration legislation on the UNCITRAL Model Law would create national consistency in regulation and conduct of international and domestic commercial arbitration. Practitioners and the courts could draw on case law and practice in the Commonwealth and overseas to inform the interpretation and application of its provisions.

[page 26] 5. Given the difficulty in reaching consensus to progress in piecemeal amendments, the adoption of an existing model (that is well-known and has proven successful) as the basis for the new domestic commercial arbitration legislation was thought to be a more successful approach. (See: speech by the Commonwealth Attorney-General on 4 December 2009, International Commercial Arbitration in Australia: More Effective and Certain, following the adoption of the recommendations of a Review of the International Arbitration Act 1974 in Discussion Paper, November 2008, Office of International Law Commission, Attorney General’s Dept; Second Reading Speech (Victorian LA 17 August 2011, LC 15 September 2011.) [s 1A.10] Amendment Prior to the adoption of the Uniform Commercial Arbitration Bill 2010, such as the Commercial Arbitration Bill 2010 (NSW) and

the Commercial Arbitration Bill 2010 (Vic), there were state-based Commercial Arbitration Acts that were generally uniform although the passing of amendments often resulted in timing differences between the various state Acts. Attempts to progress discreet amendments encountered differing views among stakeholders and the legislation did not proceed. [s 1A.15] Model Commercial Arbitration Bill The Standing Committee of Attorneys-General (SCAG) consisting of all state and territory AttorneysGeneral (from 17 September 2011 this body transitioned to the Standing Council on Law and Justice (SCLJ)) agreed, in May 2010, to develop a Model Commercial Arbitration Bill. This Bill was developed through the New South Wales Attorney-General’s Office. The Model Commercial Arbitration Bill was developed with the aim of introducing that legislation into each state and territory in place of the Commercial Arbitration Acts. The Bill as developed in New South Wales created some controversy with some differences arising between arbitration practitioners in different states. One area of controversy has been s 27D, that allows an arbitrator to act as mediator, conciliator or other nonarbitral intermediary. The need for such a provision and whether it will be used have been questioned. The Model Commercial Arbitration Bill was enacted in New South Wales as the Commercial Arbitration Act 2010. Other states and territories have gradually enacted this legislation notwithstanding some doubts about certain provisions, without making any alterations to the Model Act.

Purposes 1AA The purposes of this Act are— (a) to improve commercial arbitration processes to facilitate the fair and final resolution of commercial disputes by arbitration without unnecessary delay or expense; and (b) to make consequential amendments to other Acts; and (c) to repeal the Commercial Arbitration Act 1984.

Commencement 1AB (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 May 2012, it comes into operation on that day.

ANNOTATIONS [s 1AB.5] Date of commencement The New SouthWales Act commenced on 1 October 2010 and the Victorian Act on 17 November 2011. The commencement date varies in each Australian state and territory depending on when their legislatures passed the Model Commercial Arbitration Bill.

[page 27] (See: Commencement Information at [7001] for a table setting out the various state Commercial Arbitration Acts and their dates of proclamation.)

Paramount object of Act 1AC (1) The paramount object of this Act is to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense. (2) This Act aims to achieve its paramount object by— (a) enabling parties to agree about how their commercial disputes are to be resolved (subject to subsection (3) and such safeguards as are necessary in the public interest); and (b) providing arbitration procedures that enable commercial disputes to be resolved in a cost effective manner, informally and quickly. (3) This Act must be interpreted, and the functions of an arbitral tribunal must be exercised, so that (as far as practicable) the paramount object of this Act is achieved. (4) Subsection (3) does not affect the application of section 35 of the Interpretation of Legislation Act 1984 for the purposes of interpreting this Act.

ANNOTATIONS [s 1AC.5] Act reflects the overriding purpose of commercial arbitration This section reflects and gives effect to the overriding principles and aims of the Act. The Act gives effect to the overriding purpose of commercial arbitration, namely, to provide a method of finally resolving disputes that is quicker, cheaper and less formal than litigation. Accordingly, the Act was written to reflect the following principles and aims: 1. the overriding objective of the legislation was to facilitate the fair and final resolution of disputes by an impartial tribunal quickly and cost effectively; 2. the conduct of an arbitration should involve procedures to give effect to the overriding objective, so that an arbitrated dispute can be resolved more informally, more quickly and with less cost than if the dispute had been resolved by a court; 3. the arbitral tribunal should conduct the arbitration to give effect to the foregoing principles; and 4. the parties to the arbitration should be free to agree how the disputes are to be resolved subject only to point 3 and such safeguards as are necessary in the public interest. (See: Discussion paper on Reform of the Uniform Commercial Arbitration Acts, December 2009 in NSW Dept of Justice and Attorney-General at p 3.) The inclusion of the paramount object is significant. It is expressed in language similar to a number of other provisions such as the English Civil Procedure Rules 1998 s 1.2, the Victorian Civil Procedure Act 2010; the New South Wales Civil Procedure Act 1996 s 56 and arbitration rules, such as the Institute of Arbitrators & Mediators Australia Arbitration Rules 2007 r 1; ACICA (Australian Centre for International Commercial Arbitration); ICC (International Chamber of Commerce); SIAC (Singapore International Arbitration Centre); HKIAC (Hong Kong International Arbitration Centre). However, the provision in the Act is different in two respects. First, the paramount object does not express considerations of proportionality to be taken into account in its operation. The English and also the IAMA rules; the ACICA Rules; the ICC Rules; the SIAC Rules and the HKIAC Rules require that the equivalent paramount object be implemented having regard to the complexity of the issues, the importance of the case, the amount of money involved and, for the English rules, the financial position of each party. The Act seeks to achieve the paramount object only by comparison to the formality, speed and cost of

proceedings in a court. Measuring the achievement

[page 28] of the object by analogy to court proceedings lacks clarity and does not have the simple force that exists in the English rules (and the IAMA rules and other institutional rules). Second, the Act does not expressly bind the parties to an arbitration to the paramount object in the way that they are so bound under the English rules (r 1.3). The Act only expresses a general duty upon the parties to behave with expedition (s 24A). The great strength of the paramount object and its role as a significant tool for the efficient conduct of domestic arbitration is that it one of the first times such an object has been expressed as legislation. Unlike rules of court that are only procedural rules to be regarded as servants and not masters of justice (Harding v Bourke (2000) 48 NSWLR 589), s 1AC is legislative prescription binding upon the arbitrator in the conduct of the arbitration. The paramount object in the Commercial Arbitration Acts will override objectives in the state civil procedure legislation. Furthermore, the paramount object is a binding consideration upon the courts when they come to consider appeals, if any, based upon the actions taken by the arbitrator. In 2009–10 the Commonwealth conducted a current review of the International Arbitration Act 1974 (Cth). This Act is drafted consistently with the 1974 Act to the greatest extent possible to ensure genuine harmonised systems for international and domestic arbitration. (See: M J Sweeney, “The New Commercial Arbitration Act: Understanding the Paramount Object in the Context of Party Autonomy”, IAMA National Conference, May 2012, (2012) 31 The Arbitrator and Mediator, No 1, May 2012 at 15.) [s 1AC.10] “fair and final” The paramount object in s 1AC(1) is that of arbitration to have a “fair and final” hearing as distinct from litigation where there can be many layers of appeal. The use of the word “fair” imports some imprecision in that some delay and expense is allowed for in the arbitration process. (See: For further details on “fair”, see s 18. Compare Arbitration Act 1996 (UK) s 1(a) where only “unnecessary delay and expense” is contrary to the

paramount object of the Act. See also [s 1AC.15].) [s 1AC.15] Comparison with the New Zealand and the United Kingdom Arbitration Acts The Arbitration Act 1996 (NZ) s 5 sets out certain specific purposes. It states: The purposes of this Act are— (a) to encourage the use of arbitration as an agreed method of resolving commercial and other disputes; and (b) to promote international consistency of arbitral regimes based on the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on the 21 June 1985; and (c) to promote consistency between the international and domestic arbitral regimes in New Zealand; and (d) to redefine and clarify the limits of judicial review of the arbitral process and of arbitral awards; and (e) to facilitate the recognition and enforcement of arbitration agreements and arbitral awards; and (f) to give effect to the obligations of the Government of New Zealand under the Protocol on Arbitration Clauses (1923), the Convention on the Execution of Foreign Arbitral Awards (1927), and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the English texts of which are set out in Schedule 3). The Arbitrators and Mediators Institute of New Zealand Inc (AMINZ), drawing on legislation in other jurisdictions, submitted to the New Zealand Law Commission (Report 83: Improving the Arbitration Act 1996, February 2003,Wellington, New Zealand) that a further provision should be inserted into the Act, as s 5A, to identify the main objects of the Act. The AMINZ proposed that a new s 5A should be enacted in the terms identical to s 1 of the Arbitration Act 1966 (UK):

[page 29] 5A General Principles The provisions of this Act are founded upon the following principles and shall be construed accordingly:

(a) The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense; (b) The parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest. The New Zealand Law Commission was not prepared to embark on consideration of this issue for the following reasons: (i) the principles underpinning the Act had been widely accepted; (ii) the introduction of a provision dealing with general principles to be read alongside a provision dealing with purposes could lead to potential difficulties; (iii) the suggestion was more than incidental to the issues being considered and in the absence of consultation the New Zealand Law Commission was not prepared to make any recommendation. [s 1AC.20] Restriction on parties agreeing to procedure Section 1AC(2) and (3) allows an arbitrator to have the parties adopt a more efficient procedure by persuasion or encouragement and failing that by amending the parties chosen method or procedure. This restriction on the parties’ autonomy is a major point of difference from s 1 of the Arbitration Act 1996 (UK) (set out above). (See also: s 19(1) where the Determination of Rules of Procedure is “Subject to this Act …”. An arbitrator should only amend the parties chosen procedure when it is contrary to the paramount object of the Act (s 1AC(1) and 1AC(3). See also [s 1AC.5].) [s 1AC.25] Interpretation of uniform legislation In Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; 112 ALR 627, the High Court made the following comments on the failure of a state court to follow a decision of the full Federal Court on the Corporations Law. Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said at CLR 492: It is somewhat surprising that the Full Court of the Supreme Court of Western Australia, more particularly that Mr Commissioner Ng, declined to follow what was said by the Full Court of the Federal Court in Windsor v National Mutual life Assoc of Australia Ltd (1992) 34 FCR 580; 106 ALR 282. Although the considerations applying are somewhat different from those applying in the case of Commonwealth legislation, uniformity of decision in the interpretation of uniform national legislation such as the Law is a sufficiently important consideration to require that an intermediate appellate court — and all the more so a single judge — should not depart from an

interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong. The above sentiments were re-stated by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151–2; 236 ALR 209 when Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said: Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong (Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; 112 ALR 627 at 628–9). Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law. There has already been an example of a single judge feeling obliged to follow the Court of Appeal despite counsel’s submission that he was not obliged to do so (Multan Pty Ltd v Ippoliti [2006] WASC 130 at [45] per Simmonds J).

[page 30] (See: D C Pearce and R S Geddes, Statutory Interpretation in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2011, at [1.12], [1.13], [1.14], [3.40].)

Act to bind Crown 1AD This Act binds the Crown in right of Victoria and, in so far as the legislative power of the Parliament of Victoria permits, the Crown in all its other capacities. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 1AD.5] Importance of binding the “Crown” It is important that the Act

binds the “Crown” (the administrative structure and agencies of the executive government) in the Australian Federal system both in the right of the Commonwealth and in the right of the state. The Act is part of a pattern of uniform state legislation. Extra-territorial issues in relation to other states and to the Commonwealth are interpreted uniformly in the various jurisdictions. (See: D C Pearce and R S Geddes, Statutory Interpretation in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2011, at [1.12], [1.13], [1.14], [3.40].) The Commonwealth and state governments through their executive branches or departments and agencies are involved in major contracts for public works that include arbitration clauses. (See: N Seddon, Government Contracts — Federal, State and Local, 5th ed, The Federation Press, Sydney, 2013.) This section makes it clear that once established, a presumption that an Act does not bind the Crown except by plain words does not apply to this Act. This section also demonstrates that the Crown both in the right of the Commonwealth and in the right of the states is committed to the paramount object of this Act found in s 1AC even though considerations of proportionality (the equivalent paramount objective) are not taken into account. (See: [s 1AC.5].)

PART 1 — GENERAL PROVISIONS

Scope of application 1 (cf Model Law Art 1)

(1) This Act applies to domestic commercial arbitrations. Note The International Arbitration Act 1974 of the Commonwealth covers international commercial arbitrations and the enforcement of foreign arbitral awards. (2) The provisions of this Act, except sections 8, 9, 17H, 17I, 17J, 35 and 36, apply only if the place of arbitration is in Victoria. (3) An arbitration is domestic if— (a) the parties to an arbitration agreement have, at the time of the

conclusion of that agreement, their places of business in Australia; and (b) the parties have (whether in the arbitration agreement or in any other document in writing) agreed that any dispute that has arisen or may arise between them is to be settled by arbitration; and (c) it is not an arbitration to which the Model Law (as given effect by the International Arbitration Act 1974 of the Commonwealth) applies. [page 31] (4) For the purposes of subsection (3)— (a) if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement; and (b) if a party does not have a place of business, reference is to be made to the party’s habitual residence. (5) This Act does not affect any other Act by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Act. (6) Subject to subsection (5), this Act applies to arbitrations provided for in any other Act as if— (a) the other Act were an arbitration agreement; and (b) the arbitration were pursuant to an arbitration agreement; and (c) the parties to the dispute which, by virtue of the other Act, is referred to arbitration were the parties to the arbitration agreement— except in so far as the other Act otherwise indicates or requires. Model Law note The term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business co-operation; carriage of goods or passengers by air, sea, rail or road. Note This section differs from the Model Law to the extent necessary to apply Art 1 as incorporated in this Act to domestic commercial arbitrations.

Section 1AD contains provisions that also relate to the application of this Act.

ANNOTATIONS This provision provides that the Act applies to “domestic commercial arbitrations”. It defines what is a “domestic commercial arbitration” for the purposes of the Act. As the Act applies to arbitrations that are of a domestic and commercial nature, the meaning of “commercial” and “domestic” arbitration in this context is central to the application of this Act. [s 1.5] Meaning of “commercial” arbitration The Model Law Note contained in the provision indicates that a very wide interpretation is intended to be given to the term “commercial” and “commercial relationship” (see Note after subs (1) Scope of application]. The Model Law Note is not a definition of the term “commercial” of “commercial relationship”, but is rather a non-exhaustive list of transactions that would be classified as being the type of transaction or relationship having a “commercial” nature. Given the difficulties involved in crafting a definitive list of “commercial” transactions and relationships for the purposes of the Act, a non-exhaustive list was used on the basis there is no bright line test between what are and what are not “commercial relationships”. (See: P Binder, International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions, 3rd ed, Sweet & Maxwell, 2010.) [Case Study: ASADA v 34 Players and One Support Person [2014] VSC 635] This case concerned an application made by the Australian Sports Anti-Doping Authority (ASADA) to the

[page 32] Supreme Court of Victoria seeking orders for the issue of subpoenas, pursuant to s 27A of the CAA and the Rules of Court, requiring two individuals, Charter and Alavi, to attend forthcoming AFL Anti-Doping Tribunal proceedings (Tribunal Proceedings). The Tribunal Proceedings were to determine whether 34 current and former players (Players), and one former support person, of the Essendon Football Club (Essendon) violated the AFL Anti-Doping Code, and if so, what

sanctions should be imposed. ASADA sought to compel Charter and Alavi to attend the Tribunal Proceedings to give evidence in the proceedings; however they refused to do so. ASADA and the AFL contended that s 27 of the CAA conferred the Supreme Court of Victoria with jurisdiction under this legislation and the Rules of Court to issue subpoenas. ASADA argued that the provisions of the Australian Sports Anti-Doping Authority Act 2006 (Cth), together with the provisions of the National Anti-Doping Scheme, involved legislative machinery that provided a compulsory arbitration procedure. The Players and Alavi contended that the Tribunal Proceedings was not a commercial arbitration and therefore the CAA had no application. The central issue in the case was whether the Tribunal Proceedings, properly construed, were a domestic commercial arbitration which enlivened the application of the CAA, which would empower the issue of the subpoenas. Critically, s 1 of the CAA provides that the CAA will not have application where a dispute resolution process is either not an arbitration at all, or, if it is an arbitration, is one which is not “commercial” (at [7]). In order to consider whether the CAA could be utilised by the Court to issue subpoenas, Croft J was required to consider whether the Tribunal Proceedings, properly characterised, were a domestic commercial arbitration. This required the Court to consider whether the Tribunal Proceedings were an “arbitration” and, if so, whether they were “commercial” as required by the CAA. In order to determine this question, Croft J considered s 1 of the CAA, having regard to the international provenance of these provisions under the Model Law; particularly with reference to the meaning of “arbitration” and the meaning of “commercial”, as these two words are used in the expression “commercial arbitration”. Having regard to the legislative history of Article 2 of the Model Law, together with commentary from leading commentators, Croft J observed that the term “commercial” has been given a wide interpretation which has the ability to cover matters arising from relationships of a commercial nature. Citing Holtzmann and Neuhaus (who have written on the history of the UNCITRAL Working Group deliberations on the development and drafting of the Model Law), Croft J accepted that the type of commercial relationships which may be recognised for the purposes of the CAA is extensive and not exhaustive. However, not all relationships are commercial, such as labour and employment disputes, and ordinary consumer claims (at [11]). Croft J also considered the characteristics of arbitration at common law. In this regard, Croft J commenced by citing the following definition of arbitration provided by Lord Esher MR in Re Carus-Wilson and Greene (1887) 18 QBD 7

at 9 (which has been cited with approval in Australian Courts): If it appears from the terms of the agreement by which a matter is submitted to a person’s decision, that the intention of the parties was that he should hold an inquiry in the nature of a judicial inquiry, and hear the respective cases of the parties, and decide upon the evidence laid before him, then the case is one of an arbitration. The intention in which cases is that there shall be a judicial inquiry worked out in a judicial manner. On the other hand, there are cases in which a person is appointed to ascertain some matter for the purpose of preventing differences from arising, not of settling the when they have arisen, and where the case is not one of arbitration but of a mere valuation. There may be cases of an intermediate kind, where, though a person is appointed to settle disputes that have arisen, still it is not intended that he shall be bound to hear evidence or arguments. In such cases it may be often difficult to say whether he is intended to be an arbitrator or to exercise some function other than that of an arbitrator. Such cases must be determined each according to its particular circumstances.

[page 33] While recognizing that there may be a range of factors or features of arbitration (such as those cited by Mustill and Boyd’s Commercial Arbitration), Croft J said that it is “extremely difficult” to formulate a comprehensive and prescriptive definition of “arbitration” (at [14]). His Honour considered that the answer lies, at the very least, in considering all the particular circumstances of the dispute resolution process under consideration. In some cases, the answer might be clear; in other cases, the answer might need to be determined intuitively. Croft J considered two particular English cases (having a sporting context) with respect to the characterization of the Tribunal Proceedings in this context. In Walkinshaw v Diniz [2000] 2 All ER (Comm) 237, the court considered whether a “Contracts Recognition Board” established by the Formula 1 Concorde Agreement between Formula 1 racing teams, drivers and the governing body (the FIA) could be characterized as an arbitration. In that case, Thomas J adopted the features of arbitration set out in Mustill and Boyd’s Commercial Arbitration oft cited “list” of features said to characteristic of arbitration proceedings. These factors are summarized as follows:

(a) The agreement pursuant to which the process is (or would be carried) must contemplate that a decision is final and binding; (b) The procedural agreement must contemplate that the process will be carried on between those persons whose substantive rights are determined by the tribunal; (c) The jurisdiction of the tribunal (to carry on the process and to decide such rights) must be derived from the consent of the parties (or from an order of a Court or from statute); (d) The tribunal must be chosen by the parties (or by a method to which they have consented) (e) The procedural agreement must contemplate that the tribunal will determine the rights of the parties in an impartial manner (which the tribunal owing an obligation of fairness); (f) The agreement of the parties to refer their dispute to the decision of the tribunal must be intended to be enforceable at law; (g) The procedural agreement must contemplate a process whereby the tribunal will make a decision upon the dispute which is already formulated at the time when the tribunal is appointed; (h) Whether the procedural agreement must contemplate that the tribunal will receive evidence and contentions, or at least give the parties an opportunity to put them forward; (i) Whether the wording of the agreement is consistent or inconsistent with the view that the process was intended to be an arbitration; (j) Whether the identity of the chosen tribunal, or the method prescribed for choosing the tribunal, shows that the process was intended to be an arbitration; (k) Whether the procedural agreement requires the tribunal to decide the dispute according to law. In that case, the court also considered that further features of an arbitration are that the parties have a proper opportunity to present their case, that arbitrators do not receive unilateral communications from parties (and they disclose communications to all parties), and that there are proper and proportionate procedures for the receipt of evidence. In England and Wales Cricket Board v Kaneria [2013] EWHC 1074 (Comm), the English High Court applied the same criteria set out by the Court in Walkinshaw for the purpose of determining whether the appeal panel of the England and Wales Cricket Board was an arbitral body (and whether the proceedings before it were arbitral proceedings). In this case, Croft J considered that it was helpful to approach the characterization of the Tribunal Proceedings by reference to the criteria recognized by the court in

Walkinshaw (as followed by the Court in Kaneria). In this case, ASADA contended that the Tribunal Proceedings constituted arbitration. It contended that the matters relating to anti-doping were submitted to the tribunal for hearing and determination; the tribunal conducts an inquiry akin to a judicial inquiry; the AFL Rules provide for hearings which provide parties an opportunity to be heard, and such rules require the tribunal to adopt a procedure for a proper and unbiased determination of the matter before it. ASADA

[page 34] expressly referred to various provisions of the AFL Rules and the NAD Scheme to establish these points. ASADA further contended that there is no need for an express reference to the word “arbitrator” or “arbitration” in order for an arbitration agreement to arise. Croft J proceeded to consider whether the relevant rules of the AFL, the NAD Scheme and the broader ASADA legislative established a Tribunal that could be properly categorized, by reference to the above indicia or factors, as an arbitration. First, Croft J considered the criterion that requires the parties to have a proper opportunity to present their case. Croft J considered that the rules and procedures set out in the AFL Code and Rules were indicative of a domestic disciplinary tribunal established under the rules of an association to which members or participants in that association are contractually bound (at [22]–[23]). Secondly, Croft J considered whether the indicia or criterion that arbitrators not receive unilateral communications from the parties, and disclose all communications to all parties, was met by reference to the relevant provisions in the AFL Code and the Rules. Croft J considered that while the Rules did provide some restrictions against unilateral communications, this indicia or criterion was not decisive. Thirdly, Croft J considered the criterion requiring there be proper procedures for the provision and receipt of evidence. His Honour acknowledged there was a degree of informality in respect of sporting disciplinary tribunals in respect of the requirement for proper procedures for the provision and receipt of evidence. While this was identified as a criterion which was satisfied, Croft J considered that domestic contractual tribunals and arbitral tribunals generally enjoy

considerable flexibility in procedure in this regard. Fourthly, Croft J considered the criterion that an arbitral tribunal make a decision which is binding on the parties (by reference to the procedural agreement between them). ASADA placed reliance on the provisions of the AFL Code that provided that the AFL will recognize and enforce any sanction applied by the AFL Tribunal. However, Croft J considered that these processes set out in the AFL Code (which included, among others, the ability to enforce tribunal decisions to the appeals board) are far away from the process of an arbitral tribunal. Croft J emphasized that the feature of the “product” arising from the process of the arbitral tribunal is that the arbitral award is final and binding on the parties, and which may be recognized and enforced by a Court of competent jurisdiction under ss 35 and 36 of the CAA (as based on Articles 35 and 36 of the Model Law). Croft J held that this is not the position with respect of determinations of the AFL tribunal, because, critically, the enforcing authority with respect to decisions of the AFL Tribunal is the AFL, and not the Court (being the Supreme Court of Victoria) under the Act. For this reason, Croft J considered that this feature is indicative of the Tribunal being properly characterized as a domestic disciplinary tribunal operating under a contractual framework, and not an arbitral tribunal. Croft J held that the fact such decisions may be able to be appealed to the Appeals Board of the AFL, or the Court of Arbitration for Sport, does not assist in establishing this feature. Moreover, His Honour said, the result of an adjudicative dispute resolution process, if it is to be considered to be an arbitral process, must produce a preclusive effect in the result. Thus Williams and Kawharu observe:1 One of the fundamental objectives of arbitration is to provide a final and binding resolution of disputes. The binding nature of arbitration is the corollary of party autonomy and consent. There are two aspects to the enforceability of arbitral proceedings: first, an agreement to arbitrate is an enforceable agreement to refer a particular dispute to arbitration; and secondly, arbitral awards are binding and have a preclusive effect in the same way that court judgments do by virtue of the principles of res judicata and estoppel. The power to make a binding decision distinguishes arbitration from other dispute resolution procedures such as mediation and conciliation, which aim to arrive at a negotiated settlement [footnotes omitted].

[page 35]

Fifthly, Croft J considered the criterion which requires a procedural agreement contemplating the determination of substantive rights. Croft J considered that the provisions in the AFL Code which purport to determine questions of compliance by a player to the AFL Code and Rules through their contractual relationship reinforced his Honour’s view that the Tribunal operates as a domestic disciplinary tribunal, enforceable by the contract between the player and the AFL. Sixthly, Croft J considered the criterion which requires an arbitral tribunal (having jurisdiction to determine rights of parties) to derive from the consent of the parties (or from the order of a Court or statute). Croft J again considered that the contractual agreements between the AFL player and the AFL and ASADA (through the provisions of the contract between them) elaborate the existence of a contractual relationship, and do not take the matter further in respect of the issue of consent. Seventhly, Croft J considered the criterion which requires that an arbitral tribunal be chosen either by the parties, or by a method to which they have consented. Croft J considered that the relevant provisions of the AFL Code which govern the appointment of members of the tribunal cannot be regarded as the atypical or unusual process applied to the appointment of tribunal members to an arbitral tribunal. Eighthly, Croft J considered the criterion which requires an arbitral tribunal to determine the rights of the parties in an impartial manner, with the tribunal owing obligations of fairness to both sides. Croft J considered that while the AFL Rules do provide the parties with an opportunity to be heard, and that the tribunal is obliged to comply with the rules of natural justice, this does not provide any assistance in the categorization of the Tribunal as an arbitral tribunal. This is because the same principles or requirements apply equally to domestic disciplinary tribunals. Ninthly, Croft J considered the criterion which requires an agreement to refer a dispute to an arbitral tribunal to be intended to be enforceable in law. Croft J determined that while a decision of an AFL tribunal might ultimately be enforceable through the web of applicable contractual provisions, this was not the same as the effect of an arbitral award, which is directly enforceable by a Court under the provisions of the CAA. Croft J considered that the “product” of an AFL Tribunal is not an arbitral award, but a decision enforceable by the AFL under the contractual framework established between the player and the AFL (including ASADA). Tenthly, Croft J considered the criterion which requires that a procedural

agreement must contemplate a process whereby the tribunal will make a decision on a dispute which is formulated at the time the tribunal is established or constituted. Croft J considered that while there will be a dispute relating to a player at the time an AFL tribunal is established, the establishment of this criterion is not definitive. For these reasons, Croft J did not consider that the Tribunal Proceedings could be properly characterized as arbitral proceedings. Therefore, the question of whether the proceedings were “domestic arbitration” proceedings did not need to be determined. Similarly, the Court was not required to determine the question of whether the Tribunal Proceedings was a “commercial arbitration”. However, His Honour did consider a number of authorities on the interpretation of the expression “commercial arbitration”. Croft J accepted the proposition that at the AFL level, the sport is fully profession and that there are other commercial aspects which are involved in playing and promoting the sport. However, Croft J considered that the types of disputes before the tribunal are primarily conduct and disciplinary proceedings with respect to players. This conduct is not “commercial” in the relevant sense. While there might be large scale commercial operations conducted by the AFL, there is a critical difference between those operations which do involve the presentation of the sporting spectacle of match play by the players. Nevertheless that aspect of the AFL activities was to be distinguished from the arrangements between the AFL and the players, which were characterized as matters of a different nature. Croft J considered that the relevant dispute before the tribunal was more akin to a labour or employment dispute, as distinct from a “commercial dispute”. In this respect regard was had to the relevant Collective Bargaining Agreements which formed part of the contractual web under consideration. Croft J held that even if the Tribunal Proceedings were properly characterized as arbitration proceedings, they were not “commercial” for the purposes of the CAA, and, consequently, not

[page 36] within the scope of the operation of that Act. Accordingly, as the CAA was found not to apply to the Tribunal Proceedings, s 27A, which provides for the issuing of subpoenas, could not be invoked. [s 1.10] Amended version of Art 1 of the Model Law

This section is an

amended version of Art 1 of the Model Law. It differs to the extent necessary to enable Art 1 (as incorporated in this Act) to apply to domestic commercial arbitrations. Section 3 of the Uniform Commercial Arbitration Act has been drawn upon to supplement the Model Law. Section 3 sets out various Acts that were repealed or amended. The section also contained transitional and application provisions. Section 40(7) of the Commercial Arbitration Act 1984 contained the following definition of “domestic arbitration”: 40(7) In this section domestic arbitration agreement means an arbitration agreement which does not provide, expressly or by implication, for arbitration in a country other than Australia and to which neither– (a) an individual who is a national of, or habitually resident in, any country other than Australia; nor (b) a body corporate which is incorporated in, or whose central management and control is exercised in, any country other than Australia– is a party at the time the arbitration agreement is entered into. [s 1.15] Application of the provisions In Shakur and Aintree Holdings Pty Ltd t/as Beaumonde Homes [2015] WASAT 12; BC201500680, the State Administrative Tribunal considered an application that proceedings before it be stayed and referred to arbitration pursuant to s 8 of the West Australian Act (see [s 8.15]). The party resisting that application sought to make an argument based on a literal reading of s 1(2) with the consequence being that, inter alia, s 8 did not apply to arbitration taking in Western Australia. Senior Member Raymond quite rightly rejected that argument and instead found that certain provisions were important enough to warrant their application even if the arbitration is held outside the jurisdiction of the court (at [23]–[24]): [23] It is clear, therefore, that the whole of the CA Act applies to commercial arbitration agreements entered into between parties who may have their places of business in other States or Territories in Australia. On a proper reading, s 8, s 9, s 17H, s 17I, s 17J, s 35 and s 36 of the CA Act apply to commercial

arbitrations, meeting the definition of a domestic arbitration, where the parties have their place of business outside of Western Australia in one of the other States or Territories, whereas all of its provisions of the CAAct apply to domestic commercial arbitrations conducted within Western Australia. [24] This is consistent with the paramount object of the CA Act because it facilitates the conduct of arbitrations as a method of dispute resolution by enabling the court to take steps by exercising the functions referred to in s 8, s 9, s 17H, s 17I, s 17J, s 35 and s 36 of the CAAct, which will uphold the integrity of the arbitration proceedings conducted anywhere in Australia. This ensures that all courts (including this Tribunal) give priority to the parties agreement to arbitrate even where the arbitration is conducted outside of Australia. This reading is supported by the views expressed in International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions, 3rd Ed, by Dr Peter Binder, Sweet & Maxwell at page 26. The learned writer there states that the provisions referred to immediately above “apply even if the place of arbitration is outside the adopting State”. This view is also supported by the discussion at paragraph 9 of the UNCITRAL 2012 Digestive Case Law on the Model Law on International Commercial Arbitration. It is there stated:

[page 37] The principle embodied in Article 1(2) is that the model law as enacted in a given state applies only if the place of arbitration is in the territory of the state. However, Article 1(2) also contains important exceptions to that principle, to the effect that certain articles apply, irrespective of whether the place of arbitration is in the enacting state or elsewhere…” [s 1.20] “Domestic” arbitration Meaning of “domestic” arbitration Section 1(3) of the Act defines what is a “domestic” arbitration. An arbitration is a “domestic” arbitration if three requirements are satisfied: 1. the parties to the arbitration agreement (at the time the arbitration agreement is concluded) have their places of business in Australia; 2. the parties have agreed (whether in the arbitration agreement, or in any

other document in writing) that any dispute that has arisen or may arise between them is to be settled by arbitration; and 3. it is not an arbitration to which the Model Law (as given effect by the IAA) applies. Place of business in Australia The first requirement dictates that all parties to the arbitration agreement must have their “places of business” in Australia at the time of the conclusion of the arbitration agreement. The requirement that all parties have their place of business in Australia at the time the arbitration agreement is concluded implies that there is a binding and enforceable arbitration agreement in place between the parties (in relation to the arbitration agreement, see s 7 below). The parties must have their respective places of business in Australia at the time of the conclusion of the arbitration agreement. If one or more parties to the arbitration agreement do not have a “place of business” in Australia, then the arbitration will not be a “domestic arbitration” for the purposes of the Act. If a party or parties moves their place of business outside Australia or ceases trading in Australia after the conclusion of the arbitration agreement, this does not affect the application of the Act. It is important to note that in the context of the Victorian Act, there is no requirement that the parties to the arbitration agreement have their place of business in Victoria. So long as all the parties have their place of business in Australia, the Victorian Act can apply. What amounts to a “place of business” is important for determining the application of the Act. However, the term is not defined in the Act. Traditionally, a “place of business” would connote having a physical premises within an Australian jurisdiction from which trade and commerce occurs. However in this internet age, with more trade and commerce being conducted virtually, a foreign company or entity may have a “place of business” in a jurisdiction in Australia without necessarily having a physical presence in Australia. In the event a party or parties does not have a “place of business”, either in Australia or in another jurisdiction, s 4(2) of the Act requires reference to be had to the party’s “habitual residence”. “Habitual residence” is not defined by the Act. What happens if a party has more than one place of business in Australia? On the basis that the provisions of the Act are intended to have uniform application in each of the states and territories of Australia, confusion may arise as to which Act applies. Section 4(1) provides that if one party has more than one place of business, the place of business for determining the application of the Act is the place of business which has the “closest relationship” to the arbitration agreement. Determining which place of business of a party or parties

has the closest relationship to the arbitration agreement will depend on all of the facts and circumstances of the relationship, and may not be determined by considerations of geographical proximity alone. Clearly, businesses and entities that have a registered office or a physical place of business in Australia will satisfy this element. Foreign companies or businesses that are registered overseas but who have a place of business in Australia will also satisfy this criteria. Agreement to refer disputes to arbitration The second requirement dictates that all parties must have agreed, whether in the arbitration agreement or in any other document in writing, that any

[page 38] dispute that has arisen or may arise between them is to be settled by arbitration. For the Act to apply, the parties must have entered into an enforceable and binding arbitration agreement, or have otherwise agreed in writing that the parties will refer any dispute between them to arbitration. In the event of a dispute, this provision will require the parties to provide documentary evidence establishing that the parties have agreed to submit their disputes to arbitration. Not an international arbitration The third requirement dictates that the arbitration cannot be one to which the IAA applies. This requirement makes it clear that the Act applies only to domestic commercial arbitrations, and not international commercial arbitrations. Application of other Acts Subsections (5) and (6) of the Act provide that the Act does not affect the operation of other statutes which provides that certain disputes: may not be submitted to arbitration (at all); or may be submitted to arbitration but only according to provisions other than those of the Act. Statutes other than the Act may mandate or require that certain disputes are not to be referred to arbitration or to be referred to arbitration in certain circumstances. In the event a statute requires a dispute to be referred to arbitration — except insofar as the statute otherwise indicates or requires—this Act will apply to such an arbitration as if the statute were an arbitration

agreement, the arbitration were pursuant to an arbitration agreement, and the parties to the dispute were parties to the arbitration agreement. Section 1(3) is a default provision that applies if the parties have agreed that the dispute is to be resolved by arbitration. [s 1.25] Transitional Provisions — s 43(1) Section 43(1) of the Act sets out the time when this Act applies to an arbitration agreement and an arbitration under such an agreement (s 43(1)(a)). A reference in an arbitration agreement to the former Act is taken as a reference to this Act or the corresponding provision (if any) of this Act (s 43(1)(b)). If the arbitration was commenced before the date of proclamation of this Act the governing law of the arbitration and the arbitration agreement is the former Act (s 43(2)). An arbitration is taken to have commenced if the dispute to which the relevant arbitration agreement applies has arisen and the arbitral tribunal has been properly constituted (s 43(3)(a) and s 43(3)(b)).

Definitions and rules of interpretation 2 (cf Model Law Art 2)

(1) In this Act— arbitral tribunal means a sole arbitrator or a panel of arbitrators; arbitration means any domestic commercial arbitration whether or not administered by a permanent arbitral institution; arbitration agreement — see section 7; confidential information, in relation to arbitral proceedings, means information that relates to the arbitral proceedings or to an award made in those proceedings and includes the following— (a) the statement of claim, statement of defence and all other pleadings, submissions, statements or other information supplied to the arbitral tribunal by a party; (b) any information supplied by a party to another party in compliance with a direction of the arbitral tribunal; [page 39]

(c) any evidence (whether documentary or otherwise) supplied to the arbitral tribunal; (d) any notes made by the arbitral tribunal of oral evidence or submissions given before the arbitral tribunal; (e) any transcript of oral evidence or submissions given before the arbitral tribunal; (f) any rulings of the arbitral tribunal; (g) any award of the arbitral tribunal; disclose, in relation to confidential information, includes publishing or communicating or otherwise supplying the confidential information; domestic commercial arbitration — see section 1; exercise a function includes perform a duty; function includes a power, authority or duty; interim measure — see section 17; Model Law means the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended by the United Nations Commission on International Trade Law on 7 July 2006); party means a party to an arbitration agreement and includes— (a) any person claiming through or under a party to the arbitration agreement; and (b) in any case where an arbitration does not involve all of the parties to the arbitration agreement, those parties to the arbitration agreement who are parties to the arbitration; the Court means, subject to section 6(2), the Supreme Court. Note The definitions of arbitration agreement, confidential information, disclose, domestic commercial arbitration, exercise, function, interim measure, Model Law, party and the Court are not included in the Model Law. (2) Where a provision of this Act, except section 28, leaves the parties free to determine a certain issue, such freedom includes the right of the parties to authorise a third party, including an institution, to make that determination. (3) Where a provision of this Act refers to the fact that the parties have agreed or that they may agree or in any other way refers to an agreement of the parties, such agreement includes any arbitration rules referred to in that agreement. (4) Where a provision of this Act, other than section 25(1)(a) and section

32(2)(a), refers to a claim, it also applies to a counter-claim, and where it refers to a defence, it also applies to a defence to such counter-claim. (5) Notes (other than the Model Law note to section 1) included in this Act do not form part of this Act. Note This provision is not included in the Model Law. (6) A heading to a section of this Act (other than sections 1AA, 1AB, 1AC and 1AD) does not form part of this Act. Note This provision is not included in the Model Law. [page 40]

ANNOTATIONS [s 2.5] Definitions and rules of interpretation The definitions and rules of interpretation closely follow the Model Law Art 2. The additional definitions reflect the application of the Act to domestic arbitration. [s 2.10] arbitral tribunal The role of an arbitral tribunal was summarised in the judgment of Mason CJ in Esso Australia Resources Ltd v Plowman (1995) 185 CLR 448. The Law Commission of New Zealand (in Report 83: Improving the Arbitration Act 1986, February 2003, Wellington, New Zealand at [19]) collated the propositions which emerge from Mason CJ’s judgment: In the absence of some manifestation of a contrary intention, parties, when submitting disputes to an arbitral tribunal, confer upon the tribunal, in Preliminary Paper 46, a discretion as to the procedures to be adopted in reaching its decision. In the exercise of its power with regard to procedural matters, an arbitral tribunal can decide who is entitled to be present at the hearing of the arbitration. But, that power must be exercised having regard to the provisions of the relevant contract. Unless the parties manifest a contrary intention, the arbitration will usually be held in private, in the sense that it is not open to the public. Those who are allowed, by the arbitral tribunal, to attend the hearing must have some connection with it or the parties should agree that attendance is appropriate. For example, persons whose presence is necessary for the proper conduct of the arbitration (such as a stenographer, witnesses and advisors) should be entitled to attend.

Those observations are consistent with practice in New Zealand. Indeed, it was because of that traditional practice that the NZ Commission, in 1991, declined to recommend enactment of a provision within Art 24 of the First Schedule to the Act, requiring hearings to be in camera. [s 2.15] arbitration In the Act “arbitration” means any domestic commercial arbitration whether or not administered by a permanent arbitral institution. Arbitration should be distinguished from an expert determination. (See: Age Old Builders Pty Ltd v Swintons Pty Ltd (2003) 20 VAR 200; [2003] VSC 307; BC200304749 at [s 7.5] and [s 8.25].) [s 2.20] arbitration agreement For further reference to this term see s 7. This definition is not included in the Model Law. [s 2.25] confidential information In relation to arbitral proceedings, this includes all the information from the claim to the award. This material is confidential as the proceedings are confidential proceedings in comparison with court proceedings. This definition is not included in the Model Law. [s 2.30] Confidentiality of arbitrations One of the reasons that many commercial enterprises use arbitrations is that the proceedings are confidential. If there is a need for an ongoing commercial relationship over time then arbitration is often the preferred method of dispute resolution. For instance, in mining and energy projects with a long life span. Another reason for electing to arbitrate rather than litigate a commercial dispute is speed of decision-making. In some jurisdictions it can take a long time for litigation to be heard and a longer time before a final decision is made in the court hierarchy. [s 2.35] English and Australian position on confidentiality The implications for arbitrations are found in the leading decisions. A basis for consideration of the issue of confidentiality is found in the following extract from the New Zealand Law Commission Report 83, Improving the Arbitration Act 1996 at [26]–[34], [37]–[38] (references omitted):

[page 41] [26] In Dolling-Baker v Merrett [1991] 2 All ER 890 (CA) the English court of Appeal held that a duty of confidentiality between the parties to an arbitration

was to be implied as a matter of law. In Esso Australia Resources Ltd v Plowman (1995) 185 CLR 448, that issue was considered by the High Court of Australia; Mason CJ put it as follows: This appeal raises the important question of whether an arbitrating party is under an obligation of confidence in relation to documents and information disclosed in, and for the purposes of, a private arbitration. [27] The issue arose in the context of two arbitrations to which enterprises owned and operated on behalf of the Victorian Government were party. One of the issues of concern was the extent to which the Gas and Fuel Corporation of Victoria could make disclosure of information arising out of the arbitration to its responsible minister. [28] Mason CJ took the view that duties of confidentiality were not imposed upon the parties as an implied term of the arbitration agreement. His Honour said: … the case for an implied term must be rejected for the very reasons I have given for rejecting the view that confidentiality is an essential characteristic of a private arbitration. In the context of such an arbitration, once it is accepted that confidentiality is not such a characteristic, there can be no basis for implication as a matter of necessity. [29] As a basis for his view that confidentiality was not an “essential characteristic” of a private arbitration, Mason CJ placed weight on the following factors: Before Dolling-Baker no decision had suggested that an arbitration hearing was confidential as distinct from private. In addition, in neither Australia nor the United States could any support be found in decided cases for the existence of an obligation of confidence. Mason CJ noted that if such an obligation had formed part of the law one would have expected it to be recognised and enforced by judicial decision long before Dolling-Baker. Members of the profession with experience in arbitration had expressed different views on the question of confidentiality before the court. There were too many exceptions to the rule to be able to regard complete confidentiality of arbitral proceedings as an essential characteristic. Problems identified by Mason CJ were:



No obligation of confidence attaches to witnesses who, therefore, are at liberty to disclose to third parties what they know of the proceedings. — There are varied circumstances in which an award made in an arbitration, or the proceedings in an arbitration, could come before a court which would involve disclosure of information to the court and, in some cases, wider publication. — Other circumstances exist in which an arbitrating party must be entitled to disclose to a third party the existence and details of the proceedings and the award: for example, a party may be bound under a policy of insurance to disclose relevant information, it may be necessary to refer to the proceeding if any contingency arose which would need to be noted in accounts of an arbitrating party, or it would be necessary to disclose information to comply with statutory or other regulatory requirements (for example, stock exchange requirements for listed companies). [30] Having regard to those considerations, Mason CJ said: Despite the view taken in Dolling-Baker and subsequently by Colman J in Hassneh Insurance, I do not consider that, in Australia, having regard to the various matters to which

[page 42] I have referred, we are justified in concluding that confidentiality is an essential attribute of a private arbitration imposing an obligation on each party not to disclose the proceedings or documents and information provided in and for the purposes of the arbitration. [31] Later in his judgment, Mason CJ referred to a submission based on an implied undertaking not to disclose documents made available in an arbitration in a manner akin to the implied undertaking which arises in respect of discovered documents in court proceedings. Mason CJ agreed that where parties are compelled to discover documents in an arbitration, then the opposing party must accord them the same confidentiality that they would if they were litigating the dispute in court; but he did not consider that this principle dictated that all

information disclosed during an arbitration should remain confidential: … consistently with the principle as it applies in court proceedings, the obligation of confidentiality attaches only in relation to documents which are produced by a party compulsorily pursuant to a direction by the arbitrator. And the obligation is necessarily subject to the public’s legitimate interest in obtaining information about the affairs of public authority. The existence of this obligation does not provide a basis for the wide ranging obligation of confidentiality which the appellants seek to apply to all documents and information provided in and for the purposes of an arbitration … [32] Both Dawson and McHugh JJ agreed with Mason CJ on these points. [33] Brennan J was prepared to imply a term of confidentiality “as a matter of business efficacy” but qualified it in a similar manner to the obligation of confidentiality imposed upon a banker. The qualifications were: Where disclosure is under compulsion of law. Where there is a duty, albeit not a legal duty, to the public to disclose. Where disclosure is fairly required for the protection of the party’s legitimate interests. Where disclosure is made by the express or implied consent of the party producing the material. [34] The fifth judge, Toohey J, took the view that if there was to be no restraint on a party to an arbitration making public what was said or done at an arbitration, including the contents of documents tended to the arbitrator, there was little point in excluding strangers from the arbitration. His Honour noted: While clearly it is not possible to say that every aspect of an arbitration is confidential in every circumstance, no sharp distinction can be drawn between privacy and confidentiality in this context. They are, to a considerable extent, two sides of the same coin. The privacy of an arbitration hearing is not an end in itself; surely it exists only in order to maintain the confidentiality of the dispute which the parties have agreed to submit to arbitration. … [37] In the United Kingdom, when its Arbitration Act 1996 was passed, a deliberate decision was made not to insert a provision dealing with

confidentiality having regard to the implied duty of confidentiality not to disclose or use for any other purpose any material generated in the course of an arbitration established in Dolling-Baker v Merrett. That decision proved to be justified when, in Ali Shipping Corp v Shipyard Togir, the English Court of Appeal agreed that the duty arose as an essential corollary to the privacy of arbitral proceedings. Nevertheless, the Court of Appeal also recognised a number of exceptions to this duty: including cases where disclosure of documents received in the arbitration is made under compulsion of law, or where disclosure of an arbitral award and its reasons are necessary to safeguard the legitimate interests of one of the parties. (See: ss 27E-27I.)

[page 43] [s 2.40] disclose In relation to confidential information, this includes publishing or communicating or otherwise supplying the confidential information. This definition is not included in the Model Law. [s 2.45] Disclosure of confidential information The parties may have ongoing long-term commercial relationships and do not want disclosure of confidential information. For instance, a gas supply contract may have provision for arbitration on prices every three or five years. It may be that none of the multi-parties to the contract want disclosure of confidential information on a previous price determination. (See also the discussion in the New Zealand Law Commission Report 83, Improving the Arbitration Act 1996 at [54]–[101] on the Open Justice Issue that led to the introduction of the Arbitration Amendment Act 2007 (NZ), Public Act 2007 No 94, Date of Assent, 17 October 2007). The Amending Act incorporated the following: (i) The following definitions were introduced into s 2: confidential information, in relation to arbitral proceedings: (a) means information that relates to the arbitral proceedings or to an award made in those proceedings; and (b) includes: (i) the statement of claim, statement of defence, and all other

pleadings, submissions, statements, or other information supplied to the arbitral tribunal by a party; (ii) any evidence (whether documentary or otherwise) supplied to the arbitral tribunal; (iii) any notes made by the arbitral tribunal of oral evidence or submissions given before the arbitral tribunal; (iv) any transcript of oral evidence or submissions given before the arbitral tribunal; (v) any rulings of the arbitral tribunal; (vi) any award of the arbitral tribunal. disclose, in relation to confidential information, includes publishing or communicating or otherwise supplying the confidential information. (ii) (1) Section 2(2) is repealed. (iii) 1 New sections 14 to 14I substituted Section 14 is repealed and the following sections are substituted: 14 Application of sections 14A to 14I Except as the parties may otherwise agree in writing (whether in the arbitration agreement or otherwise), sections 14A to 14I apply to every arbitration for which the place of arbitration is, or would be, New Zealand. 14A Arbitral proceedings must be private An arbitral tribunal must conduct the arbitral proceedings in private. 14B Arbitration agreements deemed to prohibit disclosure of confidential information (1) Every arbitration agreement to which this section applies is deemed to provide that the parties and the arbitral tribunal must not disclose confidential information. (2) Subsection (1) is subject to section 14C. 14C Limits on prohibition on disclosure of confidential information in section 14B A party or an arbitral tribunal may disclose confidential information: (a) to a professional or other adviser of any of the parties; or (b) if both of the following matters apply: (i) the disclosure is necessary: (A) to ensure that a party has a full opportunity to present the party’s case, as required under Article 18 of Schedule 1;

or

[page 44] (B) for the establishment or protection of a party’s legal rights in relation to a third party; or (C) for the making and prosecution of an application to a court under this Act; and (ii) the disclosure is no more than what is reasonably required to serve any of the purposes referred to in subparagraph (i)(A) to (C); or (c) if the disclosure is in accordance with an order made, or a subpoena issued, by a court; or (d) if both of the following matters apply: (i) the disclosure is authorised or required by law (except this Act) or required by a competent regulatory body (including New Zealand Exchange Limited); and (ii) the party who, or the arbitral tribunal that, makes the disclosure provides to the other party and the arbitral tribunal or, as the case may be, the parties, written details of the disclosure (including an explanation of the reasons for the disclosure); or (e) if the disclosure is in accordance with an order made by: (i) an arbitral tribunal under section 14D; or (ii) the High court under section 14E. 14D Arbitral tribunal may allow disclosure of confidential information in certain circumstances (1) This section applies if: (a) a question arises in any arbitral proceedings as to whether confidential information should be disclosed other than as authorised under section 14C(a) to (d)); and (b) at least 1 of the parties agrees to refer that question to the arbitral tribunal concerned. (2) The arbitral tribunal, after giving each of the parties an opportunity to be heard, may make or refuse to make an order allowing all or any of the parties to disclose confidential information.

14E High Court may allow or prohibit disclosure of confidential information if arbitral proceedings have been terminated or party lodges appeal concerning confidentiality (1) The High Court may make an order allowing a party to disclose any confidential information: (a) on the application of that party, which application may be made only if the mandate of the arbitral tribunal has been terminated in accordance with Article 32 of Schedule 1; or (b) on an appeal by that party, after an order under section 14D(2) allowing that party to disclose the confidential information has been refused by an arbitral tribunal. (2) The High Court may make an order under subsection (1) only if: (a) it is satisfied, in the circumstances of the particular case, that the public interest in preserving the confidentiality of arbitral proceedings is outweighed by other considerations that render it desirable in the public interest for the confidential information to be disclosed; and (b) the disclosure is no more than what is reasonably required to serve the other considerations referred to in paragraph (a). (3) The High Court may make an order prohibiting a party (party A) from disclosing confidential information on an appeal by another party (party B) who unsuccessfully opposed an application by party A for an order under section 14D(2) allowing party A to disclose confidential information. (4) The High Court may make an order under this section only if it has given each of the parties an opportunity to be heard.

[page 45] (5) The High Court may make an order under this section: (a) unconditionally; or (b) subject to any conditions it thinks fit. (6) To avoid doubt, the High Court may, in imposing any conditions under subsection (5)(b), include a condition that the order ceases to have effect at a specified stage of the appeal proceedings. (7) The decision of the High Court under this section is final.

14F Court proceedings under Act must be conducted in public except in certain circumstances (1) A court must conduct proceedings under this Act in public unless the court makes an order that the whole or any part of the proceedings must be conducted in private. (2) A court may make an order under subsection (1): (a) on the application of any party to the proceedings; and (b) only if the court is satisfied that the public interest in having the proceedings conducted in public is outweighed by the interests of any party to the proceedings in having the whole or any part of the proceedings conducted in private. (3) If an application is made for an order under subsection (1), the fact that the application had been made, and the contents of the application, must not be made public until the application is determined. (4) In this section and sections 14G to 14I: court: (a) means any court that has jurisdiction in regard to the matter in question; and (b) includes the High Court and the Court of Appeal; but (c) does not include an arbitral tribunal. proceedings includes all matters brought before the court under this Act (for example, an application to enforce an arbitral award). 14G Applicant must state nature of, and reasons for seeking, order to conduct court proceedings in private An applicant for an order under section 14F must state in the application: (a) whether the applicant is seeking an order for the whole or part of the proceedings to be conducted in private; and (b) the applicant’s reasons for seeking the order. 14H Matters that court must consider in determining application for order to conduct court proceedings in private In determining an application for an order under section 14F, the court must consider all of the following matters: (a) the open justice principle; and (b) the privacy and confidentiality of arbitral proceedings; and

(c) any other public interest considerations; and (d) the terms of any arbitration agreement between the parties to the proceedings; and (e) the reasons stated by the applicant under section 14G(b). 14I Effect of order to conduct court proceedings in private (1) If an order is made under section 14F— (a) no person may search, inspect, or copy any file or any documents on a file in any office of the court relating to the proceedings for which the order was made; and (b) the court must not include in the court’s decision on the proceedings any particulars that could identify the parties to those proceedings. (2) An order remains in force for the period specified in the order or until it is sooner revoked by the court on the further application of any party to the proceedings.

[page 46] [s 2.50] NZ Approach meets policy considerations The NZ ss 14–14I appear to meet the conflicting policy considerations of confidentiality in arbitration and the public policy goal of openness in court proceedings on the other. These sections may provide a guide for how the Act may be amended. [s 2.55] Domestic Commercial Arbitration For further reference to this term see s 1. This definition is not included in the Model Law. [s 2.60] exercise This means to exercise a function that includes performing a duty. This definition is subject to local variation in the various states. This definition is not included in the Model Law. [s 2.65] function This includes a power, authority or duty. This definition is subject to local variation in the various states. This definition is not included in the Model Law. [s 2.70] interim measure In domestic commercial arbitration there is a need for the arbitral tribunal to have a range of powers enabling it to grant

interim measures. Interim measures are found in Pt 4A of the Act. (See: ss 17–17J. This definition is not included in the Model Law.) [s 2.75] Model Law This means the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended by the United Nations Commission on International Trade Law on 7 July 2006). This definition is not included in the Model Law. [s 2.80] party This means a party to an arbitration agreement and includes: (a) any person claiming through or under a party to the arbitration agreement; and (b) in any case where an arbitration does not involve all of the parties to the arbitration agreement, those parties to the arbitration agreement who are parties to the arbitration. The definition of “party” is based on the definitions in s 4 of the Uniform Commercial Arbitration Acts and s 2(1) of the Arbitration Act 1996 (NZ). Section 4 of the Commercial Arbitration Act 1985 (WA) in s 4 defined “party” as: “party” in relation to an arbitration agreement, includes any person claiming through or under a party to the arbitration agreement. Section 2(1) of the Arbitration Act 1996 (NZ) defined “party” as: ‘“party” means a party to an arbitration agreement, or, in any case where an arbitration does not involve all of the parties to the arbitration agreement, means a party to the arbitration’. See also, s 7(4) of the IAA. For further reading, see also ss 9 and 82(2) of the English Arbitration Act 1996 and ss 6(5)(a) and 7 of the Singapore International Arbitration Act. With respect to the phrase “claiming through or under a party”, this operates as a type of exception to the privity of contract rule. In other words, a third party to an arbitration agreement can still be viewed as a “party” to the agreement in circumstances where the courts find that there is a claim being made through a party which is a signatory to the arbitration agreement. It should also be noted that a third party to an arbitration agreement can also themselves refer a matter to arbitration if they can demonstrate they are claiming through or under another party: Tanning Research Laboratories Inc v O’Brien (the League) (1990) 169 CLR 332; 91 ALR 180; BC9002954. In Tanning Research Laboratories Inc v O’Brien, above, the following principles were stated by Brennan and Dawson JJ (with Toohey J agreeing) at

342: … the prepositions “through” and “under” convey the notion of a derivative cause of action or ground of defence, that is to say, a cause of action or ground of defence derived from the

[page 47] party. In other words, an essential element of the cause of action or defence must be or must have been vested in or exercisable by the party before the person claiming through or under the party can rely on the cause of action or ground of defence… In the same proceeding, Deane and Gaudron JJ also said (at 353): … the question whether a person is claiming through or under a party to the arbitration agreement is necessarily to be answered by reference to the subject matter in controversy rather than the formal nature of the proceedings or the precise legal character of the person initiating or defending the proceedings… In the decision of the Victorian Court of Appeal in Flint Ink NZ Ltd v Huhtamaki Australia Pty Ltd [2014] VSCA 166; BC201406644, Nettle JA set out his understanding of the principles stated in Tanning v O’Brien (at [71] and [72]): [71] … With respect, as I read Brennan and Dawson JJ’s reasons, their Honours said in terms, and so are to be understood as meaning, that a claimant may be taken as claiming “through or under” a party if an essential element of the claimant’s cause of action or defence is or has been vested in or exercisable by the party… [72] … Brennan and Dawson JJ’s reasoning is also consistent with Deane and Gaudron JJ’s conclusion that s 7(2) goes beyond proceedings in which the parties seek the same relief as might have been sought in arbitration proceedings. It has a wider operation such that the question whether a claimant is claiming through or under a party is to be answered by reference to the subject matter in controversy rather than the formal nature of the proceedings or the precise legal character of the person initiating or defending the proceedings.

Determining whether this arises requires an assessment of the circumstances of each particular case, though prior decisions would tend to suggest that the following categories of court parties to be classified as a “party” for the purposes of the CAA: a liquidator of a company (Tanning Research Laboratories Inc v O’Brien, above); an assignee of a debt (Heller Financial Services Ltd v Thiess Contractors Pty Ltd [2000] FCA 802; BC200003220); a subsidiary of a holding company that is party to an agreement (McHutchinson v Western Research and Development Ltd [2004] FCA 1234; BC200406153); or a parent company of a subsidiary company that is party to an agreement (AED Oil Ltd v Puffin FPSO Ltd (No 2) (2010) 27 VR 22; 265 ALR 415; [2010] VSCA 37; BC201001025). Interestingly in the case of Flint Ink v Huhtamaki now suggests that two parties which may be considered as “sister” companies (in the sense that neither is a subsidiary of another and merely share the same holding/parent company) may also be caught by this provision. In that case, Flint Ink NZ Ltd (Flint Ink) entered into an agreement to sell ink to Huhtamaki New Zealand Ltd (Huhtamaki NZ). The agreement contained an arbitration clause which read: Governing Law and Arbitration. This Agreement shall be governed by and construed in accordance with the laws of New Zealand. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof shall be finally settled by arbitration in accordance with the [New Zealand] Arbitration Act 1996. Huhtamaki NZ then used the ink supplied by Flint Ink to manufacture packaging which it then supplied to Huhtamaki Australia Pty Ltd (Huhtamaki Australia). Both Huhtamaki companies were part of the same corporate group and under the same holding company, though neither were parent or subsidiary company of one another. Huhtamaki Australia then supplied defective packaging to Lion-Dairy & Drinks Pty Ltd, which led to a recall of yoghurt product and proceedings being commenced in the Supreme Court of

[page 48]

Victoria against Huhtamaki Australia. Huhtamaki in turn filed a third party notice against Flint Ink alleging negligence with respect to the ink supplied by Flint Ink. Flint Ink then made an application to stay the third party proceedings on the basis of the arbitration agreement it had with Huhtamaki NZ, and arguing that Huhtamaki Australia’s third party proceeding against it was a claim “through or under” Huhtamaki NZ. At first instance (Lion-Dairy & Drinks Pty Ltd (Formerly National Foods Ltd) v Huhtamaki Australia Pty Ltd [2013] VSC 555; BC201314778) Vickery J refused Flint Ink’s application to stay a third party proceeding brought against it by Huhtamaki Australia. His Honour found that the arbitration agreement between Flint Ink and Huhtamaki NZ was not binding on Huhtamaki Australia and that there was no agreement existing between Huhtamaki Australia and Flint Ink to submit their dispute to arbitration. In analysing s 7(4) of the IAA, Vickery J was not satisfied of a sufficient proximity between Huhtamaki Australia and Huhtamaki NZ, or that Huhtamaki Australia was claiming “through or under” Huhtamaki NZ. In this regard, the following factors were noted: the companies did not share a parent or subsidiary relationship; there was no evidence that one company habitually acted at the behest of the other; and the highest it was put in oral argument was that the companies were two “sister” entities, but there was no evidence as to the details of that relationship. On appeal, the Victorian Court of Appeal unanimously reversed Vickery J’s judgment, though their Honours (Warren CJ, Nettle and Mandie JJA) provided separate written reasons for their decisions: Flint Ink NZ Ltd v Huhtamaki Australia Pty Ltd [2014] VSCA 166; BC201406644. Nettle JA concluded at [74]: [74] It follows in my view that Huhtamaki Australia is claiming through or under Huhtamaki NZ in the sense identified in Tanning. In terms of the test propounded by Brennan and Dawson JJ in Tanning, Huhtamaki Australia is so claiming because essential elements of its cause of action against Flint Ink are that Flint Ink breached its agreement with Huhtamaki NZ or breached a duty of care to Huhtamaki NZ which is alleged to have arisen out of the agreement. Equally, in terms of the test favoured by Deane and Gaudron JJ, Huhtamaki Australia is claiming through or under Huhtamaki NZ because the matter principally in controversy between Huhtamaki Australia and Flint Ink is

whether Flint Ink breached its agreement with Huhtamaki NZ or breached its alleged duty of care to Huhtamaki NZ… Mandie JA similarly reached the same conclusions as those of Warren CJ and Nettle JA, and concluded at [148]: [148] It is clear from the foregoing that any liability of Flint Ink to Huhtamaki Australia is almost entirely, if not entirely, dependent on the facts pleaded in relation to Huhtamaki NZ. Although it is pleaded that Flint Ink owed a duty of care to Huhtamaki Australia the pleading does not make it apparent as to how that duty of care arose other than by virtue of the fact that Huhtamaki Australia and Huhtamaki NZ were part of the same “group” of companies. In those circumstances, it seems to me that Huhtamaki Australia’s cause of action is a derivative one in the sense referred to in Tanning and that the claim of Huhtamaki Australia is being made “through or under” Huhtamaki NZ. In those circumstances too, I consider that essential elements of the cause of action, having regard to the way the matter is pleaded, are “vested in” Huhtamaki NZ in the sense referred to by Brennan and Dawson JJ in Tanning. Warren CJ also found that the essence of Huhtamaki Australia’s claim against Flint only arose from the agreement between Flint Ink and Huhtamaki NZ. Her Honour concluded at [26] that in respect of the allegation of breach, Huhtamaki Australia stands in the same position vis-à-vis Flint Ink as does Huhtamaki NZ. See also BHPB Freight Pty Ltd v Costco Oceania Chartering Pty Ltd (2008) 168 FCR 169; 247 ALR 369; [2008] FCA 551; BC200802869 where in the context of a claim brought against shipbrokers arising from an alleged breach of an agreement relating to the charter of a cargo vessel, Finkelstein J observed (at [10] and [15]):

[page 49] [10] The first question that arises is whether Cosco can invoke s 7. According to s 7(2) there must be a proceeding by one party to an arbitration agreement against another party to the agreement. And then only “a party to the [arbitration] agreement” may apply for a stay of curial proceedings brought in defiance of that agreement and obtain an order referring the dispute or part of the dispute to arbitration. It is common ground that Cosco is not a party to the

charterparty or to clause 42 in the sense that it is not, as a matter of contract law, a person who is bound by the charterparty generally, or clause 42 in particular. Cosco says, however, that it is deemed to be party, relying on s 7(4). [15] … there are two somewhat overlapping criteria that must be met to trigger the operation of s 7(4). The first is that there is a relationship of sufficient proximity between the party to the arbitration agreement and the person claiming to prosecute or defend an action through or under that party. The second is that the claim or defence is derived from the party to the arbitration agreement. See also KNM Process Systems SDN BHD v Mission Newenergy Ltd formerly known as Mission Biofuels Ltd [2014] WASC 437; BC201411561. Note the decision of Bergin CJ in Eq in Nearmap Ltd v Spookfish Pty Ltd [2014] NSWSC 1790; BC201410719 where Her Honour said (at [46]) that the status of a party’s relationship with another is not determinative of the issue. Rather, the party must be proven to have derived their claim or defence through the other party. [s 2.85] the court This refers to the Supreme Court unless the parties have in their arbitration agreement specified a lower court such as the District/County Court (depending on the jurisdiction) or the Magistrates’ Court (see s 6(2)). In practice most arbitration agreements refer to the Supreme Court. (See: Subway Systems Australia Pty Ltd v Ireland [2013] VSC 550 per Croft J.) and Subway Systems Australia Pty Ltd v Ireland [2014] VSCA 142 (See: ss 6 and 8, particularly at [s 8.15B]). [s 2.90] Parties can authorise a third party to make a determination Subsection (2) authorises the parties to determine a certain issue including the power to authorise a third party, including an institution to make that determination. For instance, the parties can authorise an arbitral tribunal to determine the requirements of the receipt of written communications (s 3). [s 2.95] Editorial notes Subsection (5) isn’t necessary in some jurisdictions. See for example, s 14(7) of the Acts Interpretation Act 1954 (Qld) but is included consistently with [6.14] of the Protocol on Drafting National Uniform Legislation. This subsection is not included in the Model Law. [s 2.100] Heading of Section of Act not part of Act

Subsection (6) was

proposed to give effect to the first note to Art 1 of the Model Law. It is included as occasionally practitioners need reminding that the Heading is not part of the Act.

International origin and general principles 2A (cf Model Law Art 2A)

(1) Subject to section 1AC, in the interpretation of this Act, regard is to be had to the need to promote so far as practicable uniformity between the application of this Act to domestic commercial arbitrations and the application of the provisions of the Model Law (as given effect by the International Arbitration Act 1974 of the Commonwealth) to international commercial arbitrations and the observance of good faith. (2) [omitted] [page 50] (3) Without limiting subsection (1), in interpreting this Act, reference may be made to the documents relating to the Model Law of— (a) the United Nations Commission on International Trade Law; and (b) its working groups for the preparation of the Model Law. (4) Subsection (3) does not affect the application of section 35 of the Interpretation of Legislation Act 1984 for the purposes of interpreting this Act. Note This section differs from the Model Law. Art 2A(1) has been changed as a consequence of the application of the Act to domestic (instead of international) commercial arbitrations. Art 2A(2) is omitted because it is covered by the provision referred to in section 1AC(4). Subsections (3) and(4) reflect section 17 of the International Commercial Arbitration Act 1974 of the Commonwealth.

ANNOTATIONS [s 2A.5] International origin and general principles

Section 2A(1) of the

Act differs from Art 2A(1) of the Model Law on the basis that the Act applies to domestic (instead of international) commercial arbitrations. While this provision differs from the Model Law, it nonetheless emphasises and promotes the importance of uniformity in the interpretation and application of the provisions under the Act and the provisions of the Model Law under the IAA. By expressly requiring the need for uniformity and consistency in the interpretation and application of the provisions of the Act with the Model Law through the International Arbitration Act 1974 (Cth), the body of arbitral jurisprudence on the Model Law is able to develop and grow both domestically and internationally. In Hancock v Rinehart (2013) 96 ACSR 76; [2013] NSWSC 1352; BC201312930 at [84], Bergin CJ in Eq, interpreting s 8 of the NSWCommercial Arbitration Act said: In interpreting s 8(1) of the 2012 Act, it is necessary to have regard to the need to promote as far as practicable uniformity between the application of the Act to domestic commercial arbitrations and the application of the provisions of the Model Law (the UNCITRAL Model Law on International Commercial Arbitration) and to the observance of good faith: s 2A(1). In this regard s 8(1) is materially similar to article 8(1) of the Model Law that is given the force of law in Australia by s 16(1) of the International Arbitration Act 1974 (Cth): Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 at 97 [197] per Allsop J, as the Chief Justice was then, with whom Finn and Finkelstein JJ agreed. Note: Subsection (2) is omitted because it is covered by the provision referred to in s 1AC(4). Subsections (3) and (4) reflect s 17 of the International Arbitration Act 1974 (Cth). [s 2A.10] Use of extrinsic materials In order to promote the uniform and consistent interpretation and application of the provisions under the Act, s 2A(3) provides that regard may be had to the extrinsic materials relating to the Model Law. Reference may be had to the extrinsic material from the UNCITRAL and its Working Groups involved in the preparation and development of the Model Law. This has been included in s (3)(a) (UNCITRAL) and (b) (the UNCITRAL Working Groups for the preparation of the law and any amendments to it) consistently with s 17 of the International Arbitration Act 1974 (Cth).

Receipt of written communications 3 (cf Model Law Art 3)

(1) Unless otherwise agreed by the parties— (a) any written communication is taken to be received if— [page 51] (i) it is delivered to the addressee personally; or (ii) it is delivered at the addressee’s place of business, habitual residence or mailing address; or (iii) if none of these can be found after making a reasonable inquiry, it is delivered to the addressee’s last-known place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it; and (b) the communication is taken to have been received on the day it is so delivered. (2) The provisions of this section do not apply to communications in court proceedings.

ANNOTATIONS [s 3.5] Receipt of written communication This section adopts Art 3 of the Model Law. This provision has two purposes. First, the provision prescribes the ways that a written communication can be sent. A written communication may be delivered to the addressee personally (for example, by personal service), delivered to the addressee’s place of business, habitual residence or mailing address, or otherwise delivered to the addressee’s last known place of business, habitual residence or mailing address if reasonable attempts have been made determine the addressee’s place of business, habitual residence or mailing address. If written correspondence is sent to the addressee’s last known address, the correspondence must be sent by registered mail or by a means which records an attempt to deliver the written correspondence. Second, the provision provides the time within which a written

communication is deemed or taken to have been received by the addressee of the communication. If the written communication is sent by one of the three means provided for in the provision, the communication is taken to have been received on the day it is delivered. The onus is on the party receiving the communication to act, or orders can be made against their interest. In Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd (2011) 277 ALR 415; [2011] FCA 131, the Federal Court of Australia determined that there was no obligation on a sender of a letter sent by email and registered post to take steps to ensure the recipient actually received the email correspondence. The critical test is whether the correspondence arrives at the recipient’s address. [s 3.10] Unless otherwise agreed Importantly, this provision is not a mandatory provision. The parties to the arbitration can agree to opt-out of the provision (by virtue of the words “unless otherwise agreed”). This enables the parties to choose an alternative procedure to govern the sending and receipt of written communications. Accordingly, the parties may agree to adopt a set of arbitration rules which govern the service of written communication (by virtue of s 2(2), see [s 2.85]) above, or agree to have an arbitral body decide when service of communications has occurred. The parties may also agree to their own procedure between themselves, without reference to a set of arbitration rules. [s 3.15] If parties agree to different arbitration rules If the parties agree to adopt a set of arbitration rules to apply to the arbitration dispute, the arbitration rules are likely to govern the rules in relation to the service and notice of service of written communications. For example, the UNCITRAL Arbitration Rules (UNCITRAL Rules), the Australian Centre for International Arbitration (ACICA Rules) and the London court of International Arbitration (LCIA Rules) each proscribe rules in relation to the service and notice of service of communications. The UNCITRAL and ACICA Rules follow the Model Law, whereas the LCIA Rules are more prescriptive. Before agreeing to adopt a set of arbitration rules, the provisions in relation to the service of written communications and the calculation of time for service of written communications should be considered by a party to an arbitration. The Rules of arbitral institutions on the topic of service of communications should be added to a check-list when considering the adoption of Rules other than those under this Act.

[page 52]

[s 3.20] Court proceedings not bound by section Subsection (2) confirms that a court is not bound by this section with respect to communications in court proceedings. Thus court rules in this respect would not be affected by these provisions.

Waiver of right to object 4 (cf Model Law Art 4)

Aparty who knows that any provision of this Act from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating the party’s objection to such non-compliance without undue delay or, if a time-limit is provided for stating the party’s objection, within such period of time, is taken to have waived the party’s right to object.

ANNOTATIONS This provision mandates that any objection to the failure of a party or parties to comply with a procedural requirement must be stated “without undue delay”. If a party or parties fails to make an objection “without undue delay”, then that party or parties waive their right to object to the non-compliance. [s 4.5] Without undue delay The meaning of the term “without undue delay” is central to determining the period within which an objection can be made, and when a party will lose their right to object. The Act (and the Model Law) does not impose a specific and unambiguous time period within which the objection must be made. Rather, the imprecision of the term “without undue delay” avoids problems that would arise if a bright-line or more precise test were used. The time period within which the objection must be made will depend on the nature of the procedural breach and the overall facts and circumstances of the case. [s 4.10] Conditions precedent needed before a party is deemed to have waived their right to object There are four conditions precedent prescribed in this provision (and which are also found in Art 4(1) of the Model Law) which must be complied with before a waiver of right to object. The conditions

precedent are: 1. a provision of the Act that has not been complied with is not a mandatory requirement; 2. the party knew or ought to have known of the non-compliance; 3. the objection has not been stated “without undue delay”; and 4. the party proceeds with the arbitration without stating their objection to the non-compliance of the provision within the time limit allowed for stating a party’s objection. [s 4.15] Court not bound merely by timeliness of objection or arbitration proceeding A court in considering the timeliness of an objection must consider this aspect of these provisions in the contents of their other elements. In other words the mere fact that an objection had not been made within a prescribed time-limit would not have consequences without relevant knowledge having been established. The same applies with respect to a party proceeding with the arbitration

Extent of court intervention 5 (cf Model Law Art 5)

In matters governed by this Act, no court must intervene except where so provided by this Act. [page 53]

ANNOTATIONS [s 5.5] General or residual power of court to intervene This provision mandates that there be no intervention by a court in relation to “matters governed by the Act” except in the limited circumstances prescribed by the Act. This is one of the major achievements of the Uniform Arbitration Acts and the reforms of the Model Law. The willingness and ease to which courts intervened in the predecessor to this Act the Uniform Arbitration Acts generally, negated the power and effectiveness of arbitration. This provision therefore provides

more certainty to parties choosing to resolve disputes under the Act by the knowledge that the court’s ability to intervene is limited to the extent provided for by the Act. However, while many courts recognise the growing need to promote arbitration, its jurisdiction to oversee the arbitral process and its inherent jurisdiction to administer justice cannot be ousted wholly (as to the inherent jurisdiction, see State of Victoria v Seal Rocks Victoria (Australia) Pty Ltd (2001) 3 VR 1; (2002) 18 BCL 148; [2001] VSCA 94; BC200103193; (CA); and Arnwell Pty Ltd v Teilaboot Pty Ltd [2010] VSC 123; BC201002119 (Croft J)). The extent to which the Act limits the court’s jurisdiction to intervene in the arbitral process may yet be the subject to debate and conjecture but the approach of the Australian courts in more recent decisions on the Model Law provisions, and more generally, is supportive of arbitration and its processes; with an emphasis on court assistance rather than court intervention (see, for example, Thoroughvision Pty Ltd v Sky Channel Pty Ltd [2010] VSC 139; BC201002353 (Croft J); Gujerat NRE Coke Ltd v Coeclerici Asia (Pte) Ltd (2013) 304 ALR 468; [2013] FCAFC 109; BC201313301). As the Act proscribes that the court cannot intervene in “matters governed by the Act” (except where otherwise provided), the question which may arise for parties seeking judicial assistance is whether the particular matter is in fact governed by the Act. While it might be straightforward to look to the provisions of the Act and identify the matters expressly governed by the Act, there may be other issues which arise at different stages during the arbitral process which are not matters expressly governed by the Act. [s 5.10] Functions conferred on the court in regard to domestic commercial arbitrations Several sections of the Act confer power on the courts to intervene in or otherwise assist domestic commercial arbitrations under the Act. These sections are: 1. Section 6 of the Act provides that the court may make orders to enable the arbitral process to function, and to provide arbitration assistance and supervision; 2. Section 8 of the Act provides that the court can make orders in relation to the arbitration agreement and the substantive claim before court. This also includes the ability of a court to order a stay of arbitral proceedings; 3. Section 9 of the Act indicates that it is not incompatible with an

arbitration agreement for a party to request before or during the arbitration for interim measures to be granted by the court and for the Court to grant interim relief; 4. Section 36 of the Act provides grounds for refusing recognition or enforcement. The above sections will be discussed in the annotations following each of the sections.

Court for certain functions of arbitration assistance and supervision 6 (cf Model Law Art 6)

(1) The functions referred to in sections 11(3) and sections 11(4), sections 13(4), sections 14(2), sections 16(9), sections 17H, sections 17I, sections 17J, sections 19(6), sections 27, sections 27A, sections 27B, sections 27H, sections 27I, sections 27J, sections 33D, sections 34 and sections 34A are, subject to subsection (2), to be performed by the Supreme Court. [page 54] (2) If— (a) an arbitration agreement provides that the County Court or the Magistrates’ Court is to have jurisdiction under this Act; or (b) the parties to an arbitration agreement have agreed in writing that the County Court or the Magistrates’ Court is to have jurisdiction under this Act and that agreement is in force— the functions are to be performed, in relation to that agreement, by the County Court or the Magistrates’ Court, as the case requires. Note This section differs from the Model Law to the extent that it relates to functions conferred on the Court with respect to domestic arbitrations that are not referred to in the Model Law.

ANNOTATIONS [s 6.5] Court for certain functions The Model Law Art 6 provides for certain functions referred to in various articles shall be performed by the state courts enacting the Model Law. (See: Subway Systems Australia Pty Ltd v Ireland [2013] VSC 550 (Croft J) and Subway Systems Australia Pty Ltd v Ireland [2014] VSCA 142) (See: ss 6 and 8.) [s 6.10] Supreme Courts In subs (1) the following functions have been regarded as sufficiently complex to warrant allocation to the Supreme Court: 1. Article 11(3): the parties failing to reach an agreement on the appointment of arbitrators; 2. Article 11(4): appointment procedure for securing the appointment of an arbitrator or arbitrators; 3. Article 13(3): challenge procedure; 4. Article 14: failure or impossibility to act; 5. Article 16(3): arbitral tribunal ruling on whether it has jurisdiction; 6. Article 34(2): the setting aside of an arbitral award. [s 6.15] Functions allocated to District or Local Courts The parties may either in the arbitration agreement or where parties to an arbitration agreement have agreed in writing certain functions are to be performed by the District Court or the Local or Magistrates’ Court.

PART 2 — ARBITRATION AGREEMENT

Definition and form of arbitration agreement 7 (cf Model Law Art 7)

(1) An arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

(3) The arbitration agreement must be in writing. (4) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means. (5) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained in it is accessible so as to be useable for subsequent reference. [page 55] (6) In this section— data message means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy; electronic communication means any communication that the parties make by means of data messages. (7) Furthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other. (8) The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract. Note This section is substantially the same as Option 1 set out in Art 7 of the Model Law.

ANNOTATIONS [s 7.5] arbitration agreement The definition of “arbitration agreement” has changed over time. Option I in Art 7 of the Model Law, that requires the arbitration agreement to be in writing, was adopted by the Commission at its 39th session in 2006. Option II also adopted in 2006 states: “Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in

respect of a defined legal relationship, whether contractual or not. In the International Arbitration Act 1974 (Cth) and in the State Commercial Arbitration Acts Option I has been adopted. In the Commercial Arbitration Act 1985 (WA) s 4 “arbitration agreement” was defined to mean an agreement in writing to refer present or future disputes to arbitration. Arbitration should be distinguished from an expert determination. (See: Age Old Builders Pty Ltd v Swintons Pty Ltd (2003) 20 VAR 200; [2003] VSC 307 at [s 8.25].) In considering whether a dispute has been referred to arbitration, the existence of an arbitration agreement must first be established, and then the identity of the parties. [s 7.10] “a defined legal relationship, whether contractual or not” These words are the additional words found in this Act. The legal relationship does not have to be contractual although most arbitrations involve contractual relationships. Non-contractual claims that may fall within the expanded definition of “arbitration agreement” include claims in: quantum meruit (Pavey Matthews Pty Ltd v Paul (1987) 162 CLR 221; 69 ALR 577); restrictive trade practices claims. (See: Competition and Consumer Act 2010 (Cth), Pt IV and Sch 2) and claims “arising out of” or “in connection with” (see Comandante Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 at 90–1; 238 ALR 457 but probably not claims “arising under” (Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1993) 116 ALR 163; claims in tort. See also Mustill and Boyd Commercial Arbitration, 2nd ed, Sweet & Maxwell, 1989, p 117; but Australian cases differ. See also cases referred to in O’ Connor v LEAW Pty Ltd (formerly known as Mal-Corp Pty Ltd) (1997) 42 NSWLR 285; Kaverit Steel and Crane v Kone Corp (1992) 87 DLR (4th) 129. The cases indicate that there must be a close relationship between the contract and the claim.) [s 7.15] Sufficient if parties bind themselves to have dispute arbitrated In PMT Partners Pty Ltd v Australian National Parks and Wildlife Service (1995) 184 CLR 301; 131 ALR 377 the majority, Brennan CJ, Gaudron and McHugh JJ held, at CLR 310, that:

[page 56]

The words “agreement … to refer present or future disputes to arbitration” in s 4 of the Act are, in their natural and ordinary meaning, quite wide enough to encompass agreements by which the parties are bound to have their dispute arbitrated if an election is made or some event occurs or some condition is satisfied, even if only one party has the right to elect or is in a position to control the event or satisfy the condition. Toohey and Gummow JJ, at 323, stated: [T]he terms of the definition of “arbitration agreement” in s 4 of the Act extend to an agreement whereby the parties are obliged if an election is made, particular event occurs, step is taken or condition is satisfied (whether by either or both parties) to have their dispute referred to arbitration. This result is within the ordinary and natural meaning of the terms of the definition and three is no sufficient reason to cut down that meaning. All that is necessary is that if the parties agree to have an unsatisfied claim resolved by arbitration then this is sufficient to come within the meaning of an arbitration agreement in s 4, even if only one party is given a unilateral or conditional right or election to call for arbitration. [s 7.20] Option to pursue litigation or arbitration Applying the above principles, a clause equally favouring a right to litigation and arbitration would be an “arbitration agreement”. It is possible that it may be held that the agreement lacks a certainty that the parties must arbitrate rather than litigate. (See Mulgrave Central Mill v Hagglunds Drives [2002] 2 Qd R 514 at 525 per McPherson JA and at 535 per Thomas JA dissenting. [s 7.25] Separability of “arbitration agreement” In considering its jurisdiction the arbitral tribunal under the doctrine of separability, considers the arbitration agreement and the terms of the underlying contract as separately concluded contracts. In the absence of a contrary intention in the language used by the parties, arbitration agreements survive the termination of the underlying contract: see Ferris v Plaister (1994) 34 NSWLR 474; 11 BCL 417; BC9404937; Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 43 WAR 91; 287 ALR 315; [2012] WASCA 50; BC201201101 at [165]; Pipeline Services WA Pty Ltd v ATCO Gas Australia Pty Ltd [2014] WASC 10; BC201410690 at [42]–[53]; and Nearmap Ltd v Spookfish Pty Ltd [2014] NSWSC 1790; BC201410719 at [33]. (See: J Delaney and K Lewis, “Forum: The Presumptive Approach to the

Construction of Arbitration Agreements”, (2008) 31(1) University of New South Wales Law Journal 341; Lord Hoffman in Fiona Trust & Holding Corporation v Privalov [2007] 4 All ER 951 applying s 7 of the Arbitration Act 1996 (UK.) The introduction of the equivalent of s 7 of the UK Act in s 16 of this Act may result in a presumptive approach to construction. [s 7.30] Subsection (2) The arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. Parties to a contract should, before entering into the contract, take considerable care over the content of the arbitration clause in the contract. A failure to do so may rebound on them when the inevitable dispute arises “under” or “arising out of” or “in connection with” the contract. (See: [s 7.10] above). In John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451; BC201502956, it was noted (at [69]): [69] The courts have repeatedly held that words such as “arising out of”, “arising under”, “in connection with” or “connected with” have a wide ambit and that when commercial parties choose a forum for the resolution of disputes which may arise between them, such provisions should be liberally construed so as to further their ultimate intent, namely, that their disputes should be susceptible to the forum which they have chosen; see Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; 131 FLR 422; (1996) ATPR 41-489; BC9601669; IBM Australia Ltd v National Distribution Services Pty Ltd (1991) 22 NSWLR 466; 100 ALR 361; 20 IPR 95; (1991) ATPR 41-094.

[page 57] See also paragraph [s 8.5]. This issue arose in Rinehart v Welker [2012] NSWCA 95 (Bathurst CJ, McColl and Young JJA) the appellant Gina Hope Reinhart (GHR) was the trustee of a trust created by a deed of settlement dated 27 December 1988 by Langley George Hancock the principal assets of the trust were shares in a company Hancock Prospecting Pty Ltd (HPPL). The trust deed provided that on the death of Mr Hancock, GHR became absolutely entitled to a proportion of the shares in HPPL, which constituted part of the trust fund. The balance of the shares in the fund were to be held by the trustee on trust until the date on which

the youngest of the surviving children of GHR attained 25 years, described as the vesting date, thereafter the shares were to be held by the trustee on trust for the survivors as tenants in common in equal shares. The trust deed was amended by a deed of amendment dated 24 August 1995. The only significant amendment for the purposes of the case was the insertion in cl 7H, a “Governing Law” clause providing that the trust deed and the trust were governed by the laws of Western Australia, but also sought to exclude the operation of certain provisions of the Trustee Act 1962 (WA). In 2005 disputes had arisen between various parties to the trust deed. In resolution of these disputes the parties entered into a deed described as a “Deed of Obligation and the Release”. Further disputes arose between the parties leading to the execution of a settlement deed in August 2006, the construction of which was the subject of the proceedings before the NSW Supreme Court. Clause 1.1 defined “Claim” to mean “(a) any claim, demand, action, suit or proceeding whether existing or discontinued, whether at law or under statute, in equity or otherwise”. Clause 20 of the settlement deed is titled “Confidential Mediation /Arbitration” and states “In the event that that there is any dispute under this deed then any party” can notify the other parties to the deed and seek to resolve such difference by “Confidential Mediation” or “Confidential Arbitration”. The confidential arbitration was to be pursuant to the WA Commercial Arbitration Act. In September 2011 further disputes between the parties led to the filing of a summons in respect of GHR’s conduct as trustee of the Trust. This resulted in GHR and one of her daughters as defendants opposed to the remaining two daughters and her son. An amended summons sought removal of GHR as trustee as a result of misconduct, an accounting and the splitting of the trust fund and the appointing of the children applicants as trustees of the fund. Applications were made by GHR and her supporting daughter Ginia Hope Frances Rinehart (GHFR) that the proceedings be stayed and the parties be required to resolve their dispute under cl 20 by confidential mediation and arbitration. On 7 October 2011 Brereton J dismissed the motions for stay of proceedings in Welker v Rinehart (No 2) [2011] NSWSC 1238. Application was made for leave to appeal and hearing of the appeal. At the outset of the appeal hearing, the court indicated without objection from the parties, that leave would be granted. The primary judge concluded, at [27], that it was necessary to focus on whether, “for the purposes of these proceedings, the plaintiffs have a dispute “under this deed” with any other party” (emphasis in original). His Honour held that the words “under this deed” are of narrower scope than phrases such as

“with respect to” or “in respect of”, relying in particular on the judgment of French J, as his Honour then was, in Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1993) 43 FCR 439; [1993] FCA 346. He said in those circumstances the dispute must derive from or depend on the settlement deed, or involve enforcing or invoking some right created by the settlement deed. It was not enough, in the view of the primary judge, that the settlement deed may in some way impact on the rights of the respondents to bring their claims forward constitute a defence to those claims. This approach was challenged on appeal. GHR submitted that the distinction between the expressions “under this Deed” and expressions such as “with respect to” or “in respect of” had been expressly abandoned by the House of Lords in Fiona Trust & Holding Corporation v Privalov [2007] 4 All ER 951; [2007] UKHL 40, in which Lord Hoffmann said that there should be a “fresh start” in the construction of arbitration clauses and that they should be construed with a presumption that the parties did not intend their disputes to be dealt with in two separate tribunals. The Fiona Trust Corporation case was followed in Lipman Pty Ltd v Emergency Services Superannuation Board [2011] NSWCA 163 at [6]. (See:

[page 58] Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165 per Gleeson CJ; Global Partners Fund Ltd v Babcock & Brown Ltd (In liq) (2010) 79 ASCR 383; [2010] NSWCA 196; Comandate Marine Corp v Pan Australian Shipping Pty Ltd (2006) 157 FCR 45 at 164 per Allsop J; [2006] FCAFC 192; Finn and Finkelstein JJ agreed.) In regard to the construction and scope of cl 20 of the settlement deed, Bathurst CJ (with whom McColl and Young JJA agreed) at [115] followed the principle stated by the High court in Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd (2004) 219 CLR 165; 211 ALR 342; [2004] HCA 52 at [40]: … What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration

not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction. The court was not entitled to disregard clear and unambiguous language used by the parties to produce results which the surrounding circumstances may indicate a more commercial or business-like: Western Export Services Inc v Jireh International Pty Ltd (2011) 282 ALR 604; [2011] HCA 45. Resort may only be had to surrounding circumstances where the words in question exhibit uncertainty or ambiguity: Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352; 41 ALR 367. Although the “court should, however, construe the contract giving meaning to the words chosen by the parties and giving liberal width and flexibility to elastic and general words of the contractual submission to arbitration”. (See: Comandate Marine Corp v Pan Australian Shipping Pty Ltd (2006) 157 FCR 45 at 164 per Allsop J (Finn and Finkelstein agreeing). That is not to say that the words of the clause can be given a meaning they do not have to satisfy a perceived commercial purpose. Such an approach would be inconsistent with the approach to construction of contracts. As stated by French J in Paper Products at 444, the scope of the dispute covered by an arbitration clause must depend on the language of the clause. (See in addition to cases cited above: Allsop J in Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005] FCA 1102 at [41]–[42]). In Rinehart v Welker [2012] NSWCA 95 Bathurst CJ stated at [120]–[121]: [120] Rather, the words of an arbitration clause should be, to the extent possible, consistent with the ordinary meaning of the words, liberally construed. [121] It follows this “that it is not appropriate for this court to adopt what Lord Hoffman described in Fiona Corporation at [12] as a “fresh start” and construe clauses irrespective of the language in accordance with the presumption that the parties are likely to have intended any dispute arising out of the relationship into which they have entered to be decided by the same tribunal unless the language makes it clear certain questions were intended to be excluded: Fiona Corporation, above, at [13]. While the presumption that parties intended the same tribunal to resolve their disputes may justify a liberal approach consistent with the plain meaning of the words in question, the approach suggested by Lord Hoffman is contrary in my opinion, to the approach laid down by the High court as to the construction of commercial contracts”.

Accordingly, the court was not able to agree with the approach adopted by the Court of Appeal in Western Australia in Paharpur Cooling Towers Ltd v Paramount (WA) Ltd [2007] WASC 234 to the extent the court was suggesting a particular rule of construction be applied irrespective of the plain meaning of the words. Bathurst CJ stated, at [123], that: … the phrase “under this deed” has consistently been given a narrower construction than phrases such as “arising out of the deed” or “in connection with the deed” (Samick Lines Co

[page 59] Ltd v Owners of the Antonis P Lemos [1985] AC 711 at 727 per Lord Brandon. In Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1993) 43 FCR 439; [1993] FCA 346 the meaning of the phrase “any dispute between the parties hereto arising under this agreement” was considered by French J (as his Honour then was) stated at 448: … When, as here, the parties have agreed upon a restricted form of words which in their terms, and as construed in the courts, limit the reference to matters arising ex contractu, there is little room for movement. In BTR Engineering (Australia) Ltd v Dana Corp [2000] VSC 246, Warren J (as Her Honour then was) interpreted the word “under” to mean “governed, controlled or bound by; in accordance with”, at [27]. A similar construction was given to the word by Hargrave J in TCL Airconditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2009] VSC 553 at [34], His Honour describing himself as “adopting a broad meaning”. In that case, Hargrave J also held that where the words of the arbitration clause are sufficiently elastic and general, or capable of a broad and inflexible meaning, they should be given a liberal construction (at [10]–[14]). The primary judge took the view that the words “under this deed” involved enforcing or invoking some right created by the settlement deed. Bathurst CJ found this consistent with the authorities to which he had referred. If the outcome of the dispute was governed or controlled by the settlement deed then

there would be a dispute under the settlement deed irrespective of whether the claim was invoking or enforcing some right created by the settlement deed. This is what Bathurst CJ understood the primary judge to be referring to when he stated that the dispute must derive from or depend on the settlement deed. The respondents in their statement of claim were seeking orders against GHR to provide information concerning the trust relying on their entitlement as beneficiaries and other orders none of which involved invoking or enforcing any rights created by the settlement deed nor was their outcome generated or controlled by the settlement deed. GHR contended that it was not open to the respondents to pursue their claims made by virtue of the provisions of the settlement deed, then the whole dispute was a dispute under the settlement deed. Bathurst CJ did not find the analogy raised by GHR with the expressions “under this Constitution” or “under any laws made by the Parliament” provided any assistance in the present case. The defences filed by the respondents raise disputes under the settlement deed as they rely on the provisions of the deed in answer to the respondents’ claims. The defences will not necessarily determine the outcome of the proceedings. On examination the pleadings on their face do not demonstrate that the claims of the respondents will be governed or controlled by the settlement deed. Bathurst CJ held that the primary judge was entitled to examine the claim from the view as to whether he could properly conclude, in the light of the evidence available, that the assertion that the claim was barred by the settlement deed was sustainable. It was also relevant to look at the strength of that assertion to determine whether as a matter of discretion, a stay of the whole or part of the proceeding should be granted. The definition of “claim” in cl 1 of the deed is limited to claims existing or discontinued or claims which were in existence at the time the settlement deed was entered into. Bathurst CJ found that the settlement deed does not govern or control the outcome of the claims made by the respondents and that Brereton J was correct to the extent that he found that the defences raised under the settlement deed were part of a larger the dispute. The subsequent filing of the defences raised the question: Whether these defences should influence the court’s exercise of its discretion to stay the whole or any part of the proceedings? Bathurst CJ held that there was no wrongful exercise of discretion by the primary judge and that he would have reached the same conclusion. The respondents claim was not a dispute under the settlement deed. The settlement deed did not have the effect of barring any claim for the removal of the trustee and that other defences although arising under the settlement deed, did not

necessarily bar a claim for removal of GHR as trustee. Once it was established that the claim for removal of the trustee did not arise under the settlement deed this court has no power to refer the

[page 60] claim to arbitration. The court had two alternatives; to stay the proceedings pending determination of the issues raised by the defences or to refuse the stay. The Chief Justice held that it was inappropriate to stay the proceedings as it would not be a proper exercise of discretion to deny a beneficiary the right to approach the court in respect of alleged misconduct of a trustee where the issue in question was not covered by the arbitration clause. Bathurst CJ concluded at [192] that the primary judge was correct in refusing a stay. [s 7.35] Subsection (3) The arbitration agreement must be in writing. Oral arbitration agreements may be determined under the common law but not under this Act. Mustill and Boyd, in the leading text Commercial Arbitration, 2nd ed, Butterworths, 1989, p 6 states: English law prescribes no formal requirements for a valid arbitration agreement. It need not even be in writing. An oral arbitration agreement, if followed by completed arbitration proceedings, can be the foundations of an enforceable award, although the agreement will not be an “arbitration agreement” for the purpose of the Arbitration Acts and the proceedings will not be subject to the important processes of the court to provide support and supervision which those Acts confer. In D St John Sutton, J Gill and M Gearing, Russell on Arbitration, 23rd ed, Sweet & Maxwell, 2007, at [2-015] the learned authors, when referring to the English legislation, (references omitted) state: An oral agreement to arbitrate, sometimes known as a parol submission, is valid as a matter of English law but are not subject to the provisions of the Arbitration Act 1996. Oral agreements were outside the scope of the previous legislation because of the definition of an arbitration agreement. The Arbitration Act 1996 contains a much broader definition of writing and some agreements which would previously have been oral agreements are now treated as “in writing” for the purposes of the Act. The statute also makes it

difficult to participate in arbitration proceedings arising out of an arbitration agreement which is alleged to be oral without it being construed as an agreement in writing. An oral agreement to arbitrate is unusual in most modern commercial contexts. Where the whole of the contract, including the agreement to arbitrate, is oral, the existence and validity of the entire contract may also be in doubt. Clearly therefore oral agreements to arbitrate should be avoided by reducing them to writing so that they fall within the terms of the 1996 Act. [s 7.40] Subsection (4) The content of the arbitration agreement can be recorded in any form whether or not it was concluded orally, by conduct or by other means. This means that the oral agreement could be recorded and transcribed. There would need to be writing signed by the parties confirming an arbitration agreement in writing. “Other means” appears to leave open the prospect of future technology to initially record the content of the arbitration agreement that would later have to be transposed into writing. (See: [s 7.45].) In Wyong Shire Council v Jenbuild Pty Ltd [2012] NSWSC 720 the issue arose whether contracts made between the parties constituted a valid arbitration agreement for the purpose of s 7 of the Commercial Arbitration Act 2010 (NSW). All contracts contained the same dispute resolution clause. The clause required any dispute to be the subject of a notice of dispute. Before proceedings by way of arbitration or litigation could be commenced further steps had to be taken involving two alternatives. The first alternative required the parties to confer to resolve the dispute or to explore its resolution by other means. If the other means fail then the dispute can be referred to arbitration or litigation. The second alternative required the superintendent to give a written decision on the dispute. A party dissatisfied with that decision can request a conference. Thereafter, steps equivalent to alternative one are to be followed. The annexure prepared by the council that was included in the request for tender contained “discrepancies” (inaccurate information). In correspondence following a notice of dispute the superintendent on behalf of the council acknowledged the discrepancies and indicated its preference for the first alternative in the dispute resolution clause. The council’s preference for the first alternative was accepted by

[page 61]

Jenbuild. McDougall J held that the when the contracts in question were made, the parties failed to achieve agreement on all aspects of the dispute resolution to be followed. The ambiguity or discrepancy in the contract documents was resolved when the superintendent directed the principal’s preference, and at least by implication made it clear that its preference was to be adopted. If this were not correct, McDougall J stated at [57] that he would find that the two documents constituted offer and counteroffer, and that the council’s counteroffer (conveyed through the superintendent) was accepted by conduct. The promise of each party to submit to the routine imposed by the first alternative was capable of being good consideration for the reciprocal promise of other party to do likewise. The parties intended that this choice should govern the dispute resolution procedure. McDougall J concluded at [60] that the parties formed a contract ancillary to each of the principal contracts, clarifying and governing the dispute resolution process to be followed when dispute arose. This was subsequently confirmed by the council in a letter in which it was stated that the council would not proceed by expert determination, but on the contrary “requires any disputes to be dealt with in accordance with the contract, that is by arbitration or litigation”. [s 7.45] Conventional estoppel — whether the parties were estopped from denying their contractual relationship is governed by a dispute resolution clause In Wyong Shire Council v Jenbuild Pty Ltd [2012] NSWSC 720, Jenbuild submitted that the council was bound by a conventional estoppel, so that it could not deny that there was an arbitration agreement in the terms submitted by Jenbuild. McDougall J in adopted the comments made by Young J A in Noon v Bondi Beach Astra Retirement Village Pty Ltd [2010] NSWCA 202 at [235]: In Moratti Pty Ltd v Lawrence James Gordon (2007) 13 BPR 24,713; [2007] NSWSC 5 at [32], Brereton J said that there were five matters necessary to be established to brew a conventional estoppel, namely: (1) that [the plaintiff] has adopted an assumption as to the terms of its legal relationship to the defendant; (2) that the defendant has adopted the same assumption; (3) that both parties have conducted their relationship on the basis of that mutual assumption; (4) that each party knew or intended that the other act on that basis; that any departure from the assumption will occasion detriment to the

plaintiff. After examining each of the above elements of necessary for the proof of a conventional estoppel McDougall J found the first three elements present in this case. McDougall J stated that the only issue in question was the issue of detriment. Although a notice of dispute was required in any event in each case Jenbuild took the time and trouble to act in accordance with alternative one, as required by the council. It did not (for example) resort to litigation without following through the dispute resolution process. Further Jenbuild has gone to the trouble and expense of applying to the president of IAMA for the appointment of a mediator (sic) (arbitrator) and paying the requisite fee. McDougall J concluded that there is sufficient detriment to warrant the conclusion that the parties are indeed estopped, on a conventional basis, from denying their contractual relationship is governed by the first alternative (cl 47.2, alternative one of the contract) and that the arbitrator is to be appointed by the President of IAMA. [s 7.50] Subsection (5) Subsection (5) allows for the requirement for the arbitration agreement to be in writing to be satisfied by electronic communication provided it is accessible and available for use as a subsequent reference. [s 7.55] Subsection (6) This subsection further clarifies what is meant by the terms “data message” and “electronic communication”. [s 7.60] Subsection (7) This subsection recognises an arbitration agreement contained in a statement of claim and acknowledged in a defence in pleadings for a court case.

[page 62] [s 7.65] Subsection (8) This subsection includes the arbitration agreement referred to in a contract provided that reference is such as to make that clause part of the contract.

Arbitration agreement and substantive claim before court 8 (cf Model Law Art 8)

(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party’s first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. (2) Where an action referred to in subsection (1) has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.

ANNOTATIONS [s 8.5] “a matter which is the subject of an arbitration agreement” When determining a stay application under s 8, a court is asked to consider whether the matter in dispute falls within the ambit of the arbitration agreement. Arbitral clauses generally provide that their scope is with respect to disputes that are either “in connection with” or “arise out of” the underlying agreement. In interpreting the arbitration agreement, the courts take an arbitration friendly approach in construing the clause broadly and liberally. The oft-cited authority for adopting this approach is contained in the judgment of Allsop J (as the Chief Justice then was) in Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; 238 ALR 457; [2006] FCAFC 192; BC200610833 (with whom Finn and Finkelstein JJ agreed), where his Honour said that the Court should construe an arbitration clause “giving meaning to the words chosen by the parties and giving liberal width and flexibility to elastic and general words of the contractual submission to arbitration” (at [164]). His Honour said (at [165]): This liberal approach is underpinned by the sensible commercial presumption that the parties did not intend the inconvenience of having possible disputes from their transaction being heard in two places. This may be seen to be especially so in circumstances where disputes can be given different labels, or placed into different juridical categories, possibly by reference to the approaches of different legal systems. The benevolent and encouraging

approach to consensual alternative non-curial dispute resolution assists in the conclusion that words capable of broad and flexible meaning will be given liberal construction and content. This approach conforms with a commonsense approach to commercial agreements, in particular when the parties are operating in a truly international market and come from different countries and legal systems and it provides appropriate respect for party autonomy. That said, it has been stated there is no rule of construction to be applied to a commercial arbitration agreement irrespective of the plain meaning of the words used; Rhinehart v Welker [2012] NSWCA 95; BC201202509 at [114]–[122]. In John Holland Pty Ltd v Kellogg Brown Root Pty Ltd [2015] NSWSC 451; BC201502956, Hammershlag J said (at [82]): [82] … Whether a particular dispute falls within an arbitration clause is, and remains, a question of construction of the words used, albeit that such an agreement should not be construed narrowly. The words of such an agreement cannot be given a meaning they do not have or, for that matter, not be given a meaning they do have, to satisfy a perceived commercial purpose.

[page 63] In a recent—and very important decision—of the Court of Appeal of Western Australia, Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd (2013) 298 ALR 666; [2013] WASCA 66; BC201301614, the Court took a decidedly pro-arbitration approach in holding that the relevant arbitration clause was broad enough to cover the dispute, and emphasising that a pro-arbitration approach must be taken to the construction of arbitration agreements. Although the proceeding was with respect to the International Arbitration Act, the Court’s analysis of the approach to the construction of arbitration clauses is important for proceedings involving the Commercial Arbitration Act. The background to this proceeding began in 2008 when MCC Australia Sanjin Mining Pty Ltd, under a novation deed with MCC Mining (WA) Pty Ltd, entered into an agreement with Cape Lambert Resources Ltd to purchase mining tenements and related assets. In 2010, Cape Lambert issued proceedings in the Supreme Court of Western Australia seeking to recover $80 million of the purchase price payable under the agreement. The MCC entities sought a stay of proceedings, on the basis that the asset sale and guarantee agreements contained an arbitration agreement under

the International Arbitration Act 1974 (Cth). At first instance, the trial judge found an arbitration agreement existed between the parties, and stayed the proceedings and referred the matter for arbitration pursuant to s 7 of the International Arbitration Act: Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2012] WASC 228; BC201204659. The Court of Appeal agreed with the trial judge and refused to order MCC to pay $80 million into an escrow account. The Court of Appeal found that the dispute as to whether the money should be paid into escrow was within the meaning of “any dispute arising out of or in connection with the guarantee agreement” and therefore also to be determined by the arbitrator under the mandatory dispute resolution procedures. The Court stated this finding was consistent with the plain and ordinary language employed by the parties and international principles of construction, and could not be overridden by a court’s perception of commercial infelicity. The Court summarised the general principles as follows: “[56] The weight of decisions in Australia and in leading commercial jurisdictions internationally establishes that courts will generally take a broad, liberal, and flexible approach to the construction of agreements to refer disputes to arbitration, and will favour a construction of an agreement which provides a single forum for the adjudication of all disputes arising from, or in connection with, that agreement. In Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; 131 FLR 422; ATPR 41-489; BC9601669 (Francis Travel Marketing), the New South Wales Court of Appeal was asked to consider whether an arbitration clause was sufficiently broad to cover a claim under the Trade Practices Act 1974 (Cth). Gleeson CJ (with whom Meagher and Sheller JJA agreed) stated that: When the parties to a commercial contract agree, at the time of making the contract, and before any disputes have yet arisen, to refer to arbitration any dispute or difference arising out of the agreement, their agreement should not be construed narrowly. They are unlikely to have intended that different disputes should be resolved before different tribunals, or that the appropriate tribunal should be determined by fine shades of difference in the legal character of individual issues, or by the ingenuity of lawyers in developing points of argument (165). [57] As Allsop J (as his Honour then was) said in Comandate Marine Corp (at

[164]–[165]): The court should, however, construe the contract giving meaning to the words chosen by the parties and giving liberal width and flexibility to elastic and general words of the contractual submission to arbitration. This liberal approach is underpinned by the sensible commercial presumption that the parties did not intend the inconvenience of having possible disputes from their transaction being heard in two places. This may be seen to be especially so in circumstances where disputes can be given different labels, or placed into

[page 64] different juridical categories, possibly by reference to the approaches of different legal systems [164]–[165]. … [58] These principles have been accepted in this court — see Paharpur Cooling Towers Ltd v Paramount (WA) Ltd [2008] WASCA 110; BC200803347 at [33]–[45], referring to Francis Travel Marketing, as well as ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896; BC200206142 Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 488; [1988] 2 All ER 577; [1988] 3 WLR 867; (1987) 37 BLR 55; Fiona Trust & Holding Corp v Privalov [2007] All ER (D) 233 (Oct); [2007] UKHL 40; [2007] 4 All ER 951; [2007] 2 All ER (Comm) 1053; Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005] FCA 1102; BC200505922; IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466 at 483; (1991) 100 ALR 361; 20 IPR 95; ATPR 41-094. [59] Moreover, an expansive approach to the construction of arbitration clauses is consistent with principles enunciated in other jurisdictions, forming “part of the law of international commerce” — see Fiona Trust and Holding Corporation United Group Rail Services Ltd v Rail Corporation New South Wales [2009] NSWCA 177 [3]; Lipman Pty Ltd v Emergency Services Superannuation Board [2011] NSWCA 163; BC201104482 [6]. In Ashville Investments Ltd v Elmer Contractors Ltd at 517, Bingham LJ (as his Lordship

then was) said, with respect to the scope of an arbitration clause: I would be very slow to attribute to reasonable parties an intention that there should in any foreseeable eventuality be two sets of proceedings (598). [60] In Fiona Trust and Holding Corporation, a decision referred to in Paharpur, Lord Hoffman held that: Arbitration is consensual. It depends upon the intention of the parties as expressed in their agreement. Only the agreement can tell you what kind of disputes they intended to submit to arbitration. But the meaning which parties intended to express by the words which they used will be affected by the commercial background and the reader’s understanding of the purpose for which the agreement was made. Businessmen in particular are assumed to have entered into agreements to achieve some rational commercial purpose and an understanding of this purpose will influence the way in which one interprets their language [5]. … [T]he construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal. The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator’s jurisdiction [13]. [61] In Rinehart v Welker [2012] NSWCA 95, Bathurst CJ declined to follow Lord Hoffman’s speech in Fiona Trust and Holding Corporation due to his Honour’s concern that it may be interpreted as suggesting “a particular rule of construction be applied [when construing arbitration clauses] irrespective of the plain meaning of the words”: at [122]. Nevertheless, to the extent that Lord Hoffman’s observations endorse an expansive approach to the construction of the ordinary meaning of the words of dispute resolution clauses, they are consistent with authority in Australia and other jurisdictions: see [63] below. As Austin J observed in ACD Tridon Inc:

[page 65] In Australia, courts see their task as ascertaining the intention of the authors of a commercial instrument, as expressed in the instrument, taking into account surrounding circumstances and extrinsic materials to the extent permitted by law … [W]hile Australian courts are not constrained by considerations of public policy to adopt a “liberal” construction or arbitration clauses, reflection on the likely intention of the parties will steer them away from any narrow construction. [W]hile Australian courts are not constrained by considerations of public policy to adopt a “liberal” construction or arbitration clauses, reflection on the likely intention of the parties will steer them away from any narrow construction. If, however, the parties have chosen narrow language — for example, language that [sic], on its face, confines the reference to arbitration to the contractual aspects of their dispute— an Australian court will not disregard the language used so as to permit a reference to arbitration of the non-contractual aspects of the dispute as well at [119]–[121]. [62] Similarly, as was observed by the New South Wales Court of Appeal in Lipman: To adopt the liberal approach is not to depart from the meaning of the words chosen by the parties. Rather, it is to give effect to a coherent business purpose through an assumption commercial courts around the world will make that parties are unlikely to have intended multiple venues or occasions for the resolution of their disputes unless they say so [8]. [63] An expansive approach towards the construction of arbitration clauses has also been favoured by the courts in Singapore (see Larsen Oil and Gas Pte Ltd v Petropod Ltd [2011] 3 SLR 414; [2011] SGCA 21 at [11]–[19]; Tjong

Very Sumito v Antig Investments Pte Ltd [2009] 4 SLR(R) 732), the United States (where federal arbitration legislation establishes that any doubts concerning the scope of arbitrable issues should be resolved in favour of arbitration — see Moses H Cone Memorial Hospital v Mercury Construction Corporation (1983) 460 US 1 at 24–25; Mitsubishi Motors Corporation v Soler Chrysler-Plymouth Inc (1985) 473 US 614 at 625–6; 87 L Ed 2d 444; 105 S Ct 3346; 53 USLW 5069), and Canada (Canadian National Railway Co v Lovat Tunnel Equipment Inc (1999) 174 DLR (4th) 385 at [20]; Onex Corp v Ball Corp (1994) 12 BLR (2d) 151 at 158).” In order for a court to stay a proceeding, the matter in dispute before the court must have a relationship with the matter subject to the arbitration agreement. The principles to be applied to determine whether there is a sufficient nexus were discussed by Bergin CJ of the NSW Supreme Court in Hancock v Rinehart (2013) 96 ACSR 76; [2013] NSWSC 1352; BC201312930 (at [85] to [94]): [85] The 2012 Act has only been in force for about one month and jurisprudence in respect of its provisions, in particular s 8, is undeveloped. However similar provisions in other jurisdictions have been judicially considered. In Carter Holt Harvey Ltd v Genesis Power Ltd [2006] 3 NZLR 794 Randerson J, the Chief High Court Judge, considered the Arbitration Act 1996 (NZ) which, pursuant to s 6, included provisions of the Model Law, in particular articles 5 and 8 (which is in identical terms to s 8 of the 2012 Act). After reviewing the relevant authorities, his Honour said at 806–807 [58]: The mere fact that there may be some connection between the Court proceeding and the matter which is the subject of an arbitration agreement is not sufficient to engage art 8(1). There must be a direct relationship between the matter before the Court and the matter which is the subject of the arbitration agreement. Ordinarily, this is likely to arise where the relationship between the two is sufficiently close as to give rise to a material risk of conflicting decisions on fact or law.

[page 66] [86] In dealing with the prospect of a stay of arbitral proceedings which were

“clearly co-extensive”, his Honour said at 807 [61]: It is possible to envisage a case where there is such a substantial degree of overlap of factual or legal issues that it would be inappropriate for both Court and arbitral proceedings to proceed simultaneously, even if the matters in the Court proceeding were not the subject of an arbitration agreement in a way which would engage art 8. While a Court might well be reluctant to intervene in such circumstances, I would not wish to preclude the Court’s jurisdiction to do so in an appropriate case. I express no view as to whether the present case might fall into that category. [87] In Gulf Canada Resources Ltd v Arochem International Ltd (1992) 66 BCLR (2d) 113; 43 CPR (3d) 390 the Court of Appeal of British Colombia considered the provisions of s 8 of the International Arbitration Act 1986 (BC) which provided as follows: 8 Stay of legal proceedings (1) Where a party to an arbitration agreement commences legal proceedings in court against another party to the agreement in respect of a matter agreed to be submitted to arbitration, a party to the legal proceedings may, before or after entering an appearance and before delivery of any pleadings or taking any other step in the proceedings, apply to that court to stay the proceedings. (2) In an application under subsection (1), the court shall make an order staying the legal proceedings unless it determines that the arbitration agreement is null and void, inoperative or incapable of being performed. (3) Notwithstanding that an application has been brought under subsection (1) and that the issue is pending before the court, an arbitration may be commenced or continued and an arbitral award made. [88] Hinkson JA (with whom Cumming JA concurred) noted the “mandatory” terms of subs (2) and said that an applicant must show that a party to an arbitration agreement has commenced proceedings against another party to the agreement “in respect of the matter agreed to be submitted to arbitration”: 119–120 [31]–[32]. His Honour said at 121 [40]:

Where it is arguable that the dispute falls within the terms of the arbitration agreement or where it is arguable that a party to the legal proceedings is a party to the arbitration agreement then, in my view, the stay should be granted and those matters left to be determined by the arbitral tribunal. [89] Flakt Australia Ltd v Wilkens & Davies Construction Co Ltd [1979] 2 NSWLR 243; (1979) 25 ALR 605; 39 FLR 267 involved, in part, the interpretation of s 7 of the Arbitration (Foreign Awards and Agreements) Act 1974 (Cth) (later to become the International Arbitration Act 1974 (Cth)) which provided relevantly: (2) Subject to this Act, where— (a) proceedings instituted by a party to an arbitration agreement to which this section applies against another party to the agreement are pending in a court; and (b) the proceedings involve the determination of a matter that, in pursuance of the agreement, is capable of settlement by arbitration, on the application of a party to the agreement, the court shall, by order, upon such conditions (if any) as it thinks fit, stay the proceedings or so much of the proceedings as involves the determination of that matter, as the case may be, and refer the parties to arbitration in respect of that matter. … (5) A court shall not make an order under subsection (2) if the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed.

[page 67] [90] McLelland J said at 250: In my opinion, the word “matter” in s 7(2)(b) denotes any claim for relief of a kind proper for determination in a court. It does not include every issue which would, or might, arise for decision in the course of the determination of such a claim. The use of the word “settlement” provides support for the view. “Settlement” is an apt

term to be used in relation to a claim for relief — it is less apt in relation to a mere issue. [91] In Tanning Research Laboratories Inc v O’Brien (the Leage) (1990) 169 CLR 332 the High Court considered s 7(2) of the International Arbitration Act 1974 (Cth). After referring to the meaning of the word “matter” in Ch III of the Constitution as “the whole matter”, Deane and Gaudron JJ said at 351 (footnotes omitted): However, in any context, “matter” is a word of wide import. In the context of s 7(2), the expression “matter … capable of settlement by arbitration” may, but does not necessarily, mean the whole matter in controversy in the court proceedings. So too, it may, but does not necessarily encompass all the claims within the scope of the controversy in the court proceedings. Even so, the expression “matter … capable of settlement by arbitration” indicates something more than a mere issue which might fall for decision in the court proceedings or might fall for decision in arbitral proceedings if they were instituted. See Flakt. It requires that there be some subject matter, some right or liability in controversy which, if not coextensive with the subject matter in controversy in the court proceedings, is at least susceptible of settlement as a discrete controversy. The words “capable of settlement by arbitration” indicate that the controversy must be one falling within the scope of the arbitration agreement and, perhaps, one relating to rights which are not required to be determined exclusively by the exercise of judicial power. [92] In Comandate Marine Corp v Pan Australia Shipping Pty Ltd, Allsop J said that the phrase “a matter” is apt to be understood at a level of generality by reference to the arbitration agreement. His Honour said at 106 [235]: [T]he word “matter” in s 7(2)(b) can be seen to be a reference to the differences between the parties or the controversy that are or is covered by the terms of the arbitration agreement. That is, such part (or all) of the differences that fall within the scope of the arbitration agreement. It is that body of differences which is to be capable of settlement by arbitration.

[93] In cases concerning the meaning of the word “matter” as used in s 7(2)(b) of the International Arbitration Act, it has been held that if proceedings “extend beyond the matter which can be referred to arbitration” then the whole of the proceedings must be stayed until an award is made on the matter so referred: Tanning Research Laboratories Inc v O’Brien at 345 per Brennan and Dawson JJ. [94] In Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420, Merkel J also considered the provisions of s 7(2) of the International Arbitration Act 1974 (Cth). That case involved an agreement that was governed by the law of Iowa. His Honour concluded that there was a matter that arose under the relevant sale agreement that was capable of settlement by arbitration. His Honour concluded that a stay of the proceedings in so far as it related to that “matter” had to be ordered under s 7(2) of the International Arbitration Act. In respect of the other aspects of the litigation his Honour said at 434–435 (some citations omitted): 65 In the event that a proceeding includes matters that are not capable of being referred to arbitration, but the determination of which is dependent upon the determination of the matters required to be submitted to arbitration, a court may, in the exercise of its discretion, stay the whole proceeding: see Tanning Research at 216 per Brennan and Dawson JJ. A court may also exercise a discretion to impose terms that the arbitration of the arbitrable claims not proceed prior to the determination of the non-arbitrable

[page 68] claims where the arbitral claims are seen to be subsidiary to or significantly less substantial than, but overlapping with, the nonarbitrable claims. The discretion may also be exercised to stay the proceedings were the non-arbitrable claims are the ancillary claims. 66 The broad discretion arises as part of the exercise of the court’s general power to control its own proceedings. The basis for the discretion is that the spectre of two separate proceedings — one curial, one arbitral — proceeding in different places with the risk of inconsistent findings on largely overlapping facts, is undesirable. See also the comments in Lysaght Building Solutions Pty Ltd (t/as Highline

Commercial Construction) v Blanalko Pty Ltd (No 3) [2013] VSC 435; BC201312029 at [127]. “In connection with” and “arising out of” The two expressions commonly used to describe or delimit the scope of an arbitration agreement are generally interpreted synonymously. The authorities suggest that these expressions indicate an intention that the ambit of the dispute resolution clause is to be interpreted broadly and widely: see Amcor Packaging (Aust) Pty Ltd v Baulderstone Pty Ltd [2013] FCA 253; BC201301419 at [29]. In Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496; 206 ALR 558; [2004] FCA 698; BC200403193, Allsop J (as the Chief Justice then was) dealt with an issue concerning what cross-claims fell within a dispute resolution clause where the relevant words were “any dispute arising out of or in connection with this Contract.” Allsop J said (at [32]) that the words should be given a “wide or generous construction” and that the parties intended that there be “a reach of some width of liberality”. As observed by Marshall J in Amcor Packaging (Aust) Pty Ltd v Baulderstone Pty Ltd [2013] FCA 253; BC201301419 at [31]: By analogy, a similar approach may be observed in the judgment of the High Court in the context of the construction of eligibility rules of registered organisations under industrial relations laws. In that regard, see R v Isaac; Ex parte Transport Workers Union of Aust (1985) 159 CLR 323 at 335 where Gibbs CJ said that the use of the expression “in connection with”, “very considerably widens the scope of the rule”. In Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; 238 ALR 457; [2006] FCAFC 192; BC200610833, Allsop J said (at [175]): These words encompass more than merely arising as a contractually classified complaint from one party’s rights or another party’s obligations under, or in, a bilateral juridical relationship. The width of the phrase “arising out of” in this context and its synonymity with the expression “in connection with” reflect the practical, rather than theoretical, meaning to be given to the word “contract” out of which the disputes may arise. The notion of a contract can involve practical commercial considerations of formation, extent and scope, and performance of the juridical bonds between the parties, out of which disputes may arise. In my view, there is no bright line to be drawn at the point of contract formation with all causes of action reliant on events prior to that point not being disputes arising out of the contract. It will be necessary in each

case to assess the connection of the dispute with the contract — its formation, terms or performance — to see whether disputes fall within the clause, as well, of course, as the terms of the arbitration clause in the context in which they appear. In Amcor Packaging (Aust) Pty Ltd v Baulderstone Pty Ltd [2013] FCA 253; BC201301419, Marshall J of the Federal Court stayed a proceeding pursuant to s 8 of the Victorian Act. The dispute, involving the two companies as well as a number of individuals, arose from an agreement to design and construct a building to house a large paper machine and the installation of the machine under a Project Delivery Proposal Agreement (“PDPA”). It was contemplated that following the PDPA a guaranteed maximum price contract be entered into. After negotiations, Baulderstone’s parent company withdrew its approval for Baulderstone to submit a guaranteed

[page 69] maximum price. Amcor then foreshadowed that it would commence proceedings against Baulderstone and two of its managers in their personal capacities on the basis that it made representations as to future matters without reasonable grounds. Baulderstone sought to stay the proposed proceedings, relying on the PDPA’s arbitration clause which required that ‘a dispute arising out of or in connection with the PDPA’ be referred to arbitration. Amcor opposed the application, arguing that the dispute did not arise from the PDPA but from a proposed guaranteed maximum price contract that never eventuated, and, further, because the general managers were not parties to the PDPA. After considering the authorities and the general approach taken by courts to interpreting an arbitration agreement, Marshall J concluded that, given the PDPA expressly contemplated the guaranteed maximum price contract would be effected, the proposed contract was “related to, arose out of and was in connection with the matters covered by the PDPA” (at [38]) and to order that the proposed proceeding between Amcor and Baulderstone be stayed (at [47]). With respect to the claims against the managers, Marshall J found that they could not be referred to arbitration as they were not parties to the arbitration agreement. However, his Honour (at [44]–[45]) referred to High Court and Federal Court authorities which supported the view that the fact that “additional issues falling outside the scope of arbitration does not necessarily mean that those matters cannot” be

stayed. Accordingly, his Honour and stayed the proposed proceedings between Amcor and the general managers under the broad discretion granted to the court under s 23 of the Federal Court Act 1976 (Cth). In Nearmap Ltd v Spookfish Pty Ltd [2014] NSWSC 1790; BC201410719, Bergin CJ in Eq took the view that an application for preliminary discovery under the NSW Uniform Civil Procedure Rules 2005 (r 5.3) was not a “matter” subject to s 8 of the CAA. This was with respect to a dispute regarding the dissemination of confidential information. Her Honour concluded (at [72]–[74]) that: [72] … the question whether the plaintiffs are entitled to make a claim under UCPR 5.3 is in my view not a dispute as to the rights or obligations of a party to the Agreements. Nor does it arise out of or relate to “the contents of this Agreement” (cl 21.1(d)). It is a right independent of the Agreements. It a right arising under the Uniform Civil Procedure Rules and any obligation to produce the documents arises from a judicial determination, having regard to whether the prerequisites in the Rule have been satisfied. It is true that in that process the Court must consider whether the plaintiffs “may be entitled to make a claim” against the prospective defendants and in so doing it will have regard to the obligations of the parties to the Agreements but it is not dealing with “a dispute” as defined in the Agreements. It is dealing with the plaintiffs’ entitlement to the relief under UCPR 5.3. [73] The application under UCPR 5.3 arises out of the plaintiffs’ contention that they may be entitled to seek relief from the Court in respect of matters that, if a Court finds that they are so entitled and if they then bring proceedings, might well result in a dispute “as to” the matters referred to in clause 21.1 of the arbitration agreements. But that is for later debate rather than on this application for a stay or referral to arbitration. [74] There is presently no matter in relation to which the action is brought under UCPR 5.3 that is the subject of an arbitration agreement. [s 8.10] “party’s first statement on the subject of the dispute” The Arbitration Act 1996 (NZ), s 8 is in relevantly identical terms to s 8 of the Australian Acts. The precise problem that confronted the court in Gilgandra Marketing Co-Operative Ltd v Australian Commodities & Marketing Pty Ltd [2010] NSWSC 1209 per Slattery J had been considered in New Zealand where principles have been developed which explain the operation of s 8 when an application for interlocutory relief has been made. A summary of the authorities

in New Zealand, as to when a party’s first statement on the substance of the dispute, is found in Mr Kennedy-Grant QC’s paper titled: “The New Zealand Experience of the UNCITRAL Model Law: A Review of the Position as at 21 December 2007” (2008) 4 AIAJ 1 in which he summarises Pathak v Tourism Transport Ltd [2002] 3 NZLR 681 and other New Zealand Authorities:

[page 70] It has been variously held that the following constitute a “party’s first statement on the substance of the dispute”: (a) A notice of opposition and affidavit in opposition to an application for an interim injunction; (b) An originating application for an order setting aside a statutory demand and supporting affidavit; (c) An affidavit in reply in a summary judgment application in which the plaintiff raises the matters which are the subject of the arbitration agreement in reliance on which the plaintiff subsequently seeks to stay proceedings brought by the defendant; (d) Proceeding with a claim after making an application for interim relief with reference to an arbitration agreement but failing then or immediately after the resolution of the interim relief application to apply for a stay, so adopting the statement in the interim relief application as a statement on the substance of the dispute. (See: Hurihanganui v New Zealand Post Ltd, High Court, Auckland M653/98, 3 June 1998; The Property People v Housing New Zealand Ltd, High Court, Auckland CP 415/99, 7 December 1999 per Salmon J; Fisken & Associates Ltd v Frew, High Court, Dunedin CP33/01, 24 August 2001 per Master Venning and Pahak v Tourist Transport Ltd [2002] 3 NZLR 681). In The Property People v Housing New Zealand Ltd, High Court, Auckland CP 415/99, 7 December 1999, Salmon J said at [24]: It is desirable that there be certainty in these matters. Certainty is assured by giving the words of Art 8(1) the ordinary meaning. In my view it is clear that the notice of opposition to the interim injunction application and the affidavits filed in support thereof did constitute a statement by the defendant on the substance of the dispute. In order to be able to rely on Art 8(1) the defendant

should have applied for a stay at least prior to the hearing of the interim injunction application. Its failure to do so means it cannot rely on Art 8. (emphasis added) Slattery J stated at [53] and [58]: [53] Heath J considered all the New Zealand authorities as they applied to parties seeking a stay of civil proceedings … And drew the following conclusions: [47] In my view, a critical distinction is to be drawn between a party who initiates curial interim injunction proceedings in anticipation or in aid of arbitral proceedings and a plaintiff who does not. If proceedings are issued to seek an interim injunction without reference to the arbitration agreement, I am of the view that The Property People Ltd and the cases which follow apply to prevent a plaintiff who issues such proceedings from subsequently seeking a stay. Similarly, a defendant who opposes interim relief and fails to seek a stay (or protest jurisdiction) in respect of the substantive dispute will also be prevented from seeking a stay: see The Property People at [24]. [48] This case is, however, different. The plaintiffs clearly contemplated the commencement of arbitral proceedings to resolve any disputes. If: (a) The plaintiff had relied expressly on Art 9 of the First Scheduled to the Act to justify the grant of an interim injunction; and (b) The proceedings have been initiated under the originating application procedure (as submitted by Mr Tingley), the fact that the application for interim relief did not amount to a submission of the substance of the dispute to the jurisdiction of the court would have been much clearer. But, in my view, the true test to be applied under Pt 8 is whether the plaintiff’s submitted the substantive dispute to the jurisdiction of the court. The reference to the “first statement on the substance of the dispute” (in Pt 8) must be read in that context. …

[page 71] [49] Had a stay been sought immediately after the resolution of the application for interim relief I would have been prepared to stay the curial proceedings. [50] However, arbitral proceedings were not commenced immediately after the application for interim relief was resolved … During that time the plaintiffs had taken significant steps in the proceeding, including the seeking of further and better particulars of the statement of defence and providing further particulars of their statement of claim. In addition, a verified list of documents was sworn. It is no answer … To say those steps were required by the case management process. If the plaintiffs wished to resolve the matter is by arbitration they were required to seek a stay. In my view, a stay should not be granted unless an application under Art 8 is filed, at the latest, immediately upon the resolution of the interim relief issues. … [58] In the result I have found that the 2010 Act applies to the Australian Commodities’ application for a stay of these proceedings. But the application fails because Australian Commodities did not request a referral of the proceedings to arbitration not later than submitting its “first statement on the substance of the dispute”. Australian Commodities’ application for referral to arbitration under the Commercial Arbitration Act 2010 is declined and the application for a stay is dismissed. I confirm the hearing of the proceedings on Monday, 1 November 2010 before me. [s 8.15] Court “must” refer dispute to arbitration Under this Act it is mandatory for the court to stay any proceedings that are commenced in contradiction to the arbitration agreement. This brings to position in relation to domestic arbitration to be the same as for an international Arbitration under the International Arbitration Act 1974 (Cth). The International Arbitration Amendment Act 1989 amended and renamed this Act the Arbitration (Foreign Awards and Agreements) Act 1974 to give the force of law to the UNCITRAL Model Law.

In Art 8 of the Model Law (which requires a court to refer a dispute to arbitration at the request of a party to an arbitration agreement unless the agreement is null and void, inoperative or incapable of being performed) has been replaced by s 8(1) of this Act. Under the former Commercial Arbitration Acts the court had discretion whether to stay the proceedings (see, for example, s 53 of the Commercial Arbitration Act 1985 (WA)). The factors to be considered by a court under the former Commercial Arbitration Acts were discussed in Parsons Brinckerhoff Australia Pty Ltd v Thiess Pty Ltd [2013] QSC 75; BC201309232. The willingness of courts to intervene in arbitrations was one of the factors leading to a decline in arbitrations in Australia. In Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45, Allsop J (as His Honour then was) stated: Through s 16(1) of the International Arbitration Act, Art 8 of the model law has the force of law in Australia. It has the effect of an Act of the Commonwealth Parliament. Its command is simple. The court should refer the parties to arbitration, unless it finds the arbitration agreement to be null and void, inoperative or incapable of being performed. There is, however, recent authority to suggest that s 8 does not require a court to refer a dispute to arbitration. In Caratti v Caratti [no 2] [2014] WASC 65; BC201401290, Allanson J of the Supreme Court of Western Australia was asked to consider an application to stay a proceeding under the Commercial Arbitration Act 2012 (WA). The document in dispute was a deed setting out the terms for the distribution of assets which contained a dispute resolution clause. Notwithstanding whether the clause may or may not have been an arbitration agreement, the Court said (at [12]): If cl 11 of the 2002 Deed is an arbitration agreement, Allen has submitted his first statement on the substance of the dispute. The court is not required to refer the parties to arbitration under

[page 72] s 8(1) of the Commercial Arbitration Act 2012 (WA). Section 8(2) of that Act permits arbitral proceedings to be commenced or continued, and an award made, while the issue is pending before the court. John submits that provision

is permissive only, and subject to the power of the court to restrain them. In my opinion, the submission is correct and the court may restrain parallel arbitral proceedings where that course is necessary to protect its own proceedings or processes or, more generally, where the administration of justice so demands. Contrast this with the more preferred view taken by Vickery J in Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (No 3) [2013] VSC 435; BC201312029, where his Honour said (at [125]–[126]): [125] The use of the imperative word “must” in s 8(1), rather than the permissive “may”, which was employed in the superseded Commercial Arbitration Act 1984, removes the court’s discretion to refuse to grant a stay, and renders the provision mandatory. The only reason a court can refuse to grant a stay is if the arbitration agreement is found to be “null, void, inoperative or incapable of being performed”. This means that if the requirements of the section are met the court has no choice but to grant a stay of the proceeding before it and refer the matter to arbitration. [126] This may result in some inefficiencies in case management in some cases, arising from the potential for litigation on the same project being conducted before different tribunals. Nevertheless the statutory meaning is clear. (citations omitted) See also the Gilgandra Marketing Co-Operative Ltd v Australian Commodities & Marketing Pty Ltd [2010] NSWSC 1209; [2010] NSWSC 1209 at [46]; Brazis v Rosati (2014) 102 ACSR 626; [2014] VSCA 264; BC201408811 at [59]–[60]; and Nearmap Ltd v Spookfish Pty Ltd [2014] NSWSC 1790; BC201410719 at [50]. In John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451; BC201502956, Hammerschlag J said (at [86]–[88]): [86] … Section 8(1) leaves no room for the exercise of a discretion such as was given under s 53(1) of the Commercial Arbitration Act 1984 (NSW). The fact there may be an overlap of issues with claims between one or other of the parties to the arbitration agreement and third parties, with the consequent risk of inconsistent findings arising out of a multiplicity or proceedings, is no longer a relevant factor to be considered by a court in deciding whether or not to refer parties to arbitration (or grant a stay in that context) (see A

Monichino, “International Arbitration in Australia — 2010/2011 in review” (2011) 22 ADRJ 215). [87] Section 8(1) reflects the modern trend both domestically and internationally to facilitate and promote the use of arbitration and to minimise judicial intervention in the process. It gives full effect to the parties’ contractual freedom, which they have exercised by their arbitration agreement, to have disputes comprehended by that agreement arbitrated. [88] In principle, whether a dispute is arbitrable or not cannot depend on a plaintiff party to an arbitration agreement deciding to claim not only against the counterparty, but also a third party stranger. In Passlow v Butmac Pty Ltd [2012] NSWSC 225, a case heard by Adamson J, the plaintiff claimed damages for injuries he suffered on 9 September 2007 when the fuel of a motorcycle he was riding became dislodged, causing him to be doused in fuel which ignited and gave him substantial burns. The first and second defendant is alleged to be responsible for the manufacturer, importation and supply of the motorcycle. The evidence reveals the second defendant to be a holding company of the first defendant. On 16 May 2010 judgment was entered against the third defendants, The Stable (Wagga) Pty Ltd, which supplied the motorcycle to the plaintiff. On 27 September 2011 the first and second defendant is filed a cross-claim against a Swiss Company which is alleged to have manufactured the motorcycle. The first defendant alleges that it is entitled to a contractual indemnity and both cross-claimants claim contribution in indemnity

[page 73] under s 5 of the Law Reform (Miscellaneous Provisions) (the 1946 Act). No defence had been filed to the cross-claim by reason of the cross-defendant’s application for a stay. The cross-defendants seek a stay of the cross-claim on the basis of its Agreement with the first defendant entitled “Exclusive Import Agreement” (the Agreement) dated 1 March 2004 that had a duration of five years. A further agreement for the following five years in similar terms was subsequently entered into. The first defendant relies on the indemnity cl 15 as the basis of its cross-claim.

Clause 18 was an arbitration clause that stated in s 18(1) if a dispute arising under this Agreement is not settled pursuant to cl 17 (the Alternative Dispute Resolution clause) then despite anything set out in this agreement that dispute must be referred to arbitration in accordance with this cl 18 and shall be finally settled by a binding arbitration in Singapore, conducted by a single neutral arbitrator (Arbitrator) having (legal) experience in the field of the motorcyclebusiness and product manufacturing agreements and disputes.” The crossclaimants raise several arguments that the agreement is null and void, inoperative or incapable of being performed. They submitted that: 1. Clause 17 is incomplete and uncertain because it constitutes an agreement to agree and is unenforceable; 2. Clause 18 depends on compliance with clause 17 and so it, too, is incomplete and uncertain; 3. Further, clause 18 is, of itself, incomplete and uncertain because it does not specify the process of arbitration with any degree of particularity and it makes no provision for costs. Adamson J, at [16], stated: I do not accept the cross-claimants’ submissions that cl 17 is unenforceable or that cl 18 is thereby rendered inoperative. Although cl 17(4) imposes an obligation on the parties to “seek to agree on a process for resolving the whole or part of the dispute through means other than litigation or arbitration”, cl 17(6) provides for a certain end to this process which then triggers a right in each party to refer the dispute to arbitration pursuant to cl 18. This is sufficient to distinguish the clauses from those considered in Aiton (Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236; [1999] NSWSC 996 at [74]) “To my mind, where the parties agree to follow a dispute resolution procedure as a condition precedent to either party commencing proceedings, it is important that the parties be able to determine when that procedure had come to an end”. Adamson J held that cll 17 and 18 were not relevantly dissimilar to the clauses under consideration in United Group Rail Services Ltd v Rail Corp New South Wales (2009) 74 NSWLR 618; [2009] NSWCA 177, where the court of Appeal held that a contractual promise to engage in genuine and good faith legal obligations as part of a contractual procedure for dispute resolution was a binding obligation. It was neither incomplete nor void for uncertainty. After analysing cl 17 and in particular the decision of Allsop J in United Group Rail Services Ltd v Rail Corp New South Wales (2009) 74 NSWLR 618;

[2009] NSWCA 177 at [74] (with whom Ipp and Macfarlan JJA agreed), Adamson J stated at [20]: I consider clause 17 to be enforceable. In my view, it is neither uncertain, nor incomplete. Clause 17 (4) imposes an obligation to seek to agree and clause 17 (6) provides an endpoint to the obligation to negotiate, thereby triggering the right to refer the dispute to arbitration. Although breach of the obligation to “seek to agree” may be difficult to prove, this does not, as the passage set out above establishes, deprive the clause of its legal force and content. Adamson J also rejected a submission that the unenforceability of cl 17 infected cl 18, as was found in Aiton. His Honour accepted that the two clauses must be read together to constitute a “staged procedure”, however, in view of his findings on cl 17, cl 18 is not unenforceable by reason of any uncertainty in cl 17. In response to the cross-claimants’ submission that cl 18, although complete, was uncertain since it did not set out the process of arbitration to be followed, Adamson J stated at [24]:

[page 74] I do not accept the submission. Article 19 confers ultimate power on the arbitral tribunal to determine matters of procedure. The Agreement is not void from uncertainty merely because such matters of procedure have not been determined in advance by the parties and expressed in terms of the Agreement. In response to the cross-claimants’ submission that cl 18 was at unenforceable because it made no provision for the costs of the arbitration and that this was a matter which needed to be included to preserve the validity of the provision, which would otherwise be void for uncertainty, Adamson J stated at [28]: I do not consider that the absence of any provision for costs in the agreement makes it any less enforceable, either because it lacks a certainty or because it is incomplete. These clauses are distinguishable from those in Aiton. First, although the Model Law does not make provision for an award of costs, there are other potential sources of power for an award of costs, including the lex arbitri (the law of the seat). There may be provision for an award of costs

under Singapore law (a matter about which no evidence was adduced) as there is under Australian law (see s 27 of the Act). Secondly, if the power to award costs is regarded as a matter of procedure, the arbitral tribunal would have power to determine it, in the absence of agreement between the parties under Art 19 of UNCITRAL. According to Rana and Sanson, International Commercial Arbitration (2011) at [11.80], lawyers’ fees are usually held to be procedural, except in the United States. Thirdly, even if there is no power to award costs, this does not make the agreement unenforceable. It is neither uncertain nor incomplete on that ground, since the effect may be merely that no award of costs may be made. In view of his finding that the Agreement was not “null and void, inoperative or incapable of being performed” Adamson J followed Allsop J in Comandate Marine, above, and was obliged to refer the parties (the first cross-claimant and the cross-defendant) to arbitration. It was accepted by the cross-claimants that, in so far as the cross-claim alleges a contractual indemnity the dispute falls within the agreement. However, they submitted that a claim for indemnity pursuant to s 5 of the 1946 Act does not. Thus the court, even if otherwise disposed, or indeed required, to stay the crossclaim, the cross-claimants submitted that this action should not be taken in respect of a statutory claim for contribution. In a related submission it was submitted that the court’s obligation to refer the matter to arbitration did not arise because the determination of the claim for contribution was not “capable of settlement by arbitration” within the meaning of s 7(2) of the Act. (See: [31][32]). Section 5 of the 1946 Act was titled: “Proceedings against and contribution between joint and several tort-feasors”. In s 5(2) the amount of the contribution recoverable from any person “shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage …” The cross claimants submitted that only a court could determine the amount under s 5(2) and the arbitral tribunal had no jurisdiction to determine whether, had the cross-defendant been sued by the plaintiff, the cross-defendant would have been liable, it could not determine whether any claim for statutory contribution arose. The cross-defendant submitted that the cross claimants submissions were at odds with the results in Comandate in which it was held the arbitral clause was sufficiently wide to encompass claims made by Pan under the Trade Practices Act 1974 (Cth). The cross-defendant also submitted that a liberal approach to the interpretation of arbitration agreements was appropriate rely upon what was said

by Allsop J in Comandate, at [164]-165]. Adamson J answered both submissions of the cross-claimants by referring to the judgement of Allsop J in, Comandate at [241]. First, it was for the arbitrator and not the court to determine applying relevant principles of conflict of laws, and what part the statutory claim for contribution will play in the arbitration. Second, there is an implied term in arbitration agreements: … that the arbitrator is to have authority to give or the the claimant such relief as would be available to it in a court of law having jurisdiction with respect to the subject matter: Government Insurance Office of New South Wales v Atkinson-Leighton Joint Venture (1981)

[page 75] 146 CLR 206 at 246–7; 31 ALR 193 at 229 and Francis Travel (1996) 39 NSWLR 160 at 167. It follows that it was for the arbitrator to determine whether the cross-defendant would have been liable if sued by the plaintiff, the [cross-defendants] and the amount that is under s 5 of the 1946 Act “just and equitable having regard to the extent of that person’s responsibility for the damage …” Adamson J found support for his view from the statements of Allsop J, and stated at [42]–[44]: [42] Section 82 of the Trade Practices Act, which arose in, Comandate, does not refer to a court, but rather provides that a person who has suffered loss or damage by the conduct of another person that was done in contravention of various provisions of the Act may recover the amount of the loss by action against that person. However, s 80 expressly confirms the power on a court to grant injunctions, and s 87 confers power on the court to provide other relief. There was no suggestion in Comandate, that any distinction ought to be drawn for the purposes of determining the arbitrability of the dispute, whether the claim was made under s 82 on the one hand, or s 80 or s 87 on the other. Accordingly what was said in Comandate would not seem to be inapplicable to a claim under s 5 of the 1946 Act on the basis that there is a specific reference to a court in that section. [43] Furthermore, to borrow the words of Allsop J in Comandate at [240],

there is nothing inimical to Australian public policy or to the terms of the 1946 Act in commercial parties agreeing to commercial arbitration in Singapore. Here, if a stay is mandated under s 7 or Art 8, that is because of the operation of the law of the Parliament exhibiting the public policy considerations specified in s 2D of the Act. The 1946 Act is not being undermined; rather a law of the Commonwealth Parliament is in operation. [44] In Comandate, the relevant law was also a Commonwealth law, the Trade Practices Act. The position is a fortiori in the instant case since the 1946 Act is a state law. Furthermore, Adamson J was fortified by the decisions in Incitec Limited v Alkimos Shipping Corporation (2004) 138 FCR 496; and the decision of the New South Wales Court of Appeal in Global Partners Fund Ltd v Babcock and Brown Ltd (2010) 79 ACSR 383; [2010] NSWCA 196 at [69] per Spigelman CJ, with whom Giles and Tobias JJA agreed. However, note that in certain circumstances the court may stay the proceedings but not find it appropriate to refer the matter to arbitration: see John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451; BC201502956 at [181]–[194]. (See: [s 34.55], [s 34A.20], [s 36.60].) [s 8.15A] Subway Systems Australia Pty Ltd v Ireland [2013] VSC 550 Only in rare circumstances will a court not grant a stay where the parties have agreed to an arbitration clause. This occurred in Subway Systems Australia Pty Ltd v Ireland [2013] VSC 550; BC201313787, where the issues on appeal to the Supreme Court of Victoria against a decision of a Senior Member of the Victorian Civil and Administrative Tribunal (VCAT) were: (a) whether VCAT is a “court” for the purposes of s 8(1) of the Commercial Arbitration Act 2011 (Vic) (see CAA); (b) whether VCAT was bound to refer the dispute between the Irelands and Subway Systems Australia Pty Ltd (SSA). Submissions “VCAT was a ‘court’” On appeal SSA submitted that there were cases in which the word “court” is used in legislation where that term has not been defined and has been considered as including and as not including VCAT or some other statutory tribunal (Moorabool Shire Council v JB Taitapannui [2002] VSC 418, Nettle J where it was held that “court” in s 417B of the Corporations Act 2001 (Cth) included VCAT. (See: Sarandis (Vic) Pty Ltd v Mulberry’s Australia Pty Ltd [2002] VCAT 390.) It was submitted that the

above cases should be preferred to cases where it was held that a tribunal such as VCAT was not a court. (See: Australian Liquor, Hospitality and Miscellaneous Workers Union v Homecare Transport Pty Ltd (2002) 117 FCR 87; [2002] FCA 497 (Merkel J.))

[page 76] “court” The word “court” should be given a liberal and beneficial construction to accord with the purposes and policies of the Act. In its submission SSA referred to a passage in the judgment of Weinberg JA in Director of Housing v Sudi (2011) 33 VR 559; [2011] VSC 266 with reference to the judgment of Kenny J in Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2007) 169 FCR 85; 248 ALR 494 where he said at [192]: Kenny J reasoned as follows. Chapter III of the Constitution requires that only “courts” can exercise judicial power of the Commonwealth, A body must be characterised as a “court” for one purpose but not for another. The meaning of the word “court” in a statute depends on the terms of the particular Act, and the statutory context in which that word appears. However, within the Constitution, the meaning of that word is less malleable than elsewhere (emphasis added in by SSA in their submissions in reply). Method of decision-making Croft J, in Subway Systems, considered the provisions of the Commercial Arbitration Act 2011 (CAA) in light of the statutory context of that Act; in its derivation from and substantial adoption of the provisions of the United Nations Commission on International Trade Law (UNCITRAL) Model Law (the Model Law) for the purposes of the domestic commercial arbitration. Application of the Commercial Arbitration Act Croft J held that the international origin of most of the provisions of the provisions of the CAA is the subject of a specific provision in s 2A of the CAA. The aim of these sections is to seek uniformity of interpretation of the provisions of the CAA consistently with the provisions of the Model Law (as also given effect under the provisions of the International Arbitration Act 1974 (Cth) (the IAA). These provisions were also treated as legislative extrinsic materials for the purpose of interpreting the CAA the documents relation to the Model Law, being documents of UNCITRAL

and also of its working groups for the preparation of the Model Law. The provisions of s 2A(4) were indicative of the legislature treating the UNCITRAL material as, in effect, additional material for the purposes of s 35 of the Interpretation of Legislation Act 1984 (Vic). A similar provision is contained in s 17 of the IAA. In TCL Air Conditioner (Zongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 295 ALR 596; [2013] HCA 5, French CJ and Gageler J said at [20]: The working papers of the UNCITRAL working groups for the preparation of the UNCITRAL Model Law are also useful in classifying the implicit ambit of the statement in Art 35 of the Model Law that an arbitral award “shall be recognised as binding”. Croft J held, at [21], that there was no suggestion that this approach was not generally applicable to the provisions of the IAA and CAA. There would be no reason to suppose otherwise in view of the provisions of these Acts to which reference had been made. Section 2A(4) of the CAA is the clarification or savings provisions of s 35 of the Interpretation of Legislation Act 1984 in view if the specific references to the UNCITRAL materials found in s 2A(3) when considered with the purposive interpretation of the legislation in para (a) of s 35 assisted by subpara (b)(i). Section 35 states: Principles of and aids to interpretation 35 In the interpretation of a provision of an Act or subordinate instrument— (a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and

[page 77] (b) consideration may be given to any matter or document that is relevant including but not limited to—

(i)

all indications provided by the Act or subordinate instrument as printed by authority, including punctuation; …

The underlying purpose of the CAA is set out in s 1AC. The purpose of the CAA is to facilitate commercial arbitration efficiently and without unnecessary delay and expense adopting a well-accepted international regime in the form of the Model Law, which emphasises and enhances court assistance rather than court intervention. In terms of court intervention the CAA provides for appeals against awards in s 34A in contrast to the IAA. This does not mean that the provisions of the CAA are to be interpreted without regard to the language of that legislation or without regard to the place of this legislation in the Victorian statute book as a whole. Additionally, the international materials to which reference may be made under the provisions of s 2A of the CAA must be treated carefully, both having regard to their clear origins and purposes and also having regard to the accepted approach of Australian courts to extrinsic materials. The international materials are to be read as an aid to interpretation rather than be read with the relevant statute as though the extrinsic materials were also legislative documents. Croft J, in Subway System above, found that SSA’s submissions with respect to the UNCITRAL Report (A/CN.9/264 (25 March 1985)) containing a commentary in relation to the Model Law, seeks to treat that commentary with reference to the word “court” as more than mere commentary by way of extrinsic material. The submission fails to take account of the fact that the report is a commentary on the Model Law itself and not upon the provisions of the CAA, a separate legislative enactment. The Model Law and the CAA demonstrate that careful attention to definition provisions and the drafting of substantive provisions. Article 2 of the Model Law (Definitions and rules of interpretation) contains a board definition of “court” in the following terms: For the purpose of this [Model] Law: … (c) “Court means body or organ of the judicial system of a state”. The Model Law then goes on to use the word “court” uncapitalised, ie throughout its text as the Model Law was intended to be used by many countries (“states”) throughout the world, utilising civil law and common law and with a variety of judicial systems. The provisions of the Model Law and the

UNCITRAL Report demonstrates this position having regard to the reference to the intended inclusion with in the definition of any other “competent authority” such as the expression is used in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). In both the Model Law and in the New York Convention (Art V para 1(e)) the reference to “court” is non-specific in nature. Croft J, at [29], held that the use of these provisions demonstrated that the Model Law was directed at embracing the diversities in the judicial systems of the various nation states applying the Model Law provisions. The provisions were not directed at dictating which entity or entities are or are not treated as a “court” for the purposes of the Model Law provisions as they operate in or in part of a nation state (eg in Victoria). The provisions of the CAA Croft J found from the provisions of the CAA that considerable care had been given by Parliament as to the definition process of s 2 of that Act and the drafting of the substantive provisions of the Act. This was shown by the careful consideration of the relationship between the definition of “court” in s 2(1) of the CAA, the provisions of s 6 thereof and s 8. The reference in s 6 to the County Court and the Magistrate’s Court demonstrate that if Parliament intended to refer to VCAT in any of these provisions, including s 8, it was open for it to have done so.

[page 78] That the legislative mind was directed to considering the “body or organ of the judicial system” is clear from the references to particular courts by name and from the various functions enumerated in s 6 of the CAA by reference to the corresponding provisions of the Model Law. They include ss 11(3), 11(4), 13(4), 14I(2), 16(9), 17H, 17I, 17J, 19(6), 27A, 27B, 27H, 27I, 27J, 33D, 34 and 34A. When referring the various functions reference is made to the “Court” the capitalised reference to “C” is both consistent with the definition of this word in s 2(1) of the CAA and also the provisions of s 6(1) of that Act that provide for those functions to be performed by the Supreme Court. Croft J, in Subway Systems, above, held that this was a further indication of the care and attention that has been given to the drafting of definitions and substantive provisions of the CAA. This was supported by s 6(2) of the CAA (which is linked to the operation of s 6(1) of the CAA by the closing words of

those provisions) that enables the parties to provide in their Arbitration Agreement or in a further written agreement that the County Court or the Magistrates’ Court have jurisdiction under the CAA. There is no reference to VCAT in these provisions and given the express reference to the various courts by name, it is not open to the parties to agree that the functions provided in s 6 of the CAAcould be performed by VCAT. In addition the provisions of s 41 (Court rules) of the CAA appear to reinforce, or at least confirm this position. Croft J held that Parliament, in considering which “body or organ of the judicial system” of Victoria was to perform the functions referred to in s 6(1) that were significantly derived from the Model Law provisions, thought it appropriate to vest those functions expressly in the Supreme Court, subject to the possibility that the parties to the arbitration agreement may choose the County Court or the Magistrates Court. In terms of the definition of “court” in Art 2C of the Model Law and by reference to the commentary in the UNCITRAL Report, Parliament specified in the CAA that the “body or organ” was primarily the Supreme Court; with the possibility of the County Court or the Magistrates Court, by agreement. Croft J held that in the face of the clear provisions of the CAA that neither the Model Law provisions nor the extrinsic materials provide any basis for departing from this position. His Honour stated, at [34], that the question which then arises is: … whether the provisions of s 8(1) of the CAA detract from or otherwise affect this position as a result of the reference in that section to the word “court”, uncapitalised? It was open to Parliament to refer to VCAT in s 8 had it intended VCAT to have a role. The reference to “court” (uncapitalised) which is directed to protecting arbitral proceedings would not achieve this objective were it to be limited in application to one or more of the Supreme Court, the County Court, or the Magistrates’ Court. If the word “court” had been capitalised (eg “C” for “Court”) then its operation would have been limited to the Supreme Court as a result of the definition contained in s 2(1). In addition, there was no need for the provisions of s 8 to be specific with reference to the County Court or the Magistrates’ Court as it is not a situation where functions need to be separated between courts, as is the position with s 6 of the CAA. Croft J held, at [34], that the provisions of s 8 do not indicate any lapse into generality on the part of the legislature with respect to the meaning of the word “court”, but rather careful attention to the language which, in the context of the

provisions of the CAA indicates that its provisions apply to all courts in the sense of and including the three courts to which reference has been made specifically in s 6. Croft J held that the same applied to s 9 which are intended to refer to all of the previously named courts. Croft J held, at [35], that there was no absurdity or inconvenience that followed from the application of the provisions of s 8 of the CAA, construed on this basis. In referring to submissions made by SSA, His Honour stated the submissions apart from involving a departure from the language of the CAA do not produce a situation that might be regarded as untenable and contrary to the intention of Parliament. The submissions overlook the nature and purpose of VCAT. In Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 at [19], Warren CJ said: VCAT is intended to be a forum for speedy and inexpensive resolution of specific kinds of disputes in respect of which the legislature saw fit to confer jurisdiction.

[page 79] Croft J found, at [40], that having regard to the nature and purpose of VCAT, it did not follow that the absurdity and inconvenience pointed to in SSA’s submissions follows if VCAT was not regarded as a “court” for the purposes of s 8(1) of the CAA. It was quite consistent with the provisions of the CAA that Parliament intended the possibility of VCAT’s broad jurisdiction being untrammelled by any mandatory provisions in favour of arbitration such as those contained in s 8(1) of the CAA. The fact that a proceeding within a similar ambit of jurisdiction in the Supreme Court, the County Court or the Magistrates’ Court, would, if there were a relevant arbitration agreement be constrained by s 8(1). This indicates that there is a distinction between the nature and purpose of VCAT as distinct from that in the Supreme, County or Magistrates’ Courts where procedures were not “speedy and inexpensive”. Further, it does not follow that in circumstances where a dispute commenced in VCAT is within the scope of the arbitration agreement between the parties, VCAT may not make an order under s 77 of the VCAT Act, referring the dispute to the arbitral tribunal as a more appropriate forum.

Although Parliament has excluded a variety of disputes that were formally the subject of the Commercial Arbitration Act, from that process in favour the exclusive jurisdiction in VCAT, (see Retail Leases Act and the Domestic Building Contracts Act 1995 (Vic)). Nevertheless, it does not follow that there is any absurdity or inconvenience in leaving open the option to the parties to commence proceedings in VCAT in the face of an arbitration agreement to take advantage of VCAT as a speedy and inexpensive forum. Croft J stated that this reasoning still leaves open the possibility of a party not sharing this view seeking an order from VCAT in favour of arbitration under s 77 of the VCAT Act. For the above reasons, Croft J held, at [41], that VCAT is not a “court” for the purposes of s 8(1) of the CAA. Consequently, VCAT was not bound to refer the dispute between the Irelands and SSA to arbitration pursuant to s 8 of the CAA. [s 8.15B] Subway Systems Australia Pty Ltd v Ireland [2014] VSCA 142 Croft J’s decision was overturned by 2-1 majority in the Victorian Court of Appeal in Subway Systems Australia Pty Ltd v Ireland [2014] VSCA 142. Maxwell P and Beach JA concluded that VCAT was a “court” for the purposes of s 8 of the CAA, with Kyrou AJA dissenting. Maxwell P and Beach JA saw the general purpose of the CAA as paramount whereas Kyrou J followed Croft J’s reasoning in looking to the words of the Act. Maxwell P held (at [7]) that: The clear policy of the Act (and of the model law which it enacts) is that, when parties have agreed to have disputes between them determined by private arbitration, neither party is at liberty to litigate the matter in dispute through the adjudicative mechanisms of the State. For this statutory purpose, in this statutory context, the Tribunal is indistinguishable from those other adjudicative bodies of the State which bear the title “court”. His Honour referred to the general history and development of the UNCITRAL Model Law and noted that, with the implementation of the CAA, the legislature had expressed its intention that the interpretation of the CAA should ensure, so far as practicable, uniformity between the application of the CAA to domestic commercial arbitrations; and the application of the provisions of the Model Law (as enacted at the Commonwealth level) to international commercial arbitrations (at [24]). Referring to the principles of statutory interpretation, Maxwell P noted (at [29] and [39]): 29 A law of this kind — giving effect to an international agreement —

attracts special rules of interpretation. There is now a substantial body of Australian jurisprudence on this subject, from which the following principles may be discerned: (a) certainty and uniformity of application are of paramount importance; (b) to that end, the rules generally applicable to the interpretation of domestic statutes give way to the rules applicable to the interpretation of treaties;

[page 80] (c) because the international agreement is addressed to a much wider and more varied judicial audience than an act of a domestic legislature, the interpretation of the domestic enactment should be unconstrained by technical rules of interpretation and should instead be informed by “broad principles of general acceptation”; and (d) recourse may be had to the working documents of the international body by which, or through which, the agreed rules were developed. 39 It follows, in my view, that in interpreting s 8 of theVictorian Act, very great weight must be given to the intention of the drafters of art 8 of the Model Law and to the importance of uniformity of interpretation.We should avoid an interpretation of the section which would limit its intended scope by reason only of some peculiarity about the way in which the adjudicative structures of this jurisdiction have been established. In noting the principles of interpretation Maxwell P concluded that VCAT was a “court” for the purposes of s 8 given that the drafters of the Model Law had defined “court” to mean “a body or organ of the judicial system of a State.” Maxwell P said: 40 The intention of the drafters of art 8 is, of necessity, to be determined having regard to the definition of “court” in art 2(c). As noted earlier, “court” is there defined to mean “a body or organ of the judicial system of a State”. It seems clear that this definition was intended to be sufficiently general to be capable of application to the “judicial system” of each contracting State, whatever the constituent elements of that system might be.

41 Whether a particular decision-making tribunal is part of the “judicial system” of a particular State was thus intended to be determined as a question of substance, not of form. As noted earlier, the 1985 UNCITRAL Commentary emphasised that the term “court” was not restricted to those organs actually called “court”. What is determinative, therefore, is the character of the functions which the tribunal performs. Is it a “competent authority”, in the sense of having a recognised adjudicative jurisdiction? … 43 Taking this functional approach to the definition of “court” accords with the manifest purpose of art 8. That is, parties who have agreed to have a relevant dispute dealt with by arbitration are prohibited, by force of their agreement, from taking the dispute — and the other disputant — into the adjudicative processes of the State. This policy reflects the fundamental distinction between arbitral processes (consensual and private) and judicial processes (State-sponsored, public, non-consensual). Having agreed to the former, the parties have no recourse to the latter. Article 8 (and the corresponding provision in domestic law) ensures that the “judicial system” bars any attempt to litigate a dispute which is covered by an arbitration agreement. 44 On this analysis, the drafters of art 8(1) of the Model Law would undoubtedly have intended it to apply to a body like VCAT. Although the Tribunal is not called a court, and its adjudicators are not called judges, its function is judicial. It is “invested with authority to judge causes”, and its decisions determine the rights and liabilities of the parties to proceedings before it. Importantly, as the applicant’s submission pointed out, the Tribunal has a very broad jurisdiction to determine commercial disputes under the Australian Consumer Law and Fair Trading Act 2012 (Vic). That jurisdiction, which was invoked by the Irelands in the present case, is conferred on the Tribunal in common with each of the Victorian courts. 45 If it is correct that Article 8 itself would apply to VCAT, then it would be strange indeed if the Parliament of Victoria had intended (when it enacted s 8 in identical language) to narrow the scope of the provision and — to that extent — defeat the clear policy of the Model Law. Certainly, on my analysis, that would have constituted a departure in substance from the Model Law, a deliberate decision by the legislature to take a narrower view of “judicial system” than

[page 81] that taken by the drafters of the Model Law. Had such a change been intended, it must be assumed that (consistently with the introductory “Note” to the Act) the departure would have been expressly adverted to in the form of a note to s 8. 46 There is, moreover, no discernible policy rationale which might explain such a narrowing of the scope of s 8. That is, I can see no basis on which Parliament might have regarded litigation at VCAT as properly falling outside the scope of s 8, while comparable litigation in the Magistrates’ Court or the County Court would fall within it. 47 Further, such a significant exclusion—which (it must be assumed) would have been done deliberately — would have confounded the objective of uniformity which the Act itself emphasises. This would have been to create a particular Victorian variation, attributable ultimately to nothing more than a difference in nomenclature — the very thing UNCITRAL said in 1985 was irrelevant in this context. 48 Given the interpretive principles flowing from the special character of this Act, and given the Victorian Parliament’s express commitment to uniformity with the Model Law, it seems to me to be of little significance that the Act did not specifically re-enact the Model Law definition of “court”. In the absence of any policy basis for viewing VCAT’s adjudicative role as different — for the purposes of this particular Act — from the equivalent role played by the courts, I would not be prepared to infer from that omission alone that the legislature had made a deliberate decision to make s 8 narrower than the Model Law provision which it replicated.” (citations omitted) Beach JA also found that VCAT was a “court” for the purposes of s 8 of the CAA. His Honour noted that although VCAT had been found to not be a court in a number of decisions, when exercising its original jurisdiction, it discharges a function resembling of the exercise of judicial power by a court (at [73]). His Honour noted that whether VCAT was a considered a “court” depended on the statute (at [74]–[75]): 74 Notwithstanding the cases to which I have just referred (and which hold that VCAT is not a court), the word “court”, when undefined in some statutes,

has, on occasion, been held to include VCAT. For example, the authorities in respect of s 471B of the Corporations Act 2001 show that the word “court” in that section is not to be construed in a strict sense, but rather in a fashion that is broad enough to cover a proceeding in a tribunal such as VCAT. Similarly, in my view, it could not be doubted that the expression “any court”, in s 65(8) of the Constitution Act 1975, includes VCAT. 75 From time to time the Victorian Parliament has defined the word “court” so as to pick up various unspecified tribunals or to pick up VCAT specifically for certain specified provisions. On other occasions the word “court” is defined in a way that plainly excludes VCAT. While s 38 of the Interpretation of Legislation Act 1984 contains definitions of the expressions “Coroners Court”, “County Court”, “Court of Appeal”, “Family Court”, “Federal Court”, “High Court”, “Magistrates” Court”, “Supreme Court” and “VCAT”, there is no general definition applying to statutes (“unless the contrary intention appears”) of the word “court”. (citations omitted). Beach JA found that VCAT answered the description of “a body or organ of the judicial system of Victoria, and that VCAT possesses the six features referred to in Shell Oil Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530; [1931] AC 275 [1931] ALR 1; (1930) 4 ALJR 341. His Honour concluded that (at [89]–[91]): 89 All of that said, one might debate at length the consequences of the failure by the Victorian Parliament to define the word “court” in s 2(1) of the Act in the same terms as that word is defined in art 2 of the Model Law. Further, one might debate at length the failure to make reference to this omission in the note following s 2(1), having regard to the terms of the

[page 82] note at the commencement of the Act. However, as has been said before, it is the nature of contestable statutory provisions that persuasive arguments can commonly be mounted in support of alternative interpretations. 90 When one examines the provisions of the Act, the Model Law and the extrinsic materials to which I have referred, and when one takes into account the purposes of the Act as specified in s 1AA and the paramount object of the

Act as specified in s 1AC, one is driven towards a conclusion that the underlying purpose of the Act was not merely to express a preference for low cost speedy arbitrations over longer more expensive court trials — but rather, and partly in the interests of uniformity, to express a preference for holding parties to their bargains that in terms involve preferring arbitration of whatever kind has been agreed between the parties over State sponsored dispute resolution (no matter how cost efficient or time effective the relevant State body or arm might prove to be). In his dissenting judgment, Kyrou AJA argued that VCAT could not be viewed as a “court” under common law on the basis that it is not bound by the rules of evidence; it cannot enforce its own decisions; some of its members are not legally qualified; it can be required to apply a statement of government policy; and it can be required to provide advisory opinions (at [96]). Further in looking to the text of the CAA, rather than its purpose, Kyrou AJA found, amongst other things: the interplay in the language of ss 2(1), 5, 6 and 41 and the references to “Court” and “court” meant that VCAT could not be considered as a “court” and that an inclusion of VCAT in those sections would be inconsistent with their evident purpose (at [104]); the underlying purpose of staying court proceedings in favour of arbitration agreements was because court proceedings were unable to resolve disputes “without unnecessary delay or expense”, and this factor was not relevant with respect to VCAT which has the object of determining disputes with little formality and technicality and with as much expedition as possible (at [105]); the fact that the definition of “court” as contained in Art 2 of the Model Law was omitted from the CAA, meant that the definition in Art 2 could not be resorted to (at [108]); and VCAT not to be “a body or organ of the judicial system of [Victoria]” (at [110]–[116]). See also Shakur v Aintree Holdings Pty Ltd (t/as Beaumonde Homes) [2015] WASAT 12; BC201500680 at [14]–[18], where the State Administrative Tribunal found it was a “court” for the purposes Commercial Arbitration Act 2012 (WA). (See also [s 1.15]). [s 8.20] Application for a stay may raise other issues In Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd (2011) 80 NSWLR 398; 279 ALR 759; [2011] NSWSC 195, Ball J found that an application for a stay under s 8

raised two issues. First, whether the parties agreed to refer the dispute arising under s 15(2)(a)(i) of the Building and Construction Industry (Security of Payment Act) 1999 (NSW) (the SOP Act) to arbitration; and secondly, whether that dispute is arbitrable. Whether the parties agreed in the contract for the provision of equipment and services for the Uranquinty Power Station depended on the terms of the dispute resolution clause (cl 36) of the contract. Ball J stated at [24]: The nature of the disputes that may be submitted to arbitration is expressed very broadly in cl 36.1(b) of the contract. It includes any dispute “concerning or arising out of or in connection with or relating to this contract or the subject matter of this contract”. Each of the expressions “concerning”, “arising out of”, “in connection with” and “relating to” are expressions of wide meaning. Moreover, arbitration clauses are generally construed widely. As Allsop J (with whom Finn and Finkelstein JJ agreed) explained in Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192 at [165]: This liberal approach is underpinned by the sensible commercial presumption that the parties did not intend the inconvenience of having possible disputes from the transaction

[page 83] being heard in two places … The benevolent and encouraging approach to consensual alternative non-curial dispute resolution assists in the conclusion that words capable of broad and flexible meaning will be given liberal construction and content. Similarly, Gleeson CJ (with whom Meagher and Sheller JJA agreed) said in Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165: Where the parties to a commercial contract agreed, at the time of making the contract, and before any disputes have arisen, to refer to arbitration any dispute or difference arising out of the agreement,

the agreement should not be construed narrowly. They are unlikely to have intended that different disputes should be resolved before different tribunals, or that the appropriate tribunal should be determined by a fine shades of difference in the legal character of individual issues, or by the ingenuity of lawyers in developing points of argument. In considering whether the dispute was arbitrable, Ball J stated that it would be odd to interpret s 8(1) of the Act as requiring the court to refer to arbitration a dispute if any award arising from that reference was not enforceable under s 34(2)(b). In general, an arbitrator is required to resolve a dispute according to the laws of the relevant jurisdiction — which is normally the jurisdiction selected by the parties to the arbitration agreement and govern the resolution of the dispute (Government Insurance Office of New South Wales v Atkinson-Leighton Joint Venture (1979–81) 146 CLR 206 at 235 per Stephen J. The principle to be extracted from this line of authority is that, subject to such qualifications as relevant statute law may require, an arbitrator may award interest where interest would have been recoverable and the matter been determined in a court of law. What lies behind that principle is that arbitrators must determine disputes according to the law of the land. Subject to certain exceptions, principally related to forms of equitable relief which are of no present relevance and which reflect the private and necessarily evanescent status of arbitrators, a claimant should be able to obtain from arbitrators just such rights and remedies as would have been available to him were he to sue in a court of law of appropriate jurisdiction. Applying the above principles, courts have held that, as well as a claim for interest, an arbitrator had power to determine various statutory claims such as those arising under ss 82 and 87 of the Trade Practices Act 1974 (Cth) for contraventions of s 52 of that Act (see IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466; 100 ALR 361) and those under ss 175, 233, 247A and 1071B of the Corporations Act 2001 (Cth) (ACD Tridon v Tridon Australia Pty Ltd [2002] NSWSC 896). However, in certain circumstances, it may be apparent from the nature of the subject matter or the way that it is dealt with by the legislature that it is appropriate for disputes concerning that subject matter to be resolved by the courts, or specialist tribunals established for that purpose. What normally distinguishes this class of case is the existence of some legitimate public interest in seeing that disputes of the type in question are resolved by public institutions or in accordance with structures that are established by parliament rather than institutions and structures established by the parties: see Comandate Marine

Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; 238 ALR 457 at [200] per Allsop J. Examples include proceedings to recover fines, proceedings relating to insolvency and competition law claims: see ACD Tridon v Tridon Australia at [189]–[194] per Austin J. In Metrocall Inc v Electronic Tracking Systems Pty Ltd [2000] NSWIR Comm 136, the Full Bench of the NSW Industrial Relations Commission, sitting in Court Session, thought that the same approach should apply to claims under s 106 of the Industrial Relations Act 1996 (NSW). In reaching that conclusion, the Full Bench pointed to the fact that jurisdiction in respect of claims under s 106 was conferred on a specialist tribunal and the matters that tribunal is required to take into account in determining whether to grant relief under that section include matters such as whether the contract is “against public interest”. Ball J stated that there are a number of aspects of the Security of Payment Act 1999 (NSW) (SOP Act) that suggest that it establishes a particular regime for the recovery of progress payments which cannot be made the subject of arbitration. His Honour noted in Siemens Ltd v Origin Energy

[page 84] Uranquinty Power Pty Ltd (2011) 80 NSWLR 398; 279 ALR 759, the reasons for the introduction of the Act; that the scheme does not alter the parties rights under the relevant construction contract; the parties are at liberty to pursue those rights; any order made under the Act does not affect them (s 32(3)); the SOP Act cannot be excluded, modified or restricted by the provision of any agreement whether in writing or not (s 34(1)). There is no provision in the Commercial Arbitration Act equivalent to s 3(8) of the Uniform Arbitration Acts, which states that nothing in that Act affects the operation of the SOP Act. Ball J stated that the reason why a similar provision to s 3(8) was absent from the Act was that it was unnecessary in view of ss 8(1) and 34(2) and the particular nature of the SOP Act. The nature of disputes under the SOP Act indicate that part of the adjudication process could be subject to arbitration (s 32(3)), and part of it not, as this section confers a right to bring a claim in court (s 15(2)(a)(i)).If the legislature had intended the section to include arbitration it would have specifically said so, as it did in s 32(3). A provision in an arbitration agreement from exercising a right under s 15(2)(a)(i) to bring proceedings in a court of competent jurisdiction is, to that extent void under s 34

of the SOP Act. Ball J stated, at [45], that in his view, a claim under s 15(2)(a)(i) of the SOP Act was not arbitrable. The result being that the court was required to consider whether to stay the proceedings. Ball J, at [47]–[50], also rejected Origin’s application that notwithstanding the above findings the court should stay these proceedings. First, there was no overlap in the two proceedings. Siemens was seeking to enforce a statutory right to a progress payment, a right to an interim payment under s 32. This does not affect the contractual rights that are the subject of the arbitration. Second, in response to Origin’s claim that Siemens should be held to its agreement to arbitrate, it was held that a stay would deprive Siemens of its rights under the SOP Act in circumstances where that Act specifically stated that those rights are available notwithstanding the parties’ agreement. Ball J stated, at [49], that “The court should not by grant of a stay seek to achieve that result simply because that is what the parties have agreed”. Third, in response to the submission that a stay was in the interests of justice because of the significant overlap of the issues in these proceedings and the issues in the arbitration, Ball J made four points: (1) whether Siemens engaged in misleading and deceptive conduct in submitting a false acoustic report and relying on it for its payment claim is only one aspect of the dispute between the parties and the determination of that issue by the court will not render the parties agreement to submit their dispute to arbitration otiose; (2) there was no suggestion the issue is particularly suitable for resolution by arbitration rather than by a court; (3) there was no suggestion that if the court were to determine the issue this would unduly prejudice Origin, for example, the same witnesses would need to give evidence twice; (4) there does not seem to be a real risk of inconsistent findings. If the issue is determined by the court there will be an issue estoppel (Kuligowski v Metrobus (2004) 220 CLR 363 at [21] with the result that it will be unnecessary for the arbitral tribunal to determine the issue. [s 8.23] Where some but not all parties to a court proceeding are parties to an arbitration agreement The question whether a court must stay a court proceeding in circumstances where some but not all the parties to the court proceeding (having different substantive claims between them) are parties to an arbitration agreement was recently considered by Robson J in Re Form 700 Holdings Pty Ltd [2014] VSC 385; BC201406563. In this case, a number of plaintiffs commenced oppression proceedings under s 233 of the Corporations Act 2001 (Cth) against nine separate defendants. The first and second plaintiffs, and the first, third and fifth defendants were the only parties to a shareholders

agreement. The shareholders agreement contained an arbitration clause, which provided “if a dispute arises in connection with [the shareholders agreement] or in relation to the business, a party to the dispute must five the other party or parties to the dispute notice specifying the dispute and requiring its resolution under cl 12.” The other defendant parties were not parties to the shareholders agreement and thus not bound by the arbitration agreement.

[page 85] The defendants made an application pursuant to s 8 of the Commercial Arbitration Act 2011 (Vic), alternatively the general law, to stay the originating process until further order on the basis the relevant parties agreed to refer the oppression action to arbitration. Robson J held that s 8 of the new CAA has significantly changed the principles that apply to stay court proceedings in favour of arbitration. His Honour noted that under the previous legislation dealing with domestic arbitration (under the 1984 Act), the court retained a discretion in relation to whether to stay a proceeding that was capable of being determined by arbitration. Under the new legislation, citing Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (No 3) [2013] VSC 435; BC201312029 (Vickery J), his Honour held this is no longer the case, as the court no longer has a discretion (at [59]–[60]). Robson J noted that it was well established by Australian authorities that an arbitration agreement may invest in an arbitrator the power to exercise statutory powers that a court would have in the same circumstances (at [74], citing Government Insurance Office (NSW) v Atkinson-Leighton Joint Venture (1981) 146 CLR 206; 55 ALJR 212; 1 ANZ Ins Cas 60-425; BC8000098; IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466; 100 ALR 361; 20 IPR 95; (1991) ATPR 41-094; Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; 131 FLR 422; ATPR 41489; BC9601669. His Honour held that, in his view, the relevant test in determining the matter in dispute is that laid down by Merkel J in Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420; 175 ALR 725; [2000] FCA 547; BC200002851 (as adopted by Austin J in ACD v Tridon and Warren CJ and Nettle JA in Flint Ink NZ Ltd v Huhtamaki Aust Pty Ltd [2014] VSCA 166; BC201406644. Robson J, applying that test, held that the subject

matter of the dispute raised by the oppression claim is a claim for an order under the Corporations Act 2001 (Cth) that the defendants purchase the shares held by the plaintiffs in the relevant companies. His Honour (noting the words “in connection with” in the arbitration agreement have to be given a wide import), that proceedings taken to enforce one shareholder to purchase the shares of another is a proceeding touching on and related to the rights and obligations of the parties under the shareholders agreement, and is thus a dispute captured by the arbitration agreement (at [96]–[117]). However, importantly, Robson J held that while the terms of the arbitration agreement are to be given a wide compass, the context of the arbitration agreement is also important. Noting the arbitration agreement is located in the shareholders’ agreement, the scope of the “matters in connection with the [shareholders agreement] or in relation to the Business” may be limited to matters between the shareholders’ in their capacity as shareholders (at [118], emphasis added). On the basis oppression proceedings under s 233 of the Corporations Act 2001 (Cth) can be brought by shareholders in their capacity as shareholders or in some other capacity, and against directors of a company or other persons conducting the affairs of the company, Robson J considered it necessary to examine the capacity in which the parties to the proceeding are suing or being sued to determine whether the claim falls within the scope of the arbitration agreement. For example, Robson J noted that the extent the party was bringing oppression proceedings in their capacity as a shareholder under the Shareholders Agreement, the argument the claim falls within the arbitration agreement is “is stronger”; conversely, to the extent oppression proceedings are brought by a party in another capacity, the argument the claim falls within the arbitration agreement “is weaker”. Further, in respect of claims against the defendants, Robson J held that in considering whether the arbitration clause is enlivened, it should be determined whether the defendants conduct was done in their capacity as shareholders or directors of the company. In this case, Robson J held that some of the claims made by the plaintiffs against the defendants were claims between shareholders, constituting a dispute under the shareholders agreement and a dispute falling within the ambit of the arbitration agreement. However, his Honour also held that some of the claims made by the plaintiffs were claims made in their capacity as directors against defendants in their capacity as directors, and were not claims falling within the ambit of the arbitration agreement. On this basis, Robson J ordered a stay of the dispute between the plaintiffs in their capacity as shareholders and the relevant defendant parties being sued in their capacity as

[page 86] shareholders pursuant to s 8 of the CAA. Robson J refused to order a stay of the other disputes which are not subject to the shareholders agreement. Robson J held that this result would not prevent an effective arbitration of the claims falling within the scope of the arbitration agreement. His Honour considered that an arbitrator will be able to determine whether the defendants to the arbitration (who will be parties to the shareholders agreement) have conducted the affairs of the company in an oppressive manner, and may order the defendants to the arbitration purchase the plaintiff’s shares. In Re Form 700 Holdings Pty Ltd [2014] VSC 385; BC201406563, Kyrou JA and Ginane AJA granted leave to appeal Robson J’s judgment. Their Honours said that the application for leave to appeal raised important questions of law relating to the interrelationship between the Corporations Act 2001 (Cth) and the CAA. [s 8.25] “if a party so requests” The parties now have some control over the process of referral to arbitration and not the courts. (See: Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd (2011) 80 NSWLR 398; 279 ALR 759; [2011] NSWSC 195 per Ball J.) Origin’s real objection to the court not granting a stay was that the parties had agreed that the issue of whether Siemens had engaged in misleading and deceptive conduct would be referred to arbitration. The effect of not granting a stay would undermine this agreement. Ball J stated, at [50], that it could equally be said that Siemens had a statutory right to pursue its claim in court and granting a stay would undermine that statutory right. This would be particularly so where it was held that the claim was not arbitrable. After taking all the matters set out in his judgment into account Ball J held, at [50], that the balance was in favour of not granting a stay. [s 8.30] Parties agree to use expert determination not arbitration In New South Wales v UXC Ltd [2011] NSWSC 530, Ball J at [40], stated that the parties are free to make referral to an expert a condition precedent to the accrual of any rights under the contract and they are free to agree to have their rights and liabilities determined by an expert so that the determination, once made, identifies their contractual rights and liabilities. Some experienced arbitrators always conduct an expert determination on the basis that the expert determination may be found to be an arbitration. Particular

care is taken to strictly comply with the rules of natural justice and the provisions of the Commercial Arbitration Act. In Age Old Builders Pty Ltd v Swintons Pty Ltd (2003) 20 VAR 200; [2003] VSC 307; BC200304749, Osborn J considered the difference between an arbitration and an expert determination was considered. Obsorn J stated, at [67]– [69]: [67] The concept of an expert determination is a well recognised one. The Tribunal quoted from the decision of Einstein J in Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646 where he quoted from guidelines as follows: Guidelines for Expert Determination [15] Business disputes can often be best resolved by the parties with the assistance of an independent third party. Expert Determination is a dispute resolution process which assists parties resolve disputes without the delay and expense of going to court or arbitration. The parties agree by contract to be bound by the decision of the Expert who has expertise in the area where the dispute has arisen. The parties select the Expert from a panel of Experts provided by ACDC. The parties then present documentation relevant to the dispute to the Expert. The Expert considers the documentation and generally arranges to meet with the parties to discuss the dispute. The Expert then makes a determination which binds the parties. Einstein J stated: Expert Determination and Ouster of Jurisdiction

[page 87] [16] As the plaintiffs point out, in practice, Expert Determination is a process where an independent Expert decides an issue or issues between the parties. The disputants agree beforehand whether or not they will be bound by the decisions of the Expert. Expert Determination provides an informal, speedy and effective way of

resolving disputes, particularly disputes which are of a specific technical character or specialised kind. [17] Unlike arbitration, Expert Determination is not governed by legislation, the adoption of Expert Determination is a consensual process by which the parties agree to take defined steps in resolving disputes. I accept that Expert Determination clauses have become commonplace, particularly in the construction industry, and frequently incorporate terms by reference to standards such as the rules laid down by the Institute of Arbitrators and Mediators of Australia, the Institute of Engineers Australia or model agreements such as that proposed by Sir Laurence Street in 1992. Although the precise terms of these rules and guidelines may vary, they have in common that they provide a contractual process by which Expert Determination is conducted. [68] The Tribunal also set out the relevant “rules” for the expert determination of commercial disputes which the parties adopted in the present case as the basis on which the building consultant was retained. In my view a consideration of these rules demonstrates the following: (a) The parties expressly agreed that the expert was not an arbitrator. They agreed: The expert is not an arbitrator of the matters in dispute and shall not be deemed to be acting in an arbitral capacity. The Process or any process conducted under or in any connection with these Rules is not an arbitration within the meaning of any legislation or rules dealing with commercial, industrial, court annexed or any other form of arbitration. Any conference conducted under these Rules is not a hearing conducted under any legislation or rules dealing with commercial, industrial, court annexed or any other form of arbitration. Such an agreement cannot be conclusive of the characterisation of the referral. But it must be regarded as significantly indicative of the intention of the parties as to the nature of the task the building consultant was to undertake. In Badgin Nominees Pty Ltd v Oneida Ltd [1998] VSC 188 Gillard J stated: [56] It is noted here that the parties expressly provided that the

valuation should be by an expert and not an arbitrator. Clearly the parties intended that the procedure should not be by way of arbitration. (b) Although the parties might be required by the building consultant to attend a preliminary conference the agreed Rules simply did not provide for any right to a hearing as to the substance of the dispute. The Rules provided a discretion to the building consultant to convene a preliminary conference “to make such procedural and administrative arrangements as are necessary”. (c) The core procedure provided for was simply the making of initial submissions in writing by one party, a submission in response by the respondent and a submission in reply. If, but only if, the building consultant decided “further information or documentation is required to determine the dispute” the building consultant might require further submissions or documentation and/or call a conference between the parties and the expert. If a conference were called it might take the form of a view and at the conference the expert might permit the making of further submissions and the provision of further information. [69] In my opinion the Rules simply do not provide for an inquiry in the nature of a judicial inquiry. After the conclusion of the initial submission process no adversarial process is envisaged. Further the process thereafter is at the discretion of the expert. Most significantly the parties do not have the fundamental right to a hearing. It is not to the point that this process

[page 88] requires a “determination”, no referral to an expert for determination could be expected to do otherwise than envisage a rational determination. Nor is it to the point that the expert is required to make his determination according to law and in accordance with procedural fairness. The parties and the expert are entitled to agree as to these matters and they are subsidiary to his essential role. The notion of procedural fairness is a flexible one applicable to a process which falls short of an inquiry in the nature of a judicial inquiry. Therefore, the fact an expert may be bound to accord procedural fairness (as that notion is applicable to the particular case) to the parties does not necessarily give the

process the character of a judicial inquiry or an arbitration. The fact that the process results in a determination which is agreed to be final and binding is also hardly surprising. An expert determination would be no more than an advisory opinion if it did not have this effect. In summary although the Rules provide for some matters which would be appropriate in an arbitration the essential character of the procedure was not that of an arbitration. This issue was discussed in Harris v Property Direct (International) Pty Ltd & Ors [2014] VCC 132 at [4] where Judge Anderson of the Victorian County Court considered dispute resolution clause that read as follows: 10.1 Any dispute or difference between the parties arising from or in connection with this Agreement, which cannot be settled by negotiation between the parties must forthwith be referred for determination by a person appointed for that purpose by the parties and, failing agreement, appointed by the President of the Institute of Arbitrators & Mediators Australia (Victorian Division). 10.2 Any determination made under the above sub-clause is binding on the parties and the Commercial Arbitration Act (1984) applies to the determination expect to the extent otherwise agreed by the parties. For the purposes of ss 7(1) and 8(1) of the Commercial Arbitration Act, the Court had to decide whether clause 10 of the Agreement was an arbitration agreement. Judge Anderson observed that (at [13]–[17]): 13. In relation to clause 10 of the present agreement: a. clause 10.1 refers to a person appointed who is to make a “determination”. It does not refer to the appointment of an “arbitrator”, or of a person who is to determine the dispute by the process of “arbitration” and by making an “award”; b. by clause 10.1, the person appointed might decide to determine the dispute by sitting as an “expert adjudicator” or as an “assessor” and not to conduct a “judicial enquiry” or follow the requirements of the rules of natural justice, which would occur in an arbitral process; c. by clause 10.2, the determination under clause 10.2 “is binding on the parties”; d. by clause 10.2, the Act “applies to the determination except to the extent otherwise agreed by the parties”. 14. The concluding works of clause 10.2 are in my view crucial. It was

anticipated by the parties that the “determination” will be subject to the application of the Act, unless the parties otherwise agree. In clause 10.1, the word “determination” is used in the context of not only the final decision, but also the process by which that result is achieved. Clause 10.2 makes it clear that “determination” is to have the same meaning as in clause 10.1. 15. The following provisions of the Act might have application to the “process” including the “result” of that process, ie, the “arbitration” and the “award”: a. to govern the interlocutory steps in the process by granting “interim measures” (s 17); b. equal treatments of parties and the opportunity to be heard (s 18); c. the applicable rules for the conduct of the proceedings (s 19); d. the pleading of the claim and defence (s 23); e. the conduct of the hearing and the provision of documentary and expert evidence (s 24);

[page 89] f. legal representation (s 24A); g. supervision by the Court (s 27H, s 27I and s 27J); h. recognition and enforcement of awards (s 35 and s 36). 16 Clause 10.2 makes the application of the Act subject to “the extent otherwise agreed by the parties”. By clause 10.1, the parties may agree upon the appointment of a person to determine their disputes, and only if agreement cannot be reached will an appointment be made by the nominated third party. If the parties agreed to appoint a person under clause 10.1, they could at that stage determine the nature of the process, eg expert appraisal or assessment, or might otherwise agree which provisions of the Act are not to apply to the process. 17 In the circumstances where, in the absence of such agreement, the Act is to apply to the “determination”, ie, the process as well as the result, the determination must necessarily be conducted as an arbitration and the final decision will have the same effect as an award. [s 8.35] Can the court stay proceedings where the parties have agreed to

refer the dispute to expert determination? In Badgin Nominees Pty Ltd v Oneida Ltd [1998] VSC 188, Gillard J held, at [33]–[35] that the court could, relying on the decision of Dixon J in Huddart Parker Ltd v The Ship Mill Hill (1950) 81 CLR 502 at 508–9 where he stated: [35] But the courts begin with the fact that there is a special contract between the parties to refer, and in the language of Lord Moulton in Bristol Corporation v John Aird & Co (1913) AC 241 at 259, consider the circumstances of the case with a strong bias in favour of maintaining the special bargain or as Scrutton LJ said in Metropolitan Tunnel and Public Works Ltd v London Electric Railway Co (1926) Ch 371 at 389, “A guiding principle on one side and a very natural and proper one, is that parties who have made a contract should keep it”. It is clear however that Dixon J was concerned with an arbitration clause and relied on s 5 of the Arbitration Act 1928 (Vic) as the source of the power to grant a stay. Nonetheless, the approach adopted by Gillard J in Badgin has been approved in other cases on the basis that the court has an inherent power to stay proceedings brought in breach of an agreement to decide the dispute in some other way. (See: Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] 2 Qd R 563; [2005] QSC 135 at [19] per Chesterman J relying on Channel Tunnel Group Ltd v Balfour Beattie Construction Ltd [1993] AC 334 at 352 per Lord Mustill; The Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646 at [21] per Einstein J; Strategic Publishing Group Pty Ltd v John Fairfax Publications Pty Ltd [2003] NSWSC 1134.) [s 8.40] Is a clause that requires the parties to treat an expert determination as binding unenforceable? In New South Wales v UXC Ltd [2011] NSWSC 530, Sch 5 cl 10 of the contract between the parties required them to treat the expert determination as final and binding once made to give effect to it. Ball J held, at [37], that: … a clause which ousts the jurisdiction of the court is unenforceable: see Dobbs v The National Bank of Australasia (1935) 53 CLR 643 at 652 per Rich, Dixon, Evatt and McTiernan JJ. However, the scope of this proposition was affected by two important principles. The first is that the parties to a contract are generally free to identify the rights and liabilities to which the contract gives rise in the way that they choose. One way that they may do so is by agreeing that their rights and liabilities are to be determined by a third

party. Examples include a rent review clause or an arbitrator who make a determination which defines the parties rights and liabilities under the contract. Ball J also continued, at [37], to state that provided the determination is in accordance with the contract “the parties become bound by that determination: Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314”. Legal & General Life of Australia Ltd v A Hudson Pty Ltd Such a clause was never regarded as ousting the jurisdiction of the court since before the determination was made, the parties remained free to commence court proceedings in relation

[page 90] to their existing dispute and, after the determination was made they remained free to commence court proceedings to enforce it or to challenge it on the basis that it was not made in accordance with the contract. Ball J then quoted Rich, Dixon, Evatt and McTiernan JJ in Dobbs v National Bank of Australiasia (1935) 53 CLR 643 that: a clear distinction has always been maintained between negative restriction upon the right to invoke the jurisdiction of the courts and positive provisions giving efficacy to the award of an arbitrator when made or to some analogous definition or ascertainment of private rights upon which otherwise the courts might have been required to adjudicate. It has never been the policy of the law to discourage the latter. The former have always been invalid. Ball J stated further, at [38]: The second general principle is that the parties to a contract are free to specify conditions precedent to the accrual of rights and liabilities under it. In Scott v Avery [1856] EngR 810; (1856) 5 HLC 811; 10 ER 1121 it was held that one condition precedent the parties could impose was a condition that they submit their dispute to arbitration. Until that condition was satisfied, there was no right that could be the subject of court proceedings. But that did not involve

ousting the jurisdiction of the court. In the case before him, Ball J found, at [41], that the clause was a clear example of a clause falling within the first principle identified above. It does not oust the jurisdiction of the court. It simply provides that, once the expert has made a determination, that determination (assuming it was made in accordance with the contract) is the source of the parties contractual rights and obligations. For that reason, the determination is not unenforceable. In the contract before him Ball J stated, at [1] and [2], that the parties agreed to refer the disputes to Mr Bathurst QC (as he then was) for determination. UXC did not challenge Mr Bathurst’s determination that the defendant pay the plaintiff the sum of $2,594,063. UXC accepted that the determination was made in accordance with the contract. [s 8.45] Court can retain matter under limited circumstances The court under this Act has the same power that it has under the Model Law as applied in an international arbitration and can only retain the proceeding if it finds the arbitration agreement to be: 1. null and void; 2. inoperative; or 3. incapable of being performed. [s 8.50] Arbitral clauses presumed to survive termination of an agreement Arbitral clauses are presumed to survive the termination of an agreement. Where there is a dispute as to its application or validity, the courts will usually adopt liberal approach so as to ensure the parties’ intention to resolve their dispute by arbitration remains intact. In Pipeline Services WA Pty Ltd v ATCO Gas Australia Pty Ltd [2014] WASC 10; BC201400070, the plaintiff (“Pipeline”) issued proceedings against the defendant (ATCO) in relation to an alleged breach of an agreement for the installation of underground pipelines to be used for the transmission of gas (“Agreement”). Shortly after work had been commenced, Pipeline was told that unexploded ordnance had been discovered, and thus increasing the difficulty of its task. ATCO advised Pipeline that the Agreement would be terminated and tenders for the new contract called for to take into account the developments. After it was informed by ATCO that its revised tender had not been successful, Pipeline rejected ATCO’s proposal that it be paid for the work it had already undertaken and commenced proceedings in the Supreme Court of Western

Australia. In response, ATCO sought a stay of the proceedings on the basis that parties had agreed to arbitration as one of the mechanisms to resolve their dispute.

[page 91] Amongst other arguments, Pipeline took the position that s 8 of the Commercial Arbitration Act 2012 (WA) had no application because the arbitration agreement did not survive the termination of the underlying Agreement. Pipeline argued that the parties did not intend the dispute resolution mechanisms provided under the relevant cl 25 — including arbitration — to survive the termination of the Agreement. It supported this with the point that the Agreement expressly provided for provisions which would survive the termination of the Agreement — and did not include cl 25 as surviving termination. The Court (per Martin CJ) rejected this argument. The Court observed (at [42]) that an arbitration agreement is generally independent from and survives the termination of the underlying agreement unless there is contrary intention of the parties. The Court referred to the statement of Macmillan LJ in Heyman v Darwins Ltd [1942] AC 356 at 373–374: [A]n arbitration clause in a contract … is quite distinct from the other clauses. The other clauses set out the obligations which the parties undertake towards each other … but the arbitration clause does not impose on one of the parties an obligation in favour of the other. It embodies the agreement of both parties that, if any dispute arises with regard to the obligations which the one party has undertaken to the other, such dispute shall be settled by a tribunal of their own constitution… [W]hat is commonly called repudiation or total breach of a contract, whether acquiesced in by the other party or not, does not abrogate the contract, though it may relieve the injured party of the duty of further fulfilling the obligations which he has by the contract undertaken to the repudiating party. The contract is not put out of existence, though all further performance of the obligations undertaken by each party in favour of the other may cease. It survives for the purpose of measuring the claims arising out of the breach, and the arbitration clause survives for determining the mode of their settlement. The purposes of the contract have failed, but the arbitration clause is not one of the purposes of

the contract. The Court also took the view that unless there is clear and unambiguous language providing otherwise, the court will adopt a broad, liberal and flexible approach favouring the adjudication of all disputes arising out of or in connection with the agreement in one forum (at [43]). Taking those points into mind the Court held that the Agreement did not contain the necessary language to find that cl 25 would not survive the termination of the Agreement. Further, the Court noted cl 26.14 of the Agreement provided that any clauses that “need to survive in order to protect the presumed intention of the parties as expressed in this Agreement’ are to survive termination, even where they are not expressed to do so.” This decision reaffirms that courts loathe interfering with the parties’ intention to arbitrate. If there is an agreement to arbitrate, the courts will usually be willing to order a stay of any court proceedings unless there is clear language to the contrary. [s 8.55] Subsection (2) This subsection confirms that the arbitral proceedings take preference over court hearings. If the arbitral proceedings are referred to a court then the arbitral proceedings may be commenced or continued to an award while the issue is pending before the court. However, there is authority to say that subsection 8(2) should in fact be interpreted contrary to that position. In Caratti v Caratti (No 2) [2014]WASC 65; BC201401290 (see [s 8.15] above), the Court interpreted s 8(2) as permitting (at [12]): … arbitral proceedings to be commenced or continued, and an award made, while the issue is pending before the court. John submits that provision is permissive only, and subject to the power of the court to restrain them. In my opinion, the submission is correct and the court may restrain parallel arbitral proceedings where that course is necessary to protect its own proceedings or processes or, more generally, where the administration of justice so demands. [Discovery relating to application to have arbitration agreement rendered null and void] In Rinehart v Rinehart (No 2) [2015] FCA 339; BC201502493, the applicants (Bianca Rinehart and John Hancock) made an application for discovery of particular categories of documents for the

[page 92]

purpose of enabling them to resist two interlocutory applications brought by the respondents (being, among others, Gina Rinehart and a number of Rinehart companies). The respondents seek orders that the parties refer their dispute to arbitration under s 8(1) of the NSW and WA Commercial Arbitration Acts, and that the proceeding brought by the Applicants be stayed. The respondents claim that there are six separate arbitration agreements (contained in separate deeds and agreements) which apply to the matters the subject of the applicants’ claims in their proceeding. The two central issues for determination in the stay application are as follows: 1. Whether the respondents have established a “sustainable argument” that the claims made in the proceedings are subject to alleged arbitration agreements; and 2. Whether the provision in s 8(1), that the arbitration agreements are “null and void, inoperative or incapable of being performed”, is engaged. An additional issue for determination is whether the proper characterisation of the dispute is a “domestic commercial arbitration” (invoking the application of the Acts), or whether the dispute is a family dispute (as contended by the applicants). In summary, the applicants claim that each of the deeds and agreements containing the arbitration agreement were procured through duress, fraudulent concealment, misleading and deceptive conduct and are therefore are void. The applicants also claim that there is a presumption of undue influence on the basis there was no evidence that the applicants have informed consent when they signed the deeds. The applicants therefore sought orders for the discovery of certain categories of documents in order to prove the factual matters the subject of their contentions. They contended that discovery is necessary to facilitate the just resolution of the issues arising on the stay application, being the proper construction of those agreements, the enforceability of those agreements, whether the proviso in s 8(1) of each Act is engaged, and whether the Acts have a relevant application. It is important to note that O 20.13 of the Federal Court Rules requires a party to apply for discovery (and does not confer on any party the right to have discovery). In the circumstances of this case, the court determined that the applicants should be afforded discovery in order to facilitate the just resolution of the stay application. However, the court was mindful that orders for discovery should not deprive the respondents of the right that they may have to an order that the parties be referred to arbitration. The court noted that discovery, by its nature, is

a process that will tend to defeat any such process. The court determined that that while the arbitral tribunal has the power to determine claims about the validity or invalidity of the relevant arbitration agreements, the referral to arbitration will defeat the asserted right of the applicants to have their claims determined by the court. However, the court noted that the application to stay proceedings in favour of an arbitration agreement should not involve the final determination of the underlying factual and legal issues between the parties, except in so far as that is necessary to determine the respondents’ entitlement to a stay. Accordingly, any discovery ordered must be limited to this purpose. Discovery is not likely to facilitate the just resolution of the stay proceedings “as quickly, inexpensively and efficiently as possible” if it is directed towards the final determination of factual issues that are not required to be determined on the stay application. Accordingly, limited categories of documents were ordered for discovery.

Arbitration agreement and interim measures by court 9 (cf Model Law Art 9)

It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant the measure. [page 93]

ANNOTATIONS [s 9.5] Arbitration agreement and interim measures by court If sufficient reasons can be demonstrated, a court may grant interim measures of protection to a party to arbitration before or during arbitral proceedings. For instance, the court may grant an injunction with or without conditions. Section 9 focuses on the arbitration agreement and gives the power for the court to grant interim measures. It should be noted that the arbitral tribunal has the power to

grant interim measures. (See: Pt 4A, ss 17, 17A and 17J of the Act) (see below). These sections are the means by which interim measures are granted. The courts have upheld the granting of an interim award by an arbitrator. (See: Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd [2011] QSC 306, per Applegarth J.)

PART 3 — COMPOSITION OF ARBITRAL TRIBUNAL

Number of arbitrators 10 (cf Model Law Art 10)

(1) The parties are free to determine the number of arbitrators. (2) Failing such determination, the number of arbitrators is to be one. Note Subsection (2) differs from Art 10(2) of the Model Law, which provides for 3 arbitrators if the parties do not determine the number of arbitrators.

ANNOTATIONS [s 10.5] Number of arbitrators In some Australian states there may be difficulty in obtaining three arbitrators giving rise to the default provision of one arbitrator. The parties need to be careful as to who they choose as arbitrator in view of the limited role of the court as stated in s 8(1). In most proceedings the parties will have to accept the decision of the arbitrator that they have chosen. [s 10.10] Subsection (2) — in default of agreement there will be one arbitrator This subsection states that the default position is that there will be one arbitrator. This will hopefully encourage parties to co-operate in choosing more than one arbitrator, if that is what they want. Note: Subsection (2) differs from Art 10(2) of the Model Law, which provides for three arbitrators if the parties do not determine the number of arbitrators.

Appointment of arbitrators 11 (cf Model Law Art 11)

(1) [omitted] Note Art 11(1) of the Model Law (which provides that no person is precluded by nationality from acting as an arbitrator unless otherwise agreed by the parties) has been omitted. (2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of subsections (4) and (5). (3) Failing such agreement— [page 94] (a) in an arbitration with 3 arbitrators and 2 parties, each party is to appoint one arbitrator, and the 2 arbitrators so appointed are to appoint the third arbitrator; if a party fails to appoint the arbitrator within 30 days of receipt of a request to do so from the other party, or if the 2 arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment is to be made, on the request of a party, by the Court; and (b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, an arbitrator is to be appointed, on the request of a party, by the Court; and (c) in an arbitration with 2, 4 or more arbitrators or with 3 arbitrators and more than 2 parties the appointment is to be made, at the request of a party, by the Court. (4) Where, under an appointment procedure agreed on by the parties— (a) a party fails to act as required under the procedure; or (b) the parties, or 2 or more arbitrators, are unable to reach an agreement expected of them under the procedure; or (c) a third party, including an institution, fails to perform any function entrusted to it under the procedure— any party may request the Court to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.

(5) A decision within the limits of the Court’s authority on a matter entrusted by subsection (3) or (4) to the Court is final. (6) The Court, in appointing an arbitrator, is to have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator. Note This section (other than subsections (3)(c), (5) and (6)) is substantially the same as Art 11 of the Model Law. Subsection (3)(c) is added to cover the contingency of the parties failing to agree on the procedure to appoint arbitrators in certain circumstances not covered by the Model Law as incorporated in this Act. It is based on clause 11(6) of Schedule 1 to the Arbitration Act 1996 (NZ). Subsection (5) makes it clear that, although a decision of the Court is generally final, review of a decision of the Court that is not made within the limits of its powers and functions is not precluded. Subsection (6) does not include the requirement in Art 11(5) of the Model Law that the Court take into account the advisability of appointing an arbitrator of a nationality other than those of the parties in appointing a sole or third arbitrator as this is not relevant in the context of domestic commercial arbitrations.

ANNOTATIONS [s 11.5] Appointment of arbitrators Article 11(1) of the Model Law (which provides that no person is precluded by nationality from acting as an arbitrator unless otherwise agreed by the parties) has been omitted. It was not needed in Australia because of the presence of other legislation, such as, the Racial Discrimination Act 1975 (Cth). [s 11.10] Subsection (2) Parties have autonomy to agree on a procedure of appointing the arbitrator or arbitrators as long as they comply with subss (4) and (5). [s 11.15] Subsection (3)(a) If the parties cannot agree on the procedure of appointing the arbitrator or arbitrators, then subs (3)(a)–(c) apply. Under subs 3(a) in an arbitration with three

[page 95]

arbitrators and two parties with one arbitrator appointed by each party, if the two arbitrators fail to appoint the third arbitrator within 30 days of receipt of a request to do so, then the appointment can be made by the Court upon the request of a party. [s 11.20] Subsection (3)(b) If there is only one arbitrator and the parties cannot agree on the appointment then upon the application of a party the court may make the appointment. [s 11.25] Subsection (3)(c) Subsection (3)(c) applies where there are two, four or more arbitrators or with three arbitrators and more than two parties then upon the request of a party the court may make the appointment. Subsection (3) (c) is based on Sch 1 cl 11(6) to the Arbitration Act 1996 (NZ) that allows the court to appoint arbitrators where there is no agreement between the parties or the situation is not covered by the Model Act. (See: Note immediately following the legislation above). [s 11.30] Subsection (4) Where there has been an agreed procedure for appointment of an arbitrator or arbitrators and a failure of a party or an arbitral institution to make an appointment, this subsection applies. [s 11.35] Subsection (5) An appeal against a single judge’s decision is allowed if the requirements of subs (5) are met. [s 11.40] Subsection (6) In making the appointment of an arbitrator, or arbitrators, the court is to have regard to any qualifications required by the arbitrator, by the agreement of the parties and to such considerations as are likely to lead to the appointment of an independent and impartial arbitrator.

Grounds for challenge 12 (cf Model Law Art 12)

(1) When a person is approached in connection with the person’s possible appointment as an arbitrator, the person must disclose any circumstances likely to give rise to justifiable doubts as to the person’s impartiality or independence. (2) An arbitrator, from the time of the arbitrator’s appointment and throughout the arbitral proceedings, must without delay disclose any

circumstances of the kind referred to in subsection (1) to the parties unless they have already been informed of them by the arbitrator. (3) An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence, or if the arbitrator does not possess qualifications agreed to by the parties. (4) A party may challenge an arbitrator appointed by the party, or in whose appointment the party has participated, only for reasons of which the party becomes aware after the appointment has been made. (5) For the purposes of subsection (1), there are justifiable doubts as to the impartiality or independence of a person approached in connection with a possible appointment as arbitrator only if there is a real danger of bias on the part of the person in conducting the arbitration. [page 96] (6) For the purposes of subsection (3), there are justifiable doubts as to the impartiality or independence of an arbitrator only if there is a real danger of bias on the part of the arbitrator in conducting the arbitration. Note This section (other than subsections (5) and (6)) is substantially the same as Art 12 of the Model Law.

ANNOTATIONS [s 12.5] Subsection (1) When a possible arbitrator is approached to become an arbitrator they must disclose any circumstances likely to give rise to doubts as to their impartiality or independence. This section helps to prevent a retired professional, who has had their impartiality questioned in previous arbitrations, from accepting appointment without giving full disclosure. (See: Gas & Fuel Corporation of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors Ltd [1978] VR 385 per Marks J and Re JRL: Ex parte CJL (1986) 161 CLR 342 at 351–2.) [s 12.10] Subsection (2) This section places the onus on an arbitrator to make full disclosure and to continue to make full disclosure. See also s 13(3) where a party must act within 15 days of becoming aware of the composition of the tribunal or of the circumstances giving rise to the basis for challenge of the

arbitrator’s appointment. [s 12.15] Subsection (3) This subsection sets out the limited grounds on which an arbitrator can be challenged under the Act. Circumstances must exist giving rise to justifiable doubts as to the arbitrator’s impartiality or independence, or if the arbitrator does not possess qualifications agreed to by the parties. Subsection (6) applies to subs (3). Justifiable doubts only arise if there is a real danger of bias on the part of the arbitrator in conducting the arbitration. [s 12.20] Subsection (4) A party may only challenge the appointment of an arbitrator, even if they have participated in the appointment of that arbitrator only for reasons that they have become aware after the appointment. A party cannot make an appointment or join in an appointment of an arbitrator knowing of a potential problem and later seek to rely on that problem as a ground for challenge. [s 12.25] Grounds of challenge to arbitrators Justifiable doubts as to the impartiality of the arbitrator giving rise to a real danger of bias are required under subss (5) and (6). The “real danger” test is from R v Gough [1993] AC 646; Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451; [2000] 1 All ER 65. In adopting this test the court was emphasising that “the court is thinking in terms of possibility rather than probability of bias”. In R v Gough, above, at 661, Lord Goff stated: The test as so stated, gives sufficient effect, in cases of apparent bias, to the principle that justice must manifestly be seen to be done, and it is unnecessary, in my opinion, to have recourse to a test based on mere suspicion, or even reasonable suspicion, for that purpose. He later added: I think it possible and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or other members of inferior tribunals, or with jurors, or with arbitrators … [s 12.30] Subsection (6) applies to subs (3) There has to be a real danger of bias on the part of the arbitrator in conducting the arbitration to give rise to the justifiable doubts required under subs (3). This subsection brings apprehended bias into the Act “if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is to decide” (Ebner v Official Trustee in Bankruptcy

(2001) 205 CLR 337 at 344).

[page 97]

Challenge procedure 13 (cf Model Law Art 13)

(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to subsection (4). (2) Failing such agreement, a party who intends to challenge an arbitrator must, within 15 days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in section 12(3), send a written statement of the reasons for the challenge to the arbitral tribunal. (3) Unless the challenged arbitrator withdraws from office or the other party agrees to the challenge, the arbitral tribunal must decide on the challenge. (4) If a challenge under any procedure agreed on by the parties or under the procedure of subsections (2) and (3) is not successful, the challenging party may request, within 30 days after having received notice of the decision rejecting the challenge, the Court to decide on the challenge. (5) A decision of the Court under subsection (4) that is within the limits of the authority of the Court is final. (6) While a request under subsection (4) is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award. Note Section 13 (other than subsection (5)) is substantially the same as Art 13 of the Model Law. Subsection (5) makes it clear that, although a decision of the Court is generally final, review of a decision of the Court that is not made within the limits of its powers and functions is not precluded.

ANNOTATIONS [s 13.5] Parties free to agree on procedure for challenge

The parties are

given autonomy to agree on the procedure for a challenge but this is subject to subs (4). [s 13.10] Subsection (2): If no procedure agreed to (s 13(2)) If no agreement can be reached then the party intending to challenge the arbitrator or arbitrators must, within 15 days after becoming aware of the composition of the tribunal or after becoming aware of any of the circumstances referred to in s 12(3), send a written statement of the reasons for the challenge to the arbitral tribunal. [s 13.15] Subsection (3) The arbitral tribunal “must” decide on the challenge unless the challenged arbitrator withdraws from the office or the other party agrees to the challenge. [s 13.20] Subsection (4) If the challenge is not successful either under the procedure agreed to between the parties or under subs (2) and (3) the challenging party may request, within 30 days after having received the notice of the decision rejecting the challenge, for the court to decide on the challenge. [s 13.25] Subsection (5) In most cases the decision of the court on the challenge is final. An appeal can be taken of a decision not within the powers (ultra vires) and functions of the court. [s 13.30] Subsection (6) While a challenge is underway under subs (4) the tribunal can continue with the proceedings and make an award. [s 13.35] An appeal An appeal against a single judge is allowed if the requirements of subs (5) are met.

[page 98]

Failure or impossibility to act 14 (cf Model Law Art 14)

(1) If an arbitrator becomes in law or in fact unable to perform the arbitrator’s functions or for other reasons fails to act without undue delay, the arbitrator’s mandate terminates if the arbitrator withdraws from office or if the parties agree

on the termination. (2) Otherwise, if a controversy remains concerning any of these grounds, any party may request the Court to decide on the termination of the mandate. (3) A decision of the Court under subsection (2) that is within the limits of the authority of the Court is final. (4) If, under this section or section 13(3), an arbitrator withdraws from office or a party agrees to the termination of the mandate of an arbitrator, this does not imply acceptance of the validity of any ground referred to in this section or section 12(3). Note Section 14 (other than subsection (3)) is substantially the same as Art 14 of the Model Law. Subsection (3) makes it clear that, although a decision of the Court is generally final, review of a decision of the Court that is not made within the limits of its powers and functions is not precluded.

ANNOTATIONS [s 14.5] Failure or impossibility to act Many circumstances both personal and professional can give rise to the failure or impossibility of the arbitrator to act. If these circumstances arise then this section provides a way out of a very difficult situation. [s 14.10] Subsection (1) If for any reason of fact or law the arbitrator is: 1. unable to perform the arbitrator’s functions; or 2. for other reasons fails to act without undue delay; then the arbitrators mandate to act ceases if the arbitrator withdraws from office or the parties agree to terminate the arbitrator. (See also: Paramount Object, s 1AC and the comments thereon.) [s 14.15] Subsection (2) If the parties and the arbitrator cannot resolve the difficulties arising from failure or impossibility to act then a party can request the court to decide on the termination of the arbitrator’s mandate. [s 14.20] Subsection (3) A decision of the court on the issue of failure or impossibility to act is final unless it is beyond the powers (ultra vires) and functions of the court. [s 14.25] Subsection (4) If the arbitrator agrees to withdraw from office or the parties agree on a termination of an arbitrator’s mandate then this cannot be

implied or taken as acceptance of the validity of the grounds referred to in s 14 or s 12(3).

Appointment of substitute arbitrator 15 (cf Model Law Art 15) Where the mandate of an arbitrator terminates under section 13 or 14 or because of the arbitrator’s withdrawal from office for any other reason or because of the revocation of the arbitrator’s mandate by agreement of the parties or in any other case of [page 99] termination of the arbitrator’s mandate, a substitute arbitrator must be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.

ANNOTATIONS [s 15.5] Appointment of substitute arbitrator The substitute arbitrator or arbitrators are appointed under the same rules that apply to the appointment of the original arbitrator or arbitrators. This section should be read together with s 11.

PART 4 — JURISDICTION OF ARBITRAL TRIBUNAL

Competence of arbitral tribunal to rule on its jurisdiction

16 (cf Model Law Art 16)

(1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. (2) For that purpose, an arbitration clause which forms part of a contract is to be treated as an agreement independent of the other terms of the contract. (3) A decision by the arbitral tribunal that the contract is null and void does not of itself entail the invalidity of the arbitration clause. Note The Model Law provides that such a decision does not ipso jure entail the invalidity of the arbitration clause. (4) A plea that the arbitral tribunal does not have jurisdiction must be raised not later than the submission of the statement of defence. (5) A party is not precluded from raising such a plea by the fact that the party has appointed, or participated in the appointment of, an arbitrator. (6) A plea that the arbitral tribunal is exceeding the scope of its authority must be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. (7) The arbitral tribunal may, in the case of a plea referred to in subsection (4) or (6), admit a later plea if it considers the delay justified. (8) The arbitral tribunal may rule on a plea referred to in subsection (4) or (6) either as a preliminary question or in an award on the merits. (9) If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within 30 days after having received notice of that ruling, the Court to decide the matter. (10) A decision of the Court under subsection (9) that is within the limits of the authority of the Court is final. (11) While a request under subsection (9) is pending, the arbitral tribunal may continue the arbitral proceedings and make an award. Note Section 16 (other than subsection (10)) is substantially the same as Art 16 of the Model Law. Subsection (10) makes it clear that, although a decision of the Court is generally final, review of a decision of the Court that is not made within the limits of its powers and functions is not precluded. [page 100]

ANNOTATIONS [s 16.5] Tribunal ruling on its jurisdiction Under subs (1) the arbitral tribunal can rule on its own jurisdiction. This is known as the “competence– competence” principle that is referred to in International Arbitration as the kompetenz-kompetenz or compétence-compétence principle. (See Lord Mance in Dallah Real Estate and Tourism Holding Company v Ministry of Religious Affairs, Government of Pakistan [2011] 1 AC 763; [2011] 1 All ER 485; [2010] UKSC 46 at [12] (Dallah); and Lord Collins at [72]–[74] and [92]; see also [98], [104] and [126]; see also China Minmetals Materials Import and Export Co Ltd v Chei Mei Corp, 334 F 3d 274 (2003) where after discussing this doctrine the court concluded at 288, citing Park, “Determining Arbitral Jurisdiction: Allocation of Tasks Between Courts and Arbitrators” (1997) 8 Am Rev Int Arb 133, 140–2 that “it appears that every country adhering to the competencecompetence principle allows some form of judicial review of the arbitrator’s jurisdictional decision where the party seeking to avoid enforcement of an award argues that no valid arbitration agreement ever existed”. The court said (ibid): “After all, a contract cannot give an arbitral body any power, much less the power to determine its own jurisdiction, if the parties never entered into it”. In Dallah, above at [22], Lord Mance set out, with approval, the following passage from Fouchard, Galliard and Goldman’s International Commercial Arbitration, Klower, (1999) at [659]: Even today the competence-competence principle is all too often interpreted as empowering the arbitrators to be the sole judges of their jurisdiction. That would be neither logical nor acceptable. In fact, the real purpose of the rule is in no way to leave the question of the arbitrators’ jurisdiction in the hands of the arbitrators alone. Their jurisdiction must instead be reviewed by the courts if an action is brought to set aside or enforce the award. In Dallah, Lord Collins, at [79]–[83], expressed similar views to Lord Mance as did Lord Saville at [158], though more briefly. The issue of competence–competence arose in Altain Khuder LLC v IMC Mining Inc (2011) 276 ALR 733; [2011] VSC 1. The case concerned the application for enforcement of a foreign arbitral award made in Ulaanbaatar City, Mongolia (the Award). The Second Defendant sought to re-litigate and revisit issues which are the subject of the arbitration. Croft J following the above law, the Rules of the Victorian Supreme Court, the Victorian Supreme Court’s Practice Note No 2 of 2010 (Arbitration Business), the “pro-enforcement policy

introduced by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York 1958 (New York Convention); and the UNCITRAL Model Law on International Commercial Arbitration (1985, as amended in 2006) held that the Applicant was not entitled to venture further towards reconsideration of the findings, substantial or procedural of the arbitral tribunal. (For further readings see: IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (2011) 38 VR 303; 282 ALR 717; [2011] VSCA 248; BC201106268). [s 16.10] Arbitration clause treated as an agreement independent of the other terms of the contract Under subs (2) the arbitration clause is regarded as “separate” from the other terms of the contract. In subs (2) the separability doctrine applies. [s 16.15] Subsection (3) “of itself” The words “of itself” replace the words ipso jure in the Model Law Art 16(1). Without adopting the Model Law this is the best and closest form of drafting to reflect the Model Law’s emphasis on the independence of the arbitration agreement from the contract and to preserve the concept of separability. [s 16.20] Time limits in subss (4) and (6) Parties must raise objections to jurisdiction at the earliest possible opportunity. [s 16.25] Subsection (9) This subsection was invoked in Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd (2011) 279 ALR 772; [2011] NSWSC 268 per Hammerschlag J in which an

[page 101] arbitrator had ruled that he had jurisdiction to hear and determine disputes concerning patents and patent applications. Larkden sought an order under s 16(9) that the arbitrator did not have jurisdiction over any claims or issues. It was claimed that some of the matters were not arbitral as they concerned matters exclusively within the jurisdiction of the Commissioner of Patents or the Federal Court. The issue was whether the Notice of Dispute called for the arbitrator to exercise, or to impinge upon the exercise of, powers reserved to the Commissioner of Patents and the Federal Court? Hammerschlag J held that the notice of dispute did not impinge upon the

exercise of the powers reserved to the Commissioner of Patents. The judge held at [70]–[71]: [70] First, neither the Notice of Dispute nor the pleadings in the arbitration call for the arbitrator to make any declaration as to eligibility or to grant a patent. [71] Second, the arbitrator is not (nor could he be) called upon, to resolve anything more than the dispute which has arisen between Larkden and Lloyd as to their respective rights and obligations under cl 5.4(A) of the Licensing Agreement in the events that have occurred. At [75] the judge continued: Thirdly, arbitral determination of issues 2.1 and 2.2 in the Notice of Dispute that the Solfast and Ausra patent applications either embody or do not embody improvements or modifications to the Technologies which Lloyd must either allow or is not obliged to allow Larkden to own (as the case may be) will not, nor could it, bind the Commissioner of Patents or the Federal Court to declare who, as between Larkden, Solfast or Ausra (or anyone else), is or is not an eligible person under the Patents Act or who, as between them, should or should not be granted any patent. The judge concluded at [79]–[81], [83]: [79] Fourth, the arbitrator cannot make a declaration which binds third parties or the public at large. But there is no reason why the arbitrator does not have the authority to give either party such relief as would be available to it in a court of law having jurisdiction with respect to the subject matter including, in this case, a determination to clarity of the petition contended for by Lloyd, or for that matter Larkden; see Francis Travel Marketing Pty Ltd v Virgin Airlines Ltd (1996) 39 NSWLR 160 at 166–7; IBM Australia Ltd v National Distribution Systems Ltd (1991) 22 NSWLR 466. Whether any relief should be granted and, if so, in what form is a matter for the arbitrator. [80] Fifth, because the dispute remains a two-party one there is no impingement upon the powers and functions reserved to the Commissioner of Patents or the Federal Court; there is no or no sufficient public interest in the resolution of issues 2.12 and 2.6 to make that resolution inappropriate for private arbitral determination.

[81] Additionally, this conclusion accords with the judicial policy of facilitating and promoting arbitration and giving full effect to an agreement by the parties that the disputes will be resolved by that mechanism. [83] The result is that I determine that the arbitrator has jurisdiction to determine issues 2.1 to 2.6 in the Notice of Dispute and to grant the relief claimed in 4.2 to 4.7 of the Statement of Claim in respect of them. [s 16.30] Section 16 substantially the same as Art 16 of the Model Law Section 16 (other than subs (10)) is substantially the same as Art 16 of the Model Law. Subsection (10) makes it clear that, although a decision of the court is generally final, review of a decision of the court that is not made within the limits of its powers and functions is not precluded. (See: similar notes to ss 13 and 14 and the annotations on those sections.)

[page 102]

PART 4A — INTERIM MEASURES DIVISION 1 — INTERIM MEASURES

Power of arbitral tribunal to order interim measures 17 (cf Model Law Art 17)

(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures. (2) An interim measure is any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to— (a) maintain or restore the status quo pending determination of the

dispute; or (b) take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself; or (c) provide a means of preserving assets out of which a subsequent award may be satisfied; or (d) preserve evidence that may be relevant and material to the resolution of the dispute. (3) Without limiting subsection (2), the arbitral tribunal may make orders with respect to any of the following— (a) security for costs; (b) discovery of documents and interrogatories; (c) giving of evidence by affidavit; (d) the inspection of any property which is or forms part of the subjectmatter of the dispute; (e) the taking of photographs of any property which is or forms part of the subject-matter of the dispute; (f) samples to be taken from, or any observation to be made of or experiment conducted on, any property which is or forms part of the subject-matter of the dispute; (g) dividing, recording and strictly enforcing the time allocated for a hearing between the parties (a stop clock arbitration). Note Subsections (1) and (2) are substantially the same as Art 17 of the Model Law. There is no equivalent subsection (3) in the Model Law.

ANNOTATIONS [s 17.5] General Interim measures of protection are critical to any form of dispute resolution, including commercial arbitration. Interim measures of protection are remedies of a temporary nature aimed at preserving the rights of a party or parties to arbitration pending the final resolution of the dispute. Interim measures do not seek to determine the substantive dispute between the parties, but rather seek to alleviate the risk of a party or parties to an arbitration taking steps to negate or frustrate an adverse arbitral award. Interim measures of protection generally involve the protection of the subject matter of the arbitral proceedings. However, they can extend beyond the subject matter of the proceedings, and include the perseveration of evidence relevant to

the determination of the substantive dispute which is the subject of arbitration.

[page 103] Interim measures of protection are controversial in arbitration. The process of arbitration and the jurisdiction of an arbitral tribunal depend on the consensus of the parties to refer disputes to arbitration. In Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66, Martin CJ (Buss JA agreeing) cited the English case of Cetelem SA v Roust Holdings [2005] 4 All ER 52; [2005] ECWA Civ 618 at [96] which held that the power to make interim orders for the purpose of arbitral proceedings should be exercised sparingly. The English court explained that interim measures should only be exercised “in circumstances in which such orders [are] effectively the only means by which the position of a party could be protected until an arbitration award was convened”. Additional supporting cases are cited at [97]–[99]. Section 17 of the Act incorporates Art 17 of the Model Law as adopted by UNCITRAL at its 39th session in 2006. (See: Croft, Kee and Waincymer, A Guide to the UNCITRAL Arbitration Rules, Cambridge University Press, Melbourne, 2013, p 266 on Article 26 – Interim Measures.) [s 17.10] Arbitral tribunal has power to order interim measures “unless otherwise agreed” Section 17(1) empowers an arbitral tribunal to make orders for interim measures “unless otherwise agreed by the parties”. The Act assumes that the parties to an arbitration agreement have agreed to opt in to the interim measures regime under the Act in the absence of any agreement to the contrary. In the absence of an agreement between the parties to exclude the operation of the interim measures regime, a party or parties to an arbitration governed by the Act may seek orders for interim measures from an arbitral tribunal. However, the Act permits parties to an arbitration agreement to agree to exclude the jurisdiction of an arbitral tribunal to order interim measures and opt out of the interim measures regime. The parties may agree to exclude the operation of the interim measures regime either when concluding the arbitration agreement, or after the agreement has been entered into. All parties to the arbitration agreement must agree to opt out of the interim regime for this

agreement to be effective. Parties should be wary of an arbitration clause that “opts-out” of s 17 as this section was not found in the former Uniform Arbitration Acts. [s 17.15] The definition of “interim measures” The definition of “interim measures” is found in s 17(2). The provision provides that an interim measure is: an order of a temporary nature (which is “interim” as distinct to “final”); in the form of an award or another form; made prior to the issuance of the award by which the dispute is finally decided. The form of the interim measure does not affect its enforcement. Enforcement is aided by ss 17H and 17I. The types of interim measures that may be made by an arbitral tribunal are not exhaustively defined by the Act. An arbitral tribunal has the discretion to make any order it considers appropriate to require a party to: maintain or restore the status quo pending the determination of the dispute; prevent or refrain from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process; preserve assets out of which a subsequent award may be satisfied; or preserve evidence that may be relevant and material to the resolution of the dispute. This expanded definition of “interim measures” does not attempt to exhaustively define the many different types of interim measures which may be sought from an arbitral tribunal to assist and facilitate the arbitral process. Given the vast range of possible situations which may arise in the facts and circumstances of a particular place renders the task of defining individual types of interim measures available practically impossible. For these reasons, the interim measures which can be made by an arbitral tribunal are limited by reference to four broad purposes:

[page 104] 1. Measures aimed at preserving the status quo The maintenance, preservation or restoration of the status quo between two or

more parties can be critical to effective arbitration. Commercial disputes can adversely affect the reputation, financial health and business opportunities of parties relating to those disputes. An order requiring a party to maintain the status quo can impose positive and negative obligations on a party, depending on what the status quo is. For example, a party who has contracted with another party to supply goods or services under an exclusive agreement may be ordered to maintain or preserve the status quo by continuing to comply with the terms of the exclusive agreement until such time as the disputed subject of arbitration is determined. On the other hand, if one party (the subject of the exclusive agreement) supplies a third party with goods or services in breach of the agreement that party might be ordered to cease supplying the third party in order to maintain the status quo between the contracting parties. An order requiring a party to maintain or preserve the status quo is preventative in nature, and effectively freezes the relationship in existence between the parties until the determination of substantive dispute between the parties. Such an order implies that the status quo sought to be maintained and preserved, is that which is in existence at the point in time the application is made. An order requiring a party to maintain or preserve the status quo is made in circumstances where the applicant believes on reasonable grounds that the status quo might chance pending the outcome of the arbitration. An order requiring a party to maintain or preserve the status quo is different to an order requiring a party to restore the status quo. An order requiring a party to restore the status quo is reactionary in nature, and effectively revives the status quo which previously existed between the parties at a point in time, and freezes that relationship pending the determination of the dispute. Such an order implies that the status quo between the parties has in fact changed over a period of time. An arbitral tribunal will be required to consider the temporal period in which the status quo has changed, and how the substance of the relationship or status quo has changed in that period of time. 2. Measures aimed at requiring a party to prevent, or refraining a party from taking, action that is likely to cause current or imminent harm or prejudice to the arbitral process A party to commercial arbitration under the Act can seek an interim order which positively requires another party to prevent, or requires another party from engaging in conduct, which is likely to either: cause current or imminent harm to the arbitral process; or cause prejudice to the arbitral process.

These types of interim measures are designed to assist and protect the integrity of the arbitral process. On an application for such an order, an arbitral tribunal will be required to consider the facts and circumstances of the particular conduct which is the subject of the application, and assess how that conduct is likely to cause current or imminent harm to the arbitral process, or prejudice to the arbitral process. 3. Measures aimed at preserving assets out of which a subsequent award may be satisfied The financial consequences of an adverse arbitral award may be extensive on a party bound by an arbitral agreement. To alleviate the economic risk of an adverse award, a recalcitrant party to arbitration might seek to dissipate assets or transfer funds for the purpose of avoiding the consequences of an adverse award. The Act permits a party to a commercial arbitration to apply for an interim order requiring an opposing party to preserve assets out of which a final and binding arbitral award may be satisfied. An order of this nature might preserve assets of another for the purpose of satisfying not only a substantive award (eg damages), but also for the purpose of satisfying an adverse costs order which is made by the arbitral tribunal. Orders might include the sequestration of assets, the payment of disputed funds into escrow or another secured fund pending the outcome of the

[page 105] dispute, or any other measure designed to facilitate the later enforcement of an award. Importantly the Act expressly provides that an arbitral tribunal can make separate orders for security for costs (s 17(3)). 4. Measures relating to the preservation of evidence Evidence is fundamental to the final determination of an arbitral dispute (Redfern and Hunter, Law and Practice of International Commercial Arbitration, 4th ed, Oxford University Press, 2004, p 339). Where there is a risk that evidence may be lost or destroyed, either intentionally or otherwise by a party to an arbitral dispute, the arbitral process risks being compromised. A party to a commercial arbitration under the Act can seek an interim order from an arbitral tribunal requiring another party to take steps to preserve evidence. This may include orders for inspection, samples or detention of evidence to take place for the purpose of documenting and preserving evidence.

A non-exhaustive list of the types of orders available to an arbitral tribunal to facilitate an order requiring a party to preserve evidence is contained in s 17(3) of the Act. (See: [s 17.20]). It has been debated whether interim measures in relation to the preservation of evidence might permit an arbitral tribunal to make orders for the attendance of witnesses. On the basis that this provision extends to the “preservation” of evidence, it may be beyond the jurisdiction of the arbitral tribunal to make orders for the attendance of witnesses. (See: K Hickie “The Enforceability of Interim Measures of Protection Granted by Arbitral Tribunals Outside the Seat of Arbitration — A New Approach” (2008) 12(2) VJ 221.) [s 17.20] Types of interim measures which may be made — s 17(3) While the Act does not expressly set out the types of interim measures which may be ordered by an arbitral tribunal, the Act does provide a non-exhaustive list of orders which an arbitral tribunal can make. The orders which are listed in this provision may be made in addition to and compliment other orders made for one of the four purposes above. Orders may be made in respect of: security for costs; discovery of documents and interrogatories; giving of evidence by affidavit; inspection of any property which is or forms part of the subject matter of the dispute taking photographs of any property which is or forms part of the subject-matter of the dispute; samples to be taken from, or any observation to be made of or experiment conducted on, any property which is or forms part of the subject-matter of the dispute; dividing, recording and strictly enforcing the time allocated for a hearing between the parties (a stop clock arbitration). The types of orders which are expressly set out in this provision can be grouped into three broad categories: 1. interim orders facilitating the payment of security for costs; 2. interim orders which facilitate the preservation of evidence; and 3. interim orders which assist the preparation of the dispute for arbitration. Interim orders for the payment of security for costs The Act expressly provides that orders for security for costs may be made by an arbitral tribunal. Arbitral rules which govern a domestic commercial

arbitration under the Act may outline rules for the requirements that must be satisfied for the security for costs. An order for security for costs may be made in addition to an order requiring a party to preserve assets out of which a subsequent award may be satisfied. Interim orders that facilitate the preservation of evidence The interim orders available to an arbitral tribunal which facilitate and assist the preservation of evidence include orders for the inspection, photography, sampling and observation of property. Interim orders may also be made in respect of discovery to assist in the provision of relevant

[page 106] evidence between the parties. An arbitral tribunal has the power to make orders on any terms it thinks fit for the purpose of preserving evidence for the purpose of determining the substantive dispute between the parties. Interim orders that assist the preparation of the proceeding for hearing The types of orders that assist the preparation of the arbitral dispute for hearing include orders in relation to the giving of evidence by affidavit, the provision of interrogatories and discovery, and the time allocated for the substantive hearing for the parties. Orders of this nature may be viewed as general orders which assist preparations for the hearing of the substantive dispute between the parties. This is a significant and welcome power that was missing from the power under s 47 of the Commercial Arbitration Acts. In Nearmap Ltd v Spookfish Pty Ltd [2014] NSWSC 1790; BC201410719, Bergin CJ in Eq said (at [76]) that an arbitral tribunal had no power to order preliminary discovery under the CAA. Her Honour said: [76] The “discovery” referred to in s 17(3) of the Act is in respect of the “interim measure” that the arbitral tribunal may grant “at any time prior to the issuance of the award by which the dispute is finally decided”. It is discovery relevant to the issues between the parties in respect of any application for the quasi-injunctive relief set out in s 17(2) of the Act. The interim measure referred to in s 17(2)(d) of the preservation of “evidence that may be relevant and material to the resolution of the dispute” is not a vehicle for preliminary discovery. It is to secure evidence in respect of which a party to an already

existing dispute of which the arbitrator is seized, may entertain fears of destruction or dissipation in the absence of such an interim measure. It is not a power to be exercised to provide such “evidence” to an applicant to decide whether they should commence proceedings against the person the subject of the “interim measure”. However, arbitration rules will usually provide that an arbitral tribunal does have, in effect, power to grant directions in relation to preliminary discovery. For example, see Article 27(3) of the UNCITRAL Arbitration Rules (as revised in 2010) which provides that: At any time during the arbitral proceedings the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within such a period of time as the arbitral tribunal shall determine. (See: K Hickie “The Enforceability of Interim Measures of Protection Granted by Arbitral Tribunals Outside the Seat of Arbitration — A New Approach” (2008) 12(2) VJ 221.) [s 17.25] Wider orders for interim measures available compared to those available under the former Commercial Arbitration Acts Formerly, s 47 of the Commercial Arbitration Acts gave a wide power to the court to grant interlocutory orders, similar to s 12(6) of the Arbitration Act 1950 (UK). (See: Commonwealth v Cockatoo Dockyard Pty Ltd (1994) 35 NSWLR 704 at 712, per Rolfe J but no power for the recognition or enforcement of interim measures.) Articles 17B and 17C of the Model Law permit the making of interim measures on an ex parte basis. Importantly, the uniform domestic commercial arbitration acts (including this Act), and the International Arbitration Act 1974 (Cth) (s 18B), which governs international commercial arbitration, do not incorporate the Model Law provisions allowing for or permitting the making of ex parte interim measures. It was considered that provisions enabling the granting of ex parte interim measures were contrary to the consensual nature of arbitration. [s 17.30] Ex parte provisions omitted The Model Law Arts 17B and 17C that allow for the making of ex parte preliminary orders were not included in either Pt 4A of the domestic Arbitration Acts or the amendments to the International Arbitration Act 1974 (Cth) as they were thought to be contrary to the consensual nature of arbitration.

[page 107]

Conditions for granting interim measures 17A (cf Model Law Art 17A)

(1) The party requesting an interim measure under section 17(2)(a), (b) or (c) must satisfy the arbitral tribunal that— (a) harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and that harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and (b) there is a reasonable possibility that the requesting party will succeed on the merits of the claim. (2) The determination on the possibility referred to in subsection (1)(b) does not affect the discretion of the arbitral tribunal in making any subsequent determination. (3) With regard to a request for an interim measure under section 17(2)(d), the requirements in subsection (1)(a) and subsection (1)(b) and subsection (2) apply only to the extent the arbitral tribunal considers appropriate.

ANNOTATIONS [s 17A.5] Differences in drafting to Art 17A of the Model Law This section is based on Art 17A of the Model Law with one alteration. In this Act, subs (1)(b) has been divided into two parts para (b) and subs (2) whereas in the Model Act Art 17A(1)(b) consists of two sentences that comprise subss (1)(b) and (2) of this Act. The change separates out the powers of the tribunal and the court and may add clarity. Furthermore, the change may reflect different drafting standards. Subsection (3) is identical to the Art 17A(2) of the Model Law. The section is drafted to prevent applications for interim measures made for frivolous purposes or for delay. [s 17A.10] Conditions precedent to the granting of interim measures Section 17A sets out the conditions precedent required to be established by a

party seeking an order or orders for interim measures from an arbitral tribunal. An application for an interim measure under the Act must be made on notice to all parties to the arbitration. This permits all parties to the arbitration the opportunity to be heard in relation to an application for an interim measure. A party seeking an order for an interim measure has the burden of establishing the following requirements. An applicant must establish, on the balance of probabilities, that: 1. Harm is likely to result if the interim measure is not ordered (“the likely harm”); 2. The likely harm is not adequately reparable by an award of damages; 3. The likely harm substantially outweighs the harm that is likely to result to the party against whom the interim measure is directed if the measure is granted; 4. There is a reasonable possibility that the requesting party (the party making the application for the interim measure) will succeed on the merits of the claim. There is no formal requirement for a party making an application for an interim measure to give an undertaking as to costs or damages in the event the interim measure is inappropriate. Section 17G of the Act provides that a party requesting an interim measure is liable for any costs and damages which is caused by an interim measure which an arbitral tribunal finds should not have been granted in the circumstances. Despite there being no requirement for an enforceable undertaking to be given in respect of any costs and damages to make good that requirement, an arbitral tribunal does have the power to require appropriate security be provided in respect of any interim measure ordered. This may extend to the payment of security on account of costs and damages under s 17E of the Act. (See: American Cynamid Co v Ethicon Ltd [1975] AC 396; [1975] All ER 504.)

[page 108] 1. Harm likely to result In order to obtain an order for an interim measure or measures, the party applying for the order must establish that harm is likely to result if the interim measure is not ordered. This requirement introduces two elements; a reasonable

belief of harm, and a reasonable belief the risk of harm is likely to result if the interim measure is not ordered. The first element is a reasonable belief of harm in the circumstances of the case. A party may have a reasonable belief of harm where there is an imminent danger or risk of serious prejudice to the legal interests of the party seeking the interim measure. A belief of harm may also arise because of delay in the determination of the substantive claim between the parties. The second element is a reasonable belief the risk of harm is likely to result if the interim measure is not ordered. The belief that a risk of harm is likely to result will need to be reasonably held by reference to the facts and circumstances of the case. It will not be necessary to establish that harm has actually resulted (although harm may have resulted from the change in the status quo between the parties). It will not be sufficient for the party making the application to establish a mere possibility of harm resulting. The harm must relate to one of the four categories of interim measures available under the Act. For example, there may be a risk of the status quo changing, a risk that assets might be dissipated in advance of the final award, or a risk of evidence being destroyed or tampered with). 2. Likely harm would not be adequately reparable by an award of damages In order to obtain an order for an interim measure or measures, it must be established that damages would not adequately repair any likely harm caused. This imposes a requirement on the arbitral tribunal to consider the gravity of the likely harm that would result if the interim measure is not ordered. The applicant will need to establish that the risk of harm is of a kind that any resulting damage will not be compensable by a monetary award of damages. 3. Likely harm must substantially outweigh any harm caused to party against whom the interim order is made The requirement that the risk of harm must substantially outweigh the harm caused to the party against whom the order is sought requires the arbitral tribunal to balance the competing interests of the parties when considering whether to grant the order sought. In order to grant and application for an interim measure, the arbitral tribunal must be satisfied that the effect of granting the interim measure sought on the party seeking the order (the prevention the likely harm claimed) will substantially outweigh any prejudicial effect on the party against whom the interim measure is made. If the risk of likely harm is not substantially outweighed by the harm caused to the other party, then the order cannot be made by the arbitral tribunal. The greater the prejudicial effect an interim measure is on a party against whom it is

made, the more likely the arbitral tribunal will refuse to grant the order sought. In addition, the greater the prejudicial effect of an interim measure, the greater the liability for costs and damages could be for the applicant in the event the arbitral tribunal determines that the interim measure should not have been ordered. 4. There is a reasonable possibility the applicant will succeed in its claim The arbitral tribunal must be satisfied that there is a reasonable possibility that the party seeking the order for the interim measure will succeed in its claim. This element requires an arbitral tribunal to examine whether the applicant has a prima facie case. The arbitral tribunal is therefore required to undertake a preliminary assessment of the merits of the claim and assess whether there is a reasonable possibility that the applicant will be successful. The tribunal is not required to undertake an in depth assessment of the merits of the case. It may be very difficult for an arbitral tribunal to determine the possibility of success before the substantive hearing of the dispute. This requirement helps arbitral tribunals avoid entertaining applications for interim measures in circumstances where the claim is frivolous, vexatious or an abuse of process. Lower conditions may be applied in respect of interim measures relating to the preservation of evidence In relation to orders in respect of the preservation of evidence, the threshold conditions to be satisfied are lower. The provision provides that in relation to an application for an interim measure

[page 109] under s 17(2)(d) (preservation of evidence), the conditions only apply to the extent the arbitral tribunal considers appropriate. Arbitral tribunals have a flexible discretion to require these conditions to be satisfied, having regard to the facts and circumstances of a particular case, in order to preserve the integrity of its own processes. (See: K Hickie “The Enforceability of Interim Measures of Protection Granted by Arbitral Tribunals Outside the Seat of Arbitration — A New Approach” (2008) 12(2) VJ 221.)

DIVISION 2 — PRELIMINARY ORDERS

[omitted] 17B Note Art 17B of the Model Law, which provides for ex parte requests for interim measures together with applications for preliminary orders directing parties not to frustrate the interim measures, has been omitted.

ANNOTATIONS [s 17B.5] Omission of Model Law Article 17B Article 17B of the Model Law has been omitted from the Act. There is no provision in the Act enabling an arbitral tribunal to order interim measure of protection on an ex parte basis, nor any provision enabling an arbitral tribunal to direct parties not to frustrate the interim measures. In domestic arbitrations there is no need to have a provision allowing for ex parte requests for interim measures together with applications for preliminary orders directing parties not to frustrate the interim measures.

[omitted] 17C Note Art 17C of the Model Law, which contains safeguards for the party against whom a preliminary order is directed under Art 17B, is omitted as a consequence of the omission of Art 17B.

ANNOTATIONS [s 17C.5] Omission of Article 17C The omission of Art 17B of the Model Law from the provision of the Act has resulted in the consequential omission of Art 17C of the Model Law from the Act.

DIVISION 3 — PROVISIONS APPLICABLE TO INTERIM MEASURES

Modification, suspension, termination 17D (cf Model Law Art 17D)

The arbitral tribunal may modify, suspend or terminate an interim measure it has granted, on application of any party or, in exceptional circumstances and on prior notice to the parties, on the arbitral tribunal’s own initiative. [page 110] Note This section is substantially the same as Art 17D of the Model Law but contains no reference to preliminary orders as a consequence of this Act not including equivalents to Arts 17B and 17C of the Model Law.

ANNOTATIONS [s 17D.5] Power to modify, suspend or terminate an interim measure An arbitral tribunal has the power to modify, suspend or terminate any interim measure it has granted. An arbitral tribunal may modify, suspend or terminate an interim measure: on the application of any party to the arbitration; or on its own motion if there are “exceptional circumstances” which require the modification, suspension or termination of the interim measure, and the arbitral tribunal has given prior notice to the parties. Exceptional circumstances must be judged by reference to the facts and circumstances of the particular case. The requirement of the arbitral tribunal to provide prior notice enables the parties to the arbitration to be heard on the matter. Given the consensual nature of arbitration, the power of an arbitral tribunal to modify, suspend or terminate an interim measure on its own motion is likely to be exercised in only exceptional cases. The power of an arbitral tribunal to modify, suspend or terminate an interim

measure under this provision does not extend to empowering the tribunal to modify, suspend or terminate interim measures granted by a court. Note: Preliminary orders (Art 17C of the Model Law) has been excluded from the Act. (See: s 17C.)

Provision of security 17E (cf Model Law Art 17E)

(1) The arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure. (2) [omitted] Note Subsection (1) is the same as Art 17E(1) of the Model Law. Art 17E(2) is omitted as a consequence of this Act not including equivalents to Arts 17B and 17C of the Model Law.

ANNOTATIONS [s 17E.5] Provision of security As a condition of granting an interim measure of protection, the arbitral tribunal has the discretion to require appropriate security in connection with that measure. By way of example, an arbitral tribunal may require appropriate funds be paid by the applicant into escrow or a secure account as security for costs or damages which might flow from the granting of the interim measure in the event it later determines that the interim measure should not have been made. One basis for the requirement for security is that provisions in relation to the making of preliminary orders were omitted. (See ss 17B and 17C.) The arbitral tribunal as a condition of granting interim measures may require security to be provided by the applicant party. Section 17E(2) was omitted.

[page 111]

Disclosure 17F (cf Model Law Art 17F)

(1) The arbitral tribunal may require any party promptly to disclose any material change in the circumstances on the basis of which the measure was requested or granted. (2) [omitted] Note Subsection (1) is the same as Art 17F(1) of the Model Law. Art 17F(2) is omitted as a consequence of this Act not including equivalents to Arts 17B and 17C of the Model Law. (cf Model Law Art 17G)

ANNOTATIONS [s 17F.5] Disclosure Subsection (1) is the same as Art 17F(1) of the Model Law. As a condition of granting an interim measure of protection, the arbitral tribunal has the discretion to require any party or parties to promptly disclose to the arbitral tribunal any material change to the circumstances on which the interim measure was requested or granted. This provision does not impose a mandatory requirement on the parties to disclose material changes to the circumstances relating to the grounds on which the interim measure was requested or granted. Parties are obliged to disclose material changes if ordered to do so by the arbitral tribunal. This provision gives power to the arbitral tribunal to require any party to the arbitration (including more than one party to the arbitration) to disclose information of any material changes to the circumstances on which the interim measure was requested or granted. An order requiring a party to disclose any material change to the circumstances on which the interim measure was requested or granted may have its own unique difficulties. What amounts to a material change in circumstances may differ between the subjective perspectives of the parties. Accordingly, an arbitral tribunal framing an order of this nature will need to specifically consider what amounts to a material change in circumstances depending on the individual facts and circumstances of the particular case. An order requiring a party to disclose material changes to the circumstances

on the basis of which the measure was requested or granted can be directed to either the party applying for the interim measure, or may be directed to the party against whom the interim measure was made. An order directed to the party against whom an interim measure was made might enable to arbitral tribunal to monitor the ongoing compliance of the interim measure (such as an order requiring a party to maintain, preserve or restore the status quo between the parties). An order directed to the party who made the application for the interim measure may enable that party to update the arbitral tribunal of any material changes to the circumstances underpinning the interim measure for the purpose of enabling it to modify the terms of the interim measure. It may also enable the party to advise the arbitral tribunal that a material change in the circumstances underpinning the order for the interim measure means that the interim measure is no longer required in the circumstances. This might be necessary given the liability of the party applying for the order to be liable for the costs and damages if it is found the interim measure should not have been granted (and perhaps maintained). An example of a material change in circumstances may be, for example, the insolvency of a party which might have the effect of putting at risk the ability of the party to satisfy an award of damages or costs. Article 17F(2) is omitted as a consequence of the Act not including an equivalent of Arts 17B and 17C of the Model Law. [s 17F.10] Failure to comply The failure of a party to comply with an order requiring the disclosure of a material change in circumstances has the potential to lead to the arbitral tribunal making orders under s 17D of the Act modifying, suspending or terminating an interim measure.

[page 112] The failure of a party to disclose a material change in circumstances may prompt an opposing party to make an application to the arbitral tribunal for the modification, suspension or termination of an interim measure. Where a party has failed to comply with an order requiring the disclosure of information relating to a material change in circumstances, and the material change in the circumstances underpinning the interim measure amounts to an exceptional change in circumstances, then the arbitral tribunal has the power to modify, suspend or terminate the terms of the interim measure subject to the arbitral tribunal giving notice to the parties. The effect of giving notice to the

parties gives the party against whom the interim measure has been made the opportunity to remedy any contravention of the interim measure, and to comply with the order requiring them to disclosure information of material change in circumstances to the tribunal. In addition, the tribunal could make a peremptory order under s 25(2) if the conditions in s 25(2)(b) are met.

Costs and damages 17G (cf Model Law Art 17G)

(1) The party requesting an interim measure is liable for any costs and damages caused by the measure to any party if the arbitral tribunal later determines that, in the circumstances, the measure should not have been granted. (2) The arbitral tribunal may award such costs and damages at any point during the proceedings. Note This section is substantially the same as Art 17G of the Model Law but the reference to applications for preliminary orders is omitted as a consequence of this Act not including equivalents to Arts 17B and 17C of the Model Law.

ANNOTATIONS [s 17G.5] Costs and damage A party seeking an order for an interim measure must understand that if the interim measure is ordered, and it is later found that the order should not have been made in the circumstances of the case, they will be liable for the costs and damages flowing from the order. Applications for interim measures should therefore be perused with caution and not made lightly. Importantly, an arbitral tribunal is able to order costs and damages at any point in an arbitral proceeding. Arbitral tribunals are not confined to making findings about the appropriateness or otherwise of orders for interim measures at the substantive hearing of a dispute. If, for example, an arbitral tribunal makes orders to suspend, modify or terminate an order for interim measures under s 17D, it also has the power to make orders for costs or damages at that point in time.

DIVISION 4 — RECOGNITION AND ENFORCEMENT OF INTERIM MEASURES

Recognition and enforcement 17H (cf Model Law Art 17H)

(1) An interim measure issued by an arbitral tribunal under the law of this State is to be recognised as binding and, unless otherwise provided by the arbitral tribunal, enforced on application to the Court, subject to the provisions of section 17I. [page 113] (2) An interim measure issued by an arbitral tribunal under the law of another State or Territory is to be recognised as binding in this State and, unless otherwise provided by the arbitral tribunal, enforced on application to the Court, irrespective of the State or Territory in which it was issued, subject to the provisions of section 17I. (3) The party who is seeking or has obtained recognition or enforcement of an interim measure must promptly inform the Court of any termination, suspension or modification of that interim measure. (4) The Court may, if it considers it proper, order the requesting party to provide appropriate security if the arbitral tribunal has not already made a determination with respect to security or where such a decision is necessary to protect the rights of third parties. Note This section differs from Art 17H of the Model Law to the extent necessary to apply Art 17H as incorporated in this Act in the context of domestic commercial arbitrations.

ANNOTATIONS [s 17H.5] Interim measures recognition and enforcement The system of arbitration cannot properly operate without the support of State Courts. As

arbitral tribunals do not have power to enforce its own orders and awards, State Courts play a fundamentally important role in the recognition and enforcement of arbitral orders and awards. This dependence extends to the recognition and enforcement of orders relating to interim measures of protection. Section 17H(1) of the Act provides that an interim measure, issued by an arbitral tribunal exercising the law of Victoria, is to be recognised as binding and enforceable by Victorian Courts, subject to the provisions of s 17I (which provides grounds for refusing the enforcement of interim measures), and the orders of the arbitral tribunal in relation to the enforcement of the interim measure. Section 17H(2) of the Act provides that an interim measure, issued by an arbitral tribunal under the law of another State or Territory (under the provisions of the Commercial Arbitration Act of another State or Territory), is to be recognised as binding and enforceable by Victorian Courts. This power is subject to the provisions of s 17I (which provides grounds for refusing the enforcement of interim measures), and the orders of the arbitral tribunal in relation to the enforcement of the interim measure. Any party making an application for the recognition and enforcement of an interim measure under the law of Victoria, or another State and Territory, is under a continuing obligation to promptly inform the court of any modification, suspension or termination of the interim measure by the arbitral tribunal. The arbitral tribunal can insist that a party provide appropriate security in two circumstances: where the arbitral tribunal has not required the party provide appropriate security; where the court considers security is necessary to protect the rights of third parties. In relation to this second ground, the court may insist that additional security be provided by a party (in addition to security already ordered by an arbitral tribunal) in order to protect the rights of third parties.

Grounds for refusing recognition or enforcement 17I

(cf Model Law Art 17I)

(1) Recognition or enforcement of an interim measure may be refused only— (a) at the request of the party against whom it is invoked if the Court is satisfied that— [page 114] (i)

such a refusal is warranted on the grounds set out in section 36(1)(a)(i), (ii), (iii) or (iv); or (ii) the arbitral tribunal’s decision with respect to the provision of security in connection with the interim measure issued by the arbitral tribunal has not been complied with; or (iii) the interim measure has been terminated or suspended by the arbitral tribunal or, where so empowered, by the court of the State or Territory in which the arbitration takes place or under the law of which that interim measure was granted; or (b) if the Court finds that— (i) the interim measure is incompatible with the powers conferred on the Court unless the Court decides to reformulate the interim measure to the extent necessary to adapt it to its own powers and procedures for the purposes of enforcing that interim measure and without modifying its substance; or (ii) any of the grounds set out in section 36(1)(b)(i) or (ii) apply to the recognition and enforcement of the interim measure. (2) Any determination made by the Court on any ground in subsection (1) is effective only for the purposes of the application to recognise and enforce the interim measure. (3) The Court must not, in making a determination with respect to the recognition or enforcement sought, undertake a review of the substance of the interim measure. Note This section is substantially the same as Art 17I of the Model Law but has been modified to the extent necessary to apply Art 17I as incorporated in this Act in the context of domestic commercial arbitrations.

ANNOTATIONS

[s 17I.5] Grounds for refusing recognition or enforcement Section 17I provides the grounds upon which a court can refuse to enforce an interim measure of protection granted by an arbitral tribunal. The court can refuse to enforce an interim measure ordered by an arbitral tribunal in two circumstances: where on an application for enforcement, the party against whom the order is made resists enforcement and the court is satisfied that enforcement should be refused; and where the court, on its own initiative, considers that it is inappropriate to enforce the interim measure. Subsection (1) sets out the grounds for the court refusing recognition or enforcement of an interim measure. [s 17I.10] Subsection (2) Subsection (2) states that the interim orders are valid notwithstanding an order made under subs (1). [s 17I.15] Subsection (3) This subsection limits the court to the recognition and enforcement of interim orders and prevents it from reviewing the substance of the interim measure. [s 17I.20] Symmetry in Act The grounds for refusing recognition or enforcement of interim measures are similar to, but not identical to, the grounds for refusing recognition or enforcement of an award under s 36.

[page 115]

DIVISION 5 — COURT-ORDERED INTERIM MEASURES

Court-ordered interim measures 17J (cf Model Law Art 17J)

(1) The Court has the same power of issuing an interim measure in relation to arbitration proceedings as it has in relation to proceedings in courts. (2) The Court is to exercise the power in accordance with its own procedures

taking into account the specific features of a domestic commercial arbitration. Note This section is substantially the same as Art 17J of the Model Law but has been modified to the extent necessary to apply Art 17J as incorporated in this Act in the context of domestic commercial arbitrations.

ANNOTATIONS [s 17J.5] Court-ordered interim measures The court has the same power in regard to the issuing of interim measures as it has in regard to judicial proceedings. The court’s power is exercised in accordance with its own procedures applying to a domestic arbitration. [s 17J.10] Relationship with s 9 Section 17J sets out the court’s power to issue interim measures in support of arbitration proceedings. Section 9 indicates that there is no incompatibility or conflict with the arbitration agreement when a party makes a request for interim measures. Case Study: Trility Pty Ltd v Ancon Drilling Pty Ltd [2013] VSC 577 In Trility Pty Ltd v Ancon Drilling Pty Ltd [2013] VSC 577; BC201314002, (Croft J), the Supreme Court of Victoria considered an application for security for costs by a respondent to a pending arbitration. The application for security for costs was brought under the former s 47 of the Commercial Arbitration Act 1990 (Qld), s 1335(1) of the Corporations Act and pursuant to the Court’s inherent jurisdiction. On the basis that the Supreme Court of Victoria has been vested with jurisdiction in respect of this legislation pursuant to s 4 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Qld), it had jurisdiction to hear and determine the application. Notwithstanding this case concerned an application for security for costs under the old regime, the application of the principles considered by the Court is likely to broadly apply under new s 17J of the CAA, on the basis the provisions are largely drafted in the same terms. Former s 47 of the CAA provides: 47 General power of the court to make interlocutory orders The court shall have the same power of making interlocutory orders for the purposes of and in relation to arbitration proceedings as it has for the purposes of and in relation to proceedings in the court. The application for security for costs was commenced by the Trility by originating motion on 3 October 2013. Trility sought security for costs in the

amount of $1.174M in respect of the arbitration which was scheduled to commence on 25 November 2013. The substantive dispute the subject of the arbitration related to termination of a subcontract in respect of the construction of a wastewater treatment and desalination plant in Queensland. In considering whether to grant security for costs, the Court was required to construe s 1335(1) of the Corporations Act 2001 (Cth). This provision provides: Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may if it appears by credible testimony that there reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given. [Italicised emphasis added]

[page 116] On the basis section 17J of the Act gives the court the same power of issuing interim measures in relation to arbitration proceedings as it has in relation to proceedings in courts, s 1335(1) of the Corporations Act 2001 (Cth) is likely to be an important provision that a respondent to an arbitration may rely upon in seeking security against an incorporated party bringing the arbitral proceedings. The Court considered the meaning of the phrase “reason to believe” in s 1335(1) of the Corporations Act 2001 (Cth). His Honour noted that the phrase had been considered by the Victorian Court of Appeal in Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377; 66 ACSR 455; [2008] VSCA 93; BC200804103. In that case, Maxwell P and Buchanan JA said: The phrase “reason to believe” is the touchstone of the jurisdiction. It requires a rational basis for the belief — and no more. The wording adopted may be contrasted with other familiar foundations such as “If the court is satisfied that…” or “If in the view of the court it is likely that…” The section requires the making of a judgment, a risk assessment; is there a risk that the corporation will be unable to pay? (It adds nothing, in our view, to say that it must be a “real risk”.) A risk assessment is, of necessity, imprecise. The section calls for a practical, common sense approach to the examination of the corporation’s financial affairs.

It may be said, with justification, that this is a low threshold. But the test simply reflects the policy of the provision, which is to protect a defendant against the risk of the plaintiff corporation’s impecuniosity. The provision equips the court with the means to require that the defendant be secured against the risk. The Court explained the principle guiding the exercise of the discretion to grant security for costs in the following terms: “The principle that guides the exercise of the discretion with respect to security for costs is the achievement of a balance between ensuring that the defendant is adequately and fairly protected from prejudice arising from the limited liability character of the plaintiff and the risk of unnecessarily shutting out from relief a plaintiff whose case, if litigated, may result in its obtaining relief.” (Citing Tradestock Pty Ltd v TNT (Management) Pty Ltd (No 1) (1977) 14 ALR 52; 30 FLR 343; 2 TPC 22; ATPR 40-046). The Court noted that the discretion to award security for costs is unfettered and should be exercised having regard to all of the circumstances of the case, and that the task of the Court is to decide which of the discretionary factors should be taken into account in determining whether to exercise the discretion; giving those factors weight according to the particular circumstances of the case. The Court noted that previous authorities had recognised that relevant factors included: Whether an order for security for costs would frustrate the claim; The merits of the claim; Whether the applicant (bringing the application for security) was the cause of the plaintiff’s impecuniosity; Whether there was delay on the part of the applicant; Whether there are any persons standing behind the company who are likely to benefit from the litigation and who are willing to provide the necessary security; and Whether any person standing behind the plaintiff company has offered any personal undertaking to be liable for costs (and the form of such undertaking). Two recent decisions of the ACT Supreme Court and the WA Supreme Court have considered applications for security for costs under the former s 47 regime. In Chan v Kai Design & Construction Pty Ltd [2014] ACTSC 86; BC201403531, Master Mossop granted an application for security for costs

where the defendant (who was the applicant builder in two arbitrations relating to the construction of two single residential dwellings) was an impecunious corporation. The court held that s 47 of the Commercial Arbitration Act 1986 (ACT) gives the court power to make an order for security for costs of arbitration proceedings being conducted under the Act. Having regard to the financial material filed by the defendant corporation, the court considered there the threshold criteria for ordering security had been met

[page 117] and there was a real chance the defendant company will be unable to pay the costs incurred by the plaintiff in the arbitration proceedings. The court granted security for costs despite it not being clear on the evidence the defendant was insolvent or had cease trading. In All Roofs Pty Ltd v Southgate Corporation Pty Ltd [2014]WASC 155; BC201403876, Acting Master Gething refused an application by Southgate for an order for security for costs of the arbitration under s 47 of the old regime, and pursuant to s 1335 of the Corporations Act 2001 (Cth) and O 25 of the Rules of the Supreme Court 1971 (WA). The court considered that Southgate was not able to discharge the onus imposed on it to establish, by credible testimony, that there was reason to believe All Roofs will not be able to pay Southgate’s costs if successful in the arbitration proceedings. The court noted that there was insufficient information about the financial position of All Roofs to justify a conclusion that there is a risk Southgate will not be paid its costs of the arbitration in the event it is successful. The court also noted the quantum of likely costs sought is modest. On this basis, the court refused to exercise its jurisdiction to order costs under s 1335 of the Corporations Act and under the Rules. Financial circumstances of Ancon in Trility Pty Ltd v Ancon Drilling Pty Ltd [2013] VSC 577 Trility submitted in support of its application for security that the Court, looking behind financial circumstances of the plaintiff, should find that there is a “reasonable belief” Ancon would not be able to meet an adverse costs order. Trility submitted that the affidavit material filed by Ancon in opposition demonstrates that the company would not be in a position to meet an adverse costs order. In addition, it submitted that the principle in Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395; BC5900240,

should apply to enable the Court to infer that the absence of evidence supporting its financial position means that such evidence would not have assisted its case. Ancon in opposition submitted that if security were ordered, it would not have resources to pay the amount of security and to fund the preparation of the arbitration. It submitted that there is a proper basis for conclusion that Ancon would be able to meet an adverse costs order on the basis of earnings that Ancon reasonably expects to make in accordance under a third party agreement. In response to this argument, Trility submitted that when decision whether there is a sufficient reason to believe that a party will be unable to pay a future costs order, the Court must only look at the funds in existence as at the date of the application, and not take into account any potential rights to future earnings (relying on the decision of Tan Kah Hock v AWAP SGT 26 Investments Ltd [2008] FCA 540; BC200803013; and HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 87; BC201301954). Delay in bringing the application In opposition to the application for security, Ancon submitted that a central discretionary factor that ought to be taken into account in determining whether to exercise its discretion is the question of the applicant’s delay in bringing the application. This was a central factor in the outcome of the application. Ancon submitted that there had been gross delay by Trility in bringing the application for security. The evidence before the court indicated that the issue of security was first raised by Trility in correspondence dated 16 April 2012. Ancon submitted that the fact the application was made on 3 October 2013, in such close proximity to the arbitration scheduled to commence on 25 November 2013, meant that an order for security would cause it to suffer significant prejudice if it were to be made. The Court noted that any delay in bringing an application for security for costs is likely to be seen as a factor that carries considerable weight (citing Christou v Stanton Partners Australasia Pty Ltd [2011]WASCA 176; BC201106003). This is because delay in bringing a security for costs application is capable of causing prejudice or unfairness to the plaintiff. In Christou, the Court said that it is incumbent upon a defendant who wishes to obtain security for its costs to apply promptly for that relief once it is (or ought reasonably be) aware that the plaintiff would be unable to meet an order for costs. The Court explained that “security for costs is not a card that a defendant can keep up its sleeve and play at its convenience.” The Court said that a plaintiff is entitled to know at the earliest opportunity. This is because if the plaintiff has committed resources to preparing its case, such costs will be wasted if it cannot ultimately meet an order for

security which has been

[page 118] made in an application the subject of delay. For these reasons, Croft J explained “[t]he closer is the proximity of the hearing of the substantive proceeding to the time at which any application for security for costs is made, the more weight is likely to be given to the delay factor.” The Court considered the decision of Trility to wait until seven weeks before the commencement of the arbitration to apply for security for costs, in circumstances where the first idea of applying for security occurred 17 months before, was significant delay. The Court considered that this fact was “… indicative of Trility keeping the threat of a security for costs application as ‘a card that a defendant can keep up its sleeve and play at its convenience’”, and there was nothing to suggest that the timing of the application for security was outside Trility’s control. The Court held that there was no reason why Trility could not have made its application shortly after its concern with respect to Ancon’s financial position arose, and that Trility had not made the application promptly in the circumstances. Other factors In opposition to the application for security, Ancon submitted that its current financial position had been significantly adversely affected by Trility’s failure to pay to it amounts owing under the subcontract the subject of the arbitral proceedings (in the amount of approximately $13.3M). It submitted that its weakened financial position was the direct consequence of Trility’s actions, and on this basis it ought not to be entitled to security. Decision of the Court, balancing the relevant discretionary factors The Court held, having regard to the circumstances of the case and the mix of discretionary factors to be weighed, that overwhelming weight is to be given to the delay of Trility in bringing the application. The Court held that there was no plausible explanation for the delay, other than the explanation that the “application was being held as a Sword of Damocles over Ancon for tactical purposes”. Balancing this factor with the other relevant discretionary factors, including the prejudice that may be suffered by Trility if it succeeds in the arbitration and security is not ordered, the Court refused the application for security.

PART 5 — CONDUCT OF ARBITRAL PROCEEDINGS

Equal treatment of parties 18 (cf Model Law Art 18)

The parties must be treated with equality and each party must be given a reasonable opportunity of presenting the party’s case. Note This section differs from the Model Law to the extent that it requires a party to be given a “reasonable”, instead of “full”, opportunity of presenting the party’s case.

ANNOTATIONS [s 18.5] Equal treatment of parties It is mandatory (“must”) that parties are to be treated equally. This section differs from the Model Law to the extent that it requires a party to be given a “reasonable”, instead of “full”, opportunity of presenting the party’s case. This section appears to address the requirements of procedural fairness in that parties must be given a “reasonable” opportunity of presenting their case. [s 18.10] Aspects of common law natural justice omitted from Act Equal treatment and a reasonable opportunity for a party to present their case both fall within the hearing rule of natural justice.

[page 119] [s 18.15] Absence of bias rule omitted Natural justice also includes a rule that there be no bias in the hearing. This aspect of natural justice has not been retained in the Act. [s 18.20] Where to go for interim measures? Court or arbitral tribunal The Act and the International Arbitration Act do not give any guidance. The aim

of the Act and its paramount object is to resolve disputes by arbitration. This, together with the consensual nature of arbitration, are reasons to support going to the arbitral tribunal first for interim measures but there is no legal restriction against going to the Supreme Court. If the arbitral tribunal has not been constituted or established or if it has but has not entered on the reference, parties may, if they have agreed to some Institutional Rules (eg. ACICA Arbitation Rules or SIAC Arbitration Rules), make use of Emergency Arbitrator Rules and have an Emergency Arbitrator appointed solely for the purpose of making the urgent interim orders needed. (See: ACICA Arbitration Rules Art 28.1 and Sch 2 (Appointment of Emergency Arbitrator). For parties who “opt-out” of s 17 and adopt the ACICA or SIAC (or other similar institutional rules) the Emergency Arbitrator provides a means of avoiding going to the Supreme Court.)

Determination of rules of procedure 19 (cf Model Law Art 19)

(1) Subject to the provisions of this Act, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. (2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Act, conduct the arbitration in such manner as it considers appropriate. (3) The power conferred on the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence. (4) The power conferred on the tribunal also includes the power to make orders or give directions for the examination of a party or witness on oath or affirmation. (5) For the purposes of the exercise of the power referred to in subsection (4), the arbitral tribunal may administer any necessary oath or take any necessary affirmation. (6) An order made or direction given by an arbitral tribunal in the course of arbitral proceedings is, by leave of the Court, enforceable in the same manner as if it were an order of the Court and, where leave is so given, judgment may be entered in terms of the order or direction. Note This section (other than subsections (4), (5) and (6)) is substantially the same as Art 19 of the Model Law. Subsections (4), (5) and (6) elaborate on

the powers conferred on arbitral tribunals.

ANNOTATIONS [s 19.5]

Determination of rules of procedure

The Model Law: Article 19: Determination of rules of procedure (1) Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. (2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct he arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

[page 120] (See also: Article 17 of the UNCITRAL RULES that in substance reflects Arts 18 and 19 of the Model Law; (Methanex Corporation v United States of America, Decision of the Tribunal on Petitions from Third Persons to Intervene as “amicus curia”, 15 January 2001, cited in “A Guide to the UNCITRAL Arbitration Rules”, Croft, Kee and Waincymer, Cambridge University Press, Melbourne 2013.) [s 19.10] Rules of Procedure The parties’ freedom to agree on the procedure under subs (1) is “subject to the provisions of this Act”, emphasising the limited nature of the choice as some provisions are mandatory. If the parties fail to agree on the procedure to be followed, either in the arbitral agreement or later, the tribunal has the power under subs (2) to conduct the arbitration in such manner as it considers appropriate. [s 19.15] Subsection (2) This subsection may be a frequently used power, as in practice many parties do not address procedural questions in the arbitral agreement. Foreign parties, such as those in a mineral or oil venture arbitration, may be more familiar with international rules such as the IBA Rules on the Taking of Evidence (the 1999 Rules) or the 2010 IBA Revised Rules on the

Taking of Evidence in International Arbitration. Under subs (1) the parties could agree on the adoption of these rules in a domestic commercial arbitration. [s 19.20] Subsection (3) Under subs (3) the arbitral tribunal has the power to determine the admissibility, relevance, materiality and weight of any evidence. The arbitrator is not bound by the rules of evidence but the parties can agree to follow the rules of evidence. There is no statutory requirement that any agreement to follow the rules of evidence must be in writing. [s 19.25] Subsection (4) Subsection (4) gives the tribunal power to make orders or give directions for the examination of a party or witness on oath or affirmation. [s 19.30] Subsection (5) Under subs (5) the arbitral tribunal may administer any necessary oath or take any necessary affirmation. [s 19.35] Subsection (6) Under subs (6) orders or directions made by the arbitral tribunal are by leave of the court, enforceable in the same manner as if it were an order of the court. The court does not have to reconsider or rehear the tribunal’s orders or directions but merely enforce them. Where the court gives leave judgment may be entered in terms of the order or direction. Procedural orders made in the course of “case management” of the arbitration are now enforceable. These procedural orders differ from interim and interlocutory orders. This is a robust approach to the enforcement of orders and directions of the tribunal. There are no requirements or considerations that have to be taken into account before enforcement can occur. (See: Arbitration Act 1996 (Eng), s 42). The court retains a discretion whether to and if it is just to enforce the procedural order or direction. If a party has not complied with s 19(6) there may be a default under s 25. [s 19.40] Subsections (4)–(6) Subsections (4) to (6) extend the powers conferred on arbitral tribunals and restrict the opportunity for the court to interfere, on procedural grounds, in arbitral awards. [s 19.45] Section to be read with s 18 The requirements of procedural fairness in s 18 are to be read with the tribunal’s power to conduct the arbitration in such manner as it considers appropriate. (See: subs (2)). [s 19.50] Limited scope for court interference This section and s 18 appear to limit the scope for court interference in the procedure selected by the tribunal (see ss 18 and 1AC). The court cannot imply “reasonable” procedures

into the arbitration agreement.

[page 121] [s 19.55] Misconduct not a ground of setting aside an award The Act does not contain a ground stating that “misconduct” by the arbitrator is a ground of setting aside an award. The absence of a ground of “misconduct” by the arbitrator as occurred in s 44 of the former Commercial Arbitration Acts, narrows the grounds on which a court may interfere in the arbitral process on procedural grounds. A problem that arose under the former Commercial Arbitration Acts (eg. the Commercial Arbitration Act 1984 (Vic)) was a case stated procedure where a party could apply to the court on grounds of alleged “misconduct” by the arbitrator or arbitrators. This procedure added significantly to the cost and delay with the result of repetition of the arbitration proceedings before an enforcing court. This problem was so significant that it severely constrained merit reviews and brought disrespect for arbitrations.

Place of arbitration 20 (cf Model Law Art 20)

(1) The parties are free to agree on the place of arbitration. (2) Failing such agreement, the place of arbitration is to be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties. (3) Despite subsection (1), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place (whether or not in Victoria) it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.

ANNOTATIONS

[s 20.5] Subsection (1) Subsection (1) is substantially the same as Art 20(1) of the Model Law, but is modified to make it clear that the reference to the place of arbitration is not limited by the relevant provision of jurisdiction’s Interpretation Act (eg, of the Interpretation of Legislation Act 1984 (Vic) or the Interpretation Act 1984 (WA)) to a place in this [state/territory (as appropriate)]. [s 20.10] Domestic arbitration A domestic arbitration is one that occurs within Australia. If the parties chose a place outside Australia, then it would not be a domestic arbitration and not subject to the Act. [s 20.15] Freedom to choose place of arbitration limits sections of Act that apply If the arbitration is held outside the state, then s 1(2) applies and only the ancillary ss 8, 9, 17H, 17I, 17J, 35 and 36 apply. [s 20.20] Law governing arbitration Mustill and Boyd in their leading text Commercial Arbitration, 2nd ed, Sweet & Maxwell, 1989, p 61 set out the following laws that govern an arbitration: 1. The proper law of the contract, ie. the law governing the contract which creates the substantive rights of the parties, in respect of which the dispute has arisen. 2. The proper law of the Arbitration agreement, ie. the law governing the obligation of the parties to submit the disputes to arbitration, and to honour an award. 3. The curial law — the law governing the individual reference. 4. The proper law of the reference — the law governing the contract which regulates the individual reference to arbitration.

[page 122] In practice, it is scarcely conceivable that a situation will arise in which the court or arbitrator may have to consider four different laws at the same time. Laws 2, 3, and 4 will almost always be the same; and if there is, in a rare instance, any divergence between them, Laws 2 and 4 will very rarely be found to differ. [s 20.25] Lex arbitri The lex arbitri is the law governing the individual reference or the seat of the arbitration and thus the conduct of the arbitration.

[s 20.30] Failure to parties to agree on place of arbitration If the parties fail to agree on the place of arbitration, then under subs (2), the arbitral tribunal can make the decision having regard to the convenience of the parties. This section overrides the common law that holds that if the parties fail to agree on the place of the arbitration then the place is where the arbitration is held. (See: American Diagnostica Inc v Gradipore Ltd (1998) 44 NSWLR 312). [s 20.35] Arbitral tribunal may meet at any place Subsection (3) states that, notwithstanding subs (1), the arbitral tribunal can meet at any place, even out of the State if the tribunal considers this appropriate. [s 20.40] Award made at place of arbitration — s 31(4) and (5) The award must state the date and place of the arbitration (s 31(4), and is taken to have been made at the place of the arbitration (s 31(5)).

Commencement of arbitral proceedings 21 (cf Model Law Art 21)

Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.

ANNOTATIONS [s 21.5] “Unless otherwise agreed by the parties” provision maintaining party autonomy.

This is an “opt-out”

[s 21.10] Relevance of limitation periods The commencement date of a dispute raises the issue of the relevance of any limitation period. (See: Limitations Act for the State or Territory.) [s 21.15] Request or notice of dispute or notice of arbitration The simple requirements of the common law were that the notice had to be in writing and clear and certain expressing an intention to have the dispute arbitrated. The arbitral institutions (eg, IAMA and ACICA) set out detailed requirements for items to be included in the Notice of Dispute. The requirements differ

between arbitral institutions. [s 21.20] Practice to file reply to notice of dispute or notice of arbitration In practice, many of the arbitral institutions require a Reply to the Notice of Dispute or Notice of Arbitration summarising the defence. The Reply sets out the issues in dispute and is used in any Preliminary Conference held by the arbitrator. [s 21.25] Commencement of arbitral proceedings (cf Model Law Art 21) The parties can opt-out of s 21. The subsection sets out a mechanism whereby the date of commencement can be ascertained. It is the date on which the request for that dispute to be referred to arbitration is received by the respondent.

[page 123]

Language 22 (cf Model Law Art 22)

(1) The parties are free to agree on the language or languages to be used in the arbitral proceedings. (2) Failing agreement as referred to in subsection (1), the arbitral tribunal is to determine the language or languages to be used in the proceedings. (3) This agreement or determination, unless otherwise specified in the agreement or determination, is to apply to any written statement by a party, any hearing and any award, decision or other communication by the arbitral tribunal. (4) The arbitral tribunal may order that any documentary evidence is to be accompanied by a translation into the language or languages agreed on by the parties or determined by the arbitral tribunal.

ANNOTATIONS [s 22.5] The parties are free to agree Party autonomy is retained in regard to the language to be used in the arbitral proceedings. In Australian domestic

arbitration disputes, the use of a language other than English will probably be a rare. [s 22.10] Failure to agree — subs (2) If the parties do not agree on the language to be used in the arbitration then the arbitral tribunal is to determine the language or languages to be used. [s 22.15] Subsection (3) Once parties agree to the language to be used then this is binding on them “unless otherwise specified in the agreement or determination”. Parties agreeing on a language other than their own should be very careful to ensure that there is certainty on this issue and carefully check any agreement or determination. [s 22.20] Subsection (4) The arbitral tribunal can make an order stating that any documents in evidence must be accompanied with a translation. The tribunal can exercise its discretion whether to use subs (4). [s 22.25] Read with s 18 Section 18 requires that parties must be treated equally and each party be given a reasonable opportunity of presenting its case. This is a factor to be considered by the arbitral tribunal in considering whether to make an order under subs (4). [s 22.30] Language See Model Law Art 22. In Australian domestic arbitration the language that the parties will agree on is English.

Statements of claim and defence 23 (cf Model Law Art 23)

(1) Subject to any contrary agreement of the parties or a direction of the arbitral tribunal, within the period of time agreed by the parties or determined by the arbitral tribunal, the claimant must state the facts supporting his or her claim, the points at issue and the relief or remedy sought, and the respondent must state the respondent’s defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of such statements. [page 124]

(2) The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit. (3) Unless otherwise agreed by the parties, either party may amend or supplement the party’s claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it. (4) Subsection (1) does not require a statement by a claimant or respondent to be in a particular form. Note This section (other than subsections (1) and (4)) is substantially the same as Art 23 of the Model Law. Subsection (1) has effect subject to any contrary agreement of the parties or direction of the arbitral tribunal. Subsection (4) makes it clear that it is not necessary to use a particular form of statement of claim or defence.

ANNOTATIONS [s 23.5] Statements of case Subsection (1) requires the claimant within, the time agreed or fixed by the tribunal, to file, a statement of case. A statement of case sets out the facts, issues and contentions and the relief sought and as such is broader than a statement of claim. The respondents are required to set out their defence. The parties are free to agree to what is required in the statements. The parties may agree to adopt one of the arbitral institutions’ rules that contain detailed requirements as to the statement of case and defence. [s 23.10] Subsection (2) This subsection allows the parties to submit all documents that they consider relevant. The parties can add a reference to the documents or other evidence that they submit. This measure gives the arbitral tribunal the relevant documents at an early stage. [s 23.15] Failure to submit documents If a party fails to submit the relevant documents the arbitral tribunal may decide to invoke s 19(2) and determine the matter as it sees fit. [s 23.20] Amending or supplementing statement of case or defence Under subs (3) the parties may amend or supplement the statement of case or defence. The tribunal can exercise its discretion not to allow any such amendments or supplementary material if there has been a delay in making it.

This discretion protects parties against the filing and use of additional material at a late stage in the proceedings. In this respect s 18 is relevant as the parties must have a reasonable opportunity of presenting their case. The late filing of additional material may incur a costs penalty. [s 23.25] Form of statement of case and defence No particular form is required allowing the parties a degree of flexibility, but the statement of case must include the facts supporting the claim; the points at issue and the relief or remedy sought. (See: subs (1).)

Hearings and written proceedings 24 (cf Model Law Art 24)

(1) Subject to any contrary agreement by the parties, the arbitral tribunal is to decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings are to be conducted on the basis of documents and other materials. (2) However, unless the parties have agreed that no hearings are to be held, the arbitral tribunal must hold such hearings at an appropriate stage of the proceedings, if so requested by a party. [page 125] (3) The parties must be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of goods, other property or documents. (4) All statements, documents or other information supplied to the arbitral tribunal by one party must be communicated to the other party. (5) Also, any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision must be communicated to the parties.

ANNOTATIONS

[s 24.5] Subject to any contrary agreement between the parties Party autonomy is retained by this subsection which allows the parties to reach an agreement among themselves. This section closely follows the Model Law Art 24. This is evidenced by the use of the word “hearings” in subs (1). In the civil law system many small hearings are held. In the common law system litigation there is usually one hearing. [s 24.10] Tribunal to decide whether to hold oral hearings Many parties are used to having an oral hearing in litigation. They allow for parties to present their case; to produce key documents; to cross-examine witnesses and test the case opposed to them. Some of these parties may be surprised by this section allowing the tribunal to decide whether to hold oral hearings or decide the dispute on the papers. If no agreement is reached between the parties, then this may result in vigorous argument and lengthy submissions in support of an oral hearing, especially from parties and their lawyers used to litigation. [s 24.15] Subsection (2) This subsection compels the arbitral tribunal to hold a hearing at an appropriate stage if the parties have not agreed that no hearings are to be held. [s 24.20] Section 18 should be considered The requirement under s 18 that each party must be given a reasonable opportunity to present its case is a factor to be considered by both the parties and the arbitral tribunal under this section. [s 24.25] Paramount object also a factor The paramount object of the Act set out in s 1AC (note s 1C in NSW) and in particular s 1AC(2)(a) and (b) are also matters to be considered by the parties and the arbitral tribunal under this section. [s 24.30] Section 19(2) Section 19(2) empowers the tribunal in the absence of an agreement to the contrary to conduct the arbitration in such manner as it considers appropriate. This section should be considered with s 24. [s 24.35] Subsection (3) The parties are to be given sufficient advance notice of hearings and meetings of the tribunal for the purpose of inspection of goods, other property or documents ensuring that they will not be taken by surprise. The parties and the tribunal observe this due process as it facilities the smooth running of the arbitration. [s 24.40] Subsection (4) The requirement to provide the other side with all documents or other information supplied to the tribunal is one that lawyers are

used to and observe. [s 24.45] Subsection (5) The requirement that the tribunal must provide to the parties any expert report on which it intends to rely is another due process requirement. This subsection overcomes the problem that would arise if parties did not have the opportunity to make submissions on or respond to an expert report that may be relied upon by the tribunal.

[page 126]

Representation 24A (1) The parties may appear or act in person, or may be represented by another person of their choice, in any oral hearings under section 24. (2) A person who is not an Australian lawyer does not commit an offence under or contravene the provisions of the Legal Profession Uniform Law (Victoria) or any Act merely by representing a party in arbitral proceedings in this State. [subs (2) subst Act 17 of 2014 s 160 and Sch 2 item 16, opn 1 July 2015]

Note

There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 24A.5] Subsection (1) Under subs (1), in any oral hearings under s 24 the parties may appear in person or be represented by a person of their choice. Party autonomy is preserved. [s 24A.10] Subsection (2) Under subs (2) the party to the arbitration can be represented by a person who is not a legal practitioner admitted to practice in that jurisdiction. The person representing the party does not commit an offence under of breach of the provisions of the statute governing the legal profession in that state and territory, by representing the party in the arbitral proceedings in that state and territory. [s 24A.15] Paramount object is to be considered in all choices The paramount object s 1AC with its emphasis on resolving disputes, resolving the

dispute in a cost effective manner, informally and quickly, is relevant to all decisions made under this section. Parties are not restricted to using legally trained persons to represent them in arbitral proceedings. Parties can still use lawyers, whether or not they represent them in the arbitral hearing. Parties must act reasonably and cannot insist on being represented by a person who is only available in an inconvenient time frame for the other party and the arbitral tribunal. [s 24A.20] Common courtesies to be maintained There is no legislative duty to notify the other party and the arbitral tribunal that a party is being represented and by whom. The observance of theses common courtesies facilitates smooth working of the arbitral process

General duties of parties 24B (1) The parties must do all things necessary for the proper and expeditious conduct of the arbitral proceedings. (2) Without limitation, the parties must— (a) comply without undue delay with any order or direction of the arbitral tribunal with respect to any procedural, evidentiary or other matter; and (b) take without undue delay any necessary steps to obtain a decision (if required) of the Court with respect to any function conferred on the Court under section 6. (3) A party must not wilfully do or cause to be done any act to delay or prevent an award being made. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 24B.5] Statutory duties imposed on parties mandatory statutory duties on the parties.

This section imposes

[page 127]

[s 24B.10] Subsection (1) This subsection imposes a general statutory duty on the parties to do all things necessary for the proper and expeditious conduct of the arbitral proceedings. [s 24B.15] Subsection (2) This subsection imposes particular statutory duties on the parties. Under para (a) the parties must act without undue delay in regard to any order or direction of the arbitral tribunal with respect to any procedural, evidentiary or other matter. Under para (b) the parties must take, without undue delay, any necessary steps to obtain a decision of the court with respect to any function conferred on the court under s 6. [s 24B.20] Subsections (1) and (2) based on s 40 of the Arbitration Act 1996 (Eng) Subsections (1) and (2) are based on s 40 of the Arbitration Act 1996 (Eng) and the authorities and commentary on that section will be persuasive in any interpretation of s 24B(1) and (2). [s 24B.25] Resolving disputes in a cost effective manner, informally and quickly The paramount object of the Act expressed in s 1AC(2)(a) and (b) is reiterated in s 24B(1) and s 24B(2)(a). The imposition of duties on parties by codifying them in this section should aid the swift and timely resolution of disputes. [s 24B.30] Subsection (3) This subsection imposes a duty on a party not to wilfully do or cause to be done any act or delay to prevent an award being made. Proof that a party acted in breach of this subsection may not be an easy task. (See: Barwick CJ in Iannella v French (1968) 119 CLR 84 at 95; [1968] ALR 385.) [s 24B.35] Remedies for breach of this section The statutory remedies include: s 19(6) under which an order of the arbitral tribunal is with leave of the court enforceable in the same manner as if it were an order of the court and, where leave is so given, judgment may be entered in terms of the order or direction; s 25 (default of a party; see s 25(2)); s 33B (costs). The remedies for breach can be statutory and will also be developed through the cases. In regard to whether breach of statutory duty leads to damages and whether a breach of statutory duty entitles a non-defaulting or delaying party to repudiate. (See: Auburn Council v Austin Australia Pty Ltd (in liq) [2007] NSWSC 130 where Einstein J, at [32], applied Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 987 per Lord Diplock.)

Default of a party 25 (cf Model Law Art 25)

(1) Unless otherwise agreed by the parties, if, without showing sufficient cause— (a) the claimant fails to communicate the claimant’s statement of claim in accordance with section 23(1) — the arbitral tribunal may terminate the proceedings; or (b) the respondent fails to communicate the respondent’s statement of defence in accordance with section 23(1) — the arbitral tribunal may continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations; or (c) any party fails to appear at a hearing or to produce documentary evidence — the arbitral tribunal may continue the proceedings and make the award on the evidence before it. (2) Unless otherwise agreed by the parties, if a party fails to do any other thing necessary for the proper and expeditious conduct of the arbitration the arbitral tribunal— [page 128] (a) if satisfied that there has been inordinate and inexcusable delay on the part of the claimant in pursuing the claim — may make an award dismissing the claim or may give directions (with or without conditions) for the speedy determination of the claim; or (b) if without sufficient cause a party fails to comply with any order or direction of the arbitral tribunal — may make an order requiring the party to comply with the terms of the earlier order or direction within the period specified by the arbitral tribunal (a peremptory order). (3) If a party fails to comply with a peremptory order, the arbitral tribunal may do any of the following— (a) direct that the party in default is not to be entitled to rely on any allegation or material which was the subject matter of the peremptory order; (b) draw such adverse inferences from the failure to comply as the circumstances justify;

(c) proceed to an award on the basis of any materials that have been properly provided to the arbitral tribunal; (d) without limiting section 33B(4), in making an award give any direction or order that it thinks fit as to the payment of the costs of the arbitration incurred in consequence of the non-compliance. Note Subsection (1) is substantially the same as Art 25 of the Model Law. There are no equivalents to the other provisions of the section in the Model Law.

ANNOTATIONS [s 25.5] “Unless otherwise agreed by the parties” The parties may “optout” of subs (1) and (2). Subsections (1) and (2) preserves party autonomy. [s 25.10] Default of a party This section arms the arbitral tribunal with the power to deal with a default by a party. The party could be in breach of its duties under s 24B. The tribunal determines on an application by a party whether the other party is in default. [s 25.15] Subsection (1) “Default” may arise as a result of: 1. failing to communicate a statement of claim in accordance with s 23(1) (a); 2. failing to communicate a statement of defence in accordance with s 23 (1)(b); 3. failing to appear at a hearing or to produce documentary evidence s 25(1)(c). [s 25.20] Remedies for default The different types of default have different remedies. The remedies are discretionary and not mandatory, evidenced by the use of the word “may” and not “shall”. Subsections (2) and (3) give the court power to act on any inordinate delay or default that may prejudice the early resolution of the dispute. [s 25.25] Remedies for breach of subs (1) There are separate specific remedies for breach of subs (1)(a), (b) and (c): (a) The tribunal may terminate the proceedings. If so, the party can recommence the claim as principle of res judicata will not apply. (b) The arbitral tribunal may continue the proceedings without treating

such failure in itself as an admission of the plaintiff’s allegations. (c) The arbitral tribunal may continue the proceedings and make the award on the evidence before it. The arbitral tribunal will carefully consider each remedy and whether there are sufficient grounds to uphold that remedy.

[page 129] [s 25.30] Subsection (2) Under this subsection default may occur if a party: (i) fails to do any other thing necessary for the proper and expeditious conduct of the arbitration such as: (a) that there has been inordinate and inexcusable delay on the part of the claimant in pursuing the claim (s 25(2)(a)); (b) fails to comply with any order or direction of the arbitral tribunal (s 25(2)(b)); (ii) fails to comply with a peremptory order (s 25(2)(b)). [s 25.35] Remedies in subs (2)(a) Under subs (2)(a) if there has been inordinate and inexcusable delay on the part of the claimant in pursuing the claim, the tribunal may make an award dismissing the claim or it may give directions (with or without conditions) for the speedy determination of the claim. Dismissal for want of prosecution is only taken when the arbitral tribunal finds sufficient grounds, usually some years of delay, to make such an order against the statement of case or the defence. (See: Carob Industries Pty Ltd (in liq) (t/as Foremost Equipment) v Simto Pty Ltd (2000) 18 ACLC 177; [1999] WASC 258 per Anderson J who was upheld by the court of Appeal in [2001] WASCA 183 (a case on s 46 of the Commercial Arbitration Act 1985 (WA)). [s 25.40] A peremptory order — subs (2)(b) A “Peremptory Order” is a final warning. If there is a failure to comply with the peremptory order then sanctions apply. That is, if the party does not comply with subs (2)(b) then the sanctions in subs (3) apply. The term is defined in s 82(1) of the Arbitration Act 1996 (Eng). (See Russell On Arbitration, 23rd ed, 2007, Sweet & Maxwell, p 584; and s 83; see also s 41(5) in terms similar to those set out above (p 567); (see also Mustill & Boyd, Commercial Arbitration, 2nd ed, Sweet & Maxwell, 1989, pp 373, 374, 318.)

Under subs (2)(b) if a party fails to comply with any order or direction of the arbitral tribunal the tribunal may make an order requiring the party to comply with the terms of the earlier order or direction within the period specified by the arbitral tribunal (a peremptory order). [s 25.45] Failure to comply with a peremptory order — subs (3) If a party fails to comply with a peremptory order the tribunal may use any of the alternatives enumerated under this subsection in paras (3)(a)–(3)(d) or a combination of any or all of those orders depending on what is appropriate. Failure to comply with a peremptory order of the tribunal cannot lead to the tribunal dismissing the arbitration. [s 25.50] Subsection (3)(a) The tribunal may direct that the party in default is not entitled to rely on any allegation or material which was the subject matter of the peremptory order. [s 25.55] Subsection (3)(b) The tribunal may draw such adverse inferences from the failure to comply as the circumstances justify. [s 25.60] Subsection (3)(c) The tribunal may proceed on the basis of any materials that have been properly provided to the arbitral tribunal. [s 25.65] Subsection (3)(d) Without limiting s 33B(4) (Costs order) the tribunal may in making the award give any direction or order that it thinks fit as to the payment of the costs of the arbitration incurred in consequence of the noncompliance. [s 25.70] Default does not stop arbitration If the particular test of that particular type of default has been demonstrated to the satisfaction of the arbitral tribunal then the tribunal can make the appropriate order under subss (2) and (3) and proceed with the arbitration without removing it into court.

[page 130]

Expert appointed by arbitral tribunal 26 (cf Model Law Art 26)

(1) Unless otherwise agreed by the parties, the arbitral tribunal— (a) may appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal; and (b) may require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for the expert’s inspection. (2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert must, after delivery of the expert’s written or oral report, participate in a hearing where the parties have the opportunity to put questions to the expert and present expert witnesses in order to testify on the points at issue.

ANNOTATIONS [s 26.5] Unless otherwise agreed by the parties this section. Party autonomy is preserved.

The parties can opt-out of

[s 26.10] Tribunal appointed expert — subs (1)(a) This section is based on the Model Law Art 26. The use of court appointed experts is common in Australian state courts and in the Federal Court of Australia and the Family Court of Australia. The aim is to prevent each side producing a partisan expert witness and to reduce the time and expense involved in hearing and deciding a matter where multiple expert witnesses are involved. Presumably, the reference to one or more experts relates to different issues and the intention is that the court would not appoint more than one expert to a particular issue unless it was exceedingly complex. [s 26.15] Tribunal may require party to facilitate work of expert Under subs 1(b) the tribunal may by making orders or directions require a party to facilitate the work of the expert. [s 26.20] Subsection (2) This subsection allows the parties to opt-out thus preserving party autonomy. The subsection is triggered by the request from a party or from the tribunal that the expert must participate in a hearing and have his views tested in cross-examination.

Court assistance in taking evidence 27 (cf Model Law Art 27)

(1) The arbitral tribunal or a party with the approval of the arbitral tribunal may request from the Court assistance in taking evidence. (2) The Court may execute the request within its competence and subject to and in accordance with rules of court. Note This section is substantially the same as Art 27 of the Model Law but the reference to rules of court has been amended for consistency with sections 27A and 27B and a request for assistance may only be made to the Court, not any competent court.

ANNOTATIONS [s 27.5] Court assistance in taking evidence Following a request by a party or the tribunal the court may assist in taking evidence.

[page 131] [s 27.10] “The court” “The court” is defined in s 2 to mean, subject to s 6(2), the Supreme Court. [s 27.15] “within court’s competence and in accordance with the court’s rules” The taking of that evidence must be within the court’s competence and in accordance with the court’s rules. In doing so the court is using its powers that are greater than those of the arbitral tribunal eg, its power of compulsion. [s 27.20] Power to order inspection If the tribunal was of the view that it could benefit from an inspection of the premises or site it could make an order under s 27. [s 27.25] Request from a party in keeping with paramount object Any request from a party must be in accord with the paramount object found in s 1AC. [s 27.30]

General Power under s 27

The power granted under s 27 is a

general power and is not a limited power as under s 27A.

Parties may obtain subpoenas 27A (1) The Court may, on the application of any party, and subject to and in accordance with rules of court, issue a subpoena requiring a person— (a) to attend for examination before the arbitral tribunal; or (b) to produce to the arbitral tribunal the documents specified in the subpoena; or (c) to do both of those things. (2) A party may only make an application to the Court under subsection (1) with the permission of the arbitral tribunal. (3) A person must not be compelled under any subpoena issued in accordance with subsection (1) to answer any question or produce any document that the person could not be compelled to answer or produce in a proceeding before the Court. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 27A.5] On the application of a party The term “party” is defined in s 2 to mean a party to an arbitration agreement. A party applying under s 27A(1) is a party to an arbitration agreement. Subpoenas may have a different role in arbitrations to court cases. (See: Transfield Philippines Inc v Luzon Hydro Corp [2002] VSC 215.) In that case the subpoenas were issued by the tribunal, before pleadings and before discovery, directed to corporations and persons which are associated with a party. The subpoenas were wide but the court held that they were not to be in the nature of discovery, for they did not require the persons named to identify the issues in the arbitration. The issue was whether the subpoenas were of such width, and so oppressive, that they placed an unreasonable burden on the persons named having regard to likely value of the documents in the arbitration. It was held that the respondent (LHC) failed to discharge the burden which it bore with respect to parts only of the subpoenas. Byrne J struck out the offending parts but would not set aside the whole of the subpoena process.

The use of subpoenas has shortened trials. It is hoped that the use of subpoenas will have the same effect on arbitrations. (See Alinta Sales Pty Ltd v Woodside Energy Pty Ltd [2008] WASC 304, a decision under s 17(1) of the Commercial Arbitration Act 1985 (WA).) [Case Study: ASADA v 34 Players and One Support Person [2014] VSC 635 (see 1.5 above)] In Australian Sports Anti-Doping Authority Australian Football League v 34 Players and One Support Person [2014] VSC 635; BC201410881, the Supreme Court of Victoria held that

[page 132] the AFL Tribunal proceedings in which 34 past and present players of the Essendon Football Club (and one support person) was not an arbitral proceeding falling under the CAA. Rather, Croft J characterized the proceedings as domestic disciplinary tribunal proceedings. (A detailed case study of this case can be found at [1.5] above). For this reason, the Court held that ASADA could not utilise the power under s 27A of the CAA which permitted subpoenas to be issued in arbitral proceedings to compel individuals to attend such arbitral proceeding and to give evidence. While this case was concerned with the meaning and characterization of an “arbitral proceeding”, some helpful jurisprudence has emerged in relation to the use and importance of subpoenas in supporting the arbitral process, and the role the Courts play in this context. Croft J explains (at [63]): [63] Having regard to the international provenance of the [CAA], particularly the provisions of the Model Law, it is, in my view, clearly inappropriate for the Court, in an application under s 27A of the Act by a party to obtain subpoenas, to embark on a process which would, in effect, “second guess” the arbitral tribunal which has already given permission for the application to obtain a subpoena under these provisions. It is quite clear from the provenance of this legislation, internationally and domestically, that the emphasis sought to be achieved by the legislature is court assistance and support for arbitral processes, and not “heavy handed” intervention or, in effect, duplication of the functions of the arbitral tribunal. Long gone are the evils of the case stated procedure under the Victorian Arbitration Act 1958 and its equivalents in other jurisdictions. Since the Commercial Arbitration Act 1984 in Victoria, the trend in legislative developments and court decisions has been to constrain

merits appeals and the consequent cost and delay that flows from supplication of the proceedings in this process… However, Croft J also emphasized the seriousness nature of subpoenas and the consequences which can flow from a failure of compliance. In this context, Croft J noted that while support needs to be provided by the Courts to the arbitral process, the issuing of a subpoena under s 27A of the CAA is a matter that ultimately needs to be determined to the satisfaction of the Court (exercising judicial power). His Honour explained (at [63]): [63] … This is not to say, however, that a provision such as s 27A of the Act is to be treated lightly by the courts. The sanctions for a breach of a court issued subpoena are potentially very serious indeed. Consequently, the basis upon which these powers are sought to be invoked must be established to the satisfaction of the court. Nevertheless, this process should, naturally, occur as expeditiously and cost effectively as possible, but it must be balanced against the seriousness associated with subpoenas and their possible breach. A fundamental prerequisite to invocation of powers such as those conferred by s 27A is, patently, that there must be an arbitration, an arbitral tribunal, in support of which any subpoena is issued under these provisions. [s 27A.10] Applications need permission of arbitral tribunal Under subs (2) an application can only be made if the party has permission from the arbitral tribunal. [s 27A.15] Subsection (3) — parties may obtain subpoenas A party must apply to the court for a subpoena only with the permission of the arbitral tribunal. [s 27A.20] Rules of court for the granting of subpoenas Under subs (3) subpoenas are granted “subject to and in accordance with the rules of court”. The rules for the issue of subpoenas are: In Victoria the Supreme Court (General Civil Procedure) Rules 2005, O 42. In WA the Rules of the Supreme Court, O 36B; In Queensland, the Uniform Civil Procedure Rules 1999, Ch 11, Pt 4. In NSW, the Uniform Civil Procedure Rules 2005, Pt 33; In the Northern Territory, the Supreme Court Rules, O 42; In the ACT, the Court Procedures Rules 2006, Ch 6 Pt 6.9; In the Federal Court, the Federal Court Rules 1999, O 27. (See: Appendix for a copy of the above rules.)

[page 133] [Costs in relation to an application for orders for issuing subpoenas under s 27A] In Australian Sports Anti-Doping Authority Australian Football League v 34 Players [2015] VSC 14; BC201500195, the Supreme Court of Victoria considered an application by a subpoenaed party, Mr Nima Alavi-Moghadam (“Alavi”), for a special costs order against ASADA and the AFL in relation to their failed application to have a subpoena issued (under s 27A) requiring him to give evidence at an AFL anti-doping tribunal. Mr Alavi sought his costs to be paid by ASADA and the AFL on an indemnity basis. Order 9 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (through the introduction of the Supreme Court (Chapter II Arbitration Amendment) Rules 2014) (the Arbitration Rules) now provides for specific rules in respect of arbitration proceedings in the Supreme Court of Victoria. However, the Arbitration Rules do not make special provision with respect to the costs of an application for the issue of a subpoena. Instead, the Arbitration Rules rely upon the operation of O 42 of the Supreme Court (General Civil Procedure) Rules 2005 (the General Rules) for this purpose. This is achieved through the operation of O 9.14(8) of the Arbitration Rules, which provides that “Order 42 of the Chapter I applies so far as is practicable to a subpoena referred to in this Rule”. Accordingly, O 42.11 of the General Rules (the relevant order governing costs and expenses of a party complying with a subpoena in a Supreme Court civil proceeding) extends to the costs and expenses incurred in compliance with a subpoena issued in respect of arbitration proceedings pursuant to s 27A of the Act. In support of his application for a special costs order on an indemnity basis, Alavi submitted that he should not be out of pocket through litigation in which he had no interest. Alavi submitted that an indemnity costs order would achieve this position. Alavi submitted that: 1. He was, in essence, the sole contradictor to the submissions put by ASADA and the AFL in respect of their application for a subpoena, including the material question of whether the AFL anti-doping tribunal could be properly characterized as an “arbitration” or “commercial arbitration” proceeding, and ultimately whether the Act could apply. Alavi submitted that his involvement in the proceeding materially assisted the court in identifying and refining the issues for

determination. 2. The case was analogous to a case where a subpoena is set aside (under O 42.04 of the General Rules), and similar cost consequences should follow (and relying on the decision of the Federal Court of Australia in Kennedy v Wallace (2004) 136 FCR 114; [2004] FCA 636; BC200402868 (Giles J) where the court held that there is no reason why a third party who successfully applies to have a subpoena set aside should be out of pocket through becoming involved in a piece of litigation with no advantage to him). 3. The case is analogous to a case where a person is permitted to recover the reasonable loss or expense they incur in complying with a subpoena pursuant to O 42.11 of the General Rules. In support, Alavi relied on the decision in Pyramid Building Society (in liq); ex parte Farrow, Clarke and Lawson [1995] 1 VR 464, in which Byrne J held that the costs incurred by three directors in obtaining legal advice and representation on a question of privilege were allowed where the directors were subpoenaed to give evidence. Alavi contended that it is appropriate for a person who successfully challenges an application for a subpoena under s 27A of the Act to recover the comparable costs incurred in obtaining advice and appearing before the court in relation to that application. ASADA and the AFL did not oppose the award of costs to Alavi, however they submitted that costs should be ordered on the “standard” basis (and not on an “indemnity” basis). In summary, ASADA and the AFL contended that: 1. There is no suggestion the subpoena sought to be issued was improperly drawn or unworkable; 2. There is no suggestion that the application was made improperly, unreasonably or was an abuse of process;

[page 134] 3. A witness is not entitled to be indemnified against all costs and expenses incurred in respect of a subpoena; rather the costs must be reasonably incurred and must substantially exceed the conduct money given (relying on Pyramid Building Society v Farrow Finance Corporation [1995] 1 VR 464 at 469 (Byrne J). Accordingly, costs should be ordered on the standard basis because this more closely

accords and aligns with the definition of “standard costs” in the Rules; 4. There are no special circumstances that exist which warrant the making of a special costs order on an indemnity basis, which is a discretion that should be made in exceptional circumstances and with caution. Croft J held, by reference to relevant authorities, that the position adopted by the courts was that where an addressee of a subpoena had incurred costs and expenses not covered by the conduct money provisions, then that person was entitled to have those costs and expenses met by the party issuing (or seeking) the subpoena. His Honour also held that the cases also indicated that costs that are to be allowed are to be calculated on a higher basis than on the ordinary inter parties, party-party costs basis. Accordingly, costs were awarded on a solicitorclient basis. On the basis that the relevant authorities support the position that the address of a subpoena is entitled to all costs and expenses reasonably incurred, Croft J considered that the proper question for determination was how the provisions of O 42.11 should be applied (having regard to the authorities) which provide that the non-party the subject of the subpoena is entitled to be reimbursed so that they are not out of pocket as a result. In answering this question, Croft J paid special attention to the changes to the costs rules that now provide for either “standard” costs and “indemnity” costs. The commentary from Williams, Civil Procedure Victoria provides that standard costs are awarded in respect of all costs reasonably incurred and of reasonable amount (O 63.30 of the General Rules). By comparison, indemnity costs presumably afford a complete indemnity on the basis it allows for all costs save and except for those costs which are unreasonably incurred or which are of an unreasonable amount. When the two rules are compared, Williams notes that it is difficult to see whether the difference in the use of positive and negative language (about reasonableness or incurrence of amount of costs) is a “distinction without a real difference”. However, Williams notes that there is a distinction that lies in the onus of establishing the reasonableness of the incurring of the costs of their amount which shifts against the opposite party in relation to indemnity costs. Having regard to the different onus which applies in respect of the different costs rules, Croft J determined that it is not appropriate to cast the onus on the addressee of a subpoena to establish the reasonableness of costs and expenses incurred. Rather, his Honour held that this onus should be the burden borne by the party issuing or seeking to issue the subpoena (at [21]). Accordingly, the court held that Alavi is entitled to costs and expenses on an indemnity basis.

Refusal or failure to attend before arbitral tribunal or to produce document 27B (1) For the purposes of this section, a person is a person in default in relation to proceedings before an arbitral tribunal under an arbitration agreement if the person— (a) refuses or fails to attend before the arbitral tribunal for examination when required under a subpoena or by the arbitral tribunal to do so; or (b) refuses or fails to produce a document that the person is required under a subpoena or by the arbitral tribunal to produce; or (c) when appearing as a witness before the arbitral tribunal— (i) refuses or fails to take an oath or to make an affirmation or affidavit when required by the arbitral tribunal to do so; or [page 135] (ii) refuses or fails to answer a question that the witness is required by the arbitral tribunal to answer; or (d) refuses or fails to do any other thing which the arbitral tribunal may require. (2) Unless otherwise agreed by the parties, the Court may, on the application of a party or the arbitral tribunal, order a person in default to do any or all of the following— (a) attend the Court to be examined as a witness; (b) produce the relevant document to the Court; (c) do the relevant thing. (3) A party may only make an application to the Court under subsection (2) with the permission of the arbitral tribunal. (4) The Court must not make an order under subsection (2) in relation to a person who is not a party to the arbitral proceedings unless— (a) before the order is made, the person is given an opportunity to make representations to the Court; and (b) the Court is satisfied that it is reasonable in all the circumstances to

make the order. (5) A person must not be compelled under an order made under subsection (2) to answer any question or produce any document which the person could not be compelled to answer or produce in a proceeding before the Court. (6) If the Court makes an order under subsection (2), it may in addition make orders for the transmission to the arbitral tribunal of any of the following— (a) a record of any evidence given under the order; (b) any document produced under the order or a copy of any such document; (c) particulars of anything done under the order. (7) Any evidence, document or thing transmitted under subsection (6) is taken to have been given, produced or done (as the case requires) in the course of the arbitral proceedings. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 27B.5] Person in default A person in default is a person who refuses or fails to do one or more of the matters listed in subs (1)(a)–(d). [s 27B.10] Refusal or failure to attend Experience with domestic arbitrations has indicated for the need for this provision. (See: subs 1(a)). [s 27B.15] Subsection (2) “unless otherwise agreed” 7 This subsection preserves party autonomy. [s 27B.20] On the application of a party or the arbitral tribunal Under subs (2) on the application of a party or the arbitral tribunal the court “may” make the orders stated in subs (2)(a)–(c). The grounds on which the court exercises this discretion will be developed through the cases as the facts and circumstances of each case vary. Subsection (2) is also subject to subs (5). [s 27B.25] Permission of the arbitral tribunal In subs (3) the permission of the arbitral tribunal is needed before an application to the court under s 27B(2) can be made. [s 27B.30] Court orders against a party in default Under subs (3) the court can make the orders set out in (a)–(c) against the party in default.

[page 136] [s 27B.35] Person not a party to the arbitral agreement Under subs (4) in regard to a person who is not a party to the arbitral agreement the court must comply with both paras (a) and (b). Under subs (4)(a) the non-party must be given the opportunity to make representations to the court and under subs (4)(b) the court must be satisfied in all the circumstances that it is reasonable to make the orders. [s 27B.40] Must not be compelled to answer any question or produce any document In subs (5), a person under subs (2), must not be compelled to answer any question or produce any document that the person could not be compelled to do in court proceedings. [s 27B.45] Additional orders to orders made under subs (2) In subs (6) the court can make additional or consequential orders set out in paras (a)–(c). [s 27B.50] In the course of the arbitral proceedings In subs (7) if a document or thing is transmitted under subs (6) it is taken to have been given, produced or done in the course of the arbitral proceedings. [s 27B.55] Failure to comply with orders may lead to contempt of court A party who breaches or fails to comply with s 27B will be in contempt of court and could be subject to a monetary penalty (a fine) or imprisonment. (See: Hinch v A-G (Vic) (1987) 164 CLR 15; 74 ALR 353.)

Consolidation of arbitral proceedings 27C (1) Unless otherwise agreed by the parties, a party to arbitral proceedings may apply to the arbitral tribunal for an order under this section in relation to those proceedings and other arbitral proceedings (whether before that tribunal or another tribunal or other tribunals) on the ground that— (a) a common question of law or fact arises in all those proceedings; or (b) the rights to relief claimed in all those proceedings are in respect of, or arise out of, the same transaction or series of transactions; or (c) for some other reason specified in the application, it is desirable that an order be made under this section.

(2) In this section, 2 or more arbitral proceedings that are the subject of an application under subsection (1) are called the related proceedings. (3) The following orders may be made under this section in relation to the related proceedings— (a) that the proceedings be consolidated on terms specified in the order; (b) that the proceedings be heard at the same time or in a sequence specified in the order; (c) that any of the proceedings be stayed pending the determination of any of the other proceedings. (4) If all the related proceedings are being conducted by the same tribunal, the tribunal may make any order under this section that it thinks fit in relation to those proceedings and, if an order is made, the proceedings must be dealt with in accordance with the order. (5) If 2 or more arbitral tribunals are conducting the related proceedings— (a) the tribunal that received the application must communicate the substance of the application to the other tribunals concerned; and (b) the tribunals must, as soon as practicable, deliberate jointly on the application. [page 137] (6) If the tribunals agree, after deliberation on the application, that a particular order under this section should be made in relation to the related proceedings— (a) the tribunals are to jointly make the order; and (b) the related proceedings are to be dealt with in accordance with the order; and (c) if the order is that the related proceedings be consolidated — the arbitrator or arbitrators for the purposes of the consolidated proceedings are to be appointed, in accordance with sections 10 and 11, from the members of the tribunals. (7) If the tribunals are unable to make an order under subsection (6), the related proceedings are to proceed as if no application has been made under subsection (1). (8) Before making an order under this section, the arbitral tribunal or tribunals concerned must take into account whether any party would or might

suffer substantial hardship if the order were made. (9) This section does not prevent the parties to related proceedings from agreeing to consolidate them and taking such steps as are necessary to effect that consolidation. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 27C.5] Consolidation of arbitral proceedings There is no equivalent to this section in the Model Law. Section 27 applies to consolidations giving the power over consolidations to the arbitral tribunal. The power to consolidate arbitrations is very useful in regard to large projects where there may be several arbitrations with the same substratum of facts. In practice, the consolidation of arbitration proceedings is difficult. First, there is the consensual nature of an arbitration. All parties would have to agree to the consolidation. Second, the different arbitrations may have different parties. Obtaining agreement in such circumstances may not be an easy task. The UNCITRAL Rules allow for joinder of a party to an arbitration but do not allow for consolidation. Article 17(5) states: The arbitral tribunal may, at the request of any party, allow one or more third person is to be joined in the arbitration as a party provided such person is a party to the arbitration agreement, unless the arbitral tribunal finds, after giving all parties, including the person or persons to be joined, the opportunity to be heard, that joinder should not be permitted because of prejudice to any of those parties. The arbitral tribunal may make a single award or several awards in respect of all parties so involved in the arbitration. Further support for the view that there are difficulties in consolidation of arbitral proceedings is found in the text, Croft, Kee and Waincymer, A Guide to the UNCITRAL Arbitration Rules, Cambridge University Press, Melbourne 2013, where the comment is made (at 95): Consolidation 17.32 These rules with respect to joinder do not provide, and are not directed to providing, for consolidation of separate arbitration proceedings, which can only be achieved by the agreement of all parties involved in both proceedings, or where the lex arbitri otherwise allows for

consolidation. And, in the present context, this would typically require that both the arbitral proceedings were subject to the UNCITRAL Rules, unless the agreement of the parties were to involve a fundamental revision of one or other arbitration agreement. 17.33 Because the rules do not contain an express consolidation power, practitioners might consider including such provision is within their arbitration agreements.

[page 138] (See: Judith Levine, “Current Trends in International Arbitral Practice as Reflected in the Revision of the UNCITRAL Arbitration Rules” (2008) 31(1) University of New South Wales Law Journal 266.) [s 27C.10] Parties may opt-out of s 27C The words “unless otherwise agreed by the parties” in subs (1) allow parties to opt-out of s 27C. This could prevent consolidations without the consent of a party. [s 27C.15] Grounds necessary for consolidation Section 27C(1) sets out the prerequisites for consolidation in paras (a)–(c). [s 27C.20] If consolidating proceedings before two tribunals Under s 27C(2) a conferral and joint ruling on the consolidation application are required if there is to be a consolidation of proceedings before two tribunals. [s 27C.25] Upon consolidation new tribunal based on new agreement created The problem of non-recognition and non-enforcement of an award is avoided by s 27C(6)(c) that creates a new tribunal and a new agreement between the parties to the consolidated arbitration. [s 27C.30] Tribunal or tribunals to consider if substantial hardship to a party Under s 27C(8) the tribunal, or tribunals, are required to consider whether any party to the consolidated arbitration would or might suffer substantial hardship if an order for consolidation were made.

Power of arbitrator to act as mediator,

conciliator or other non-arbitral intermediary 27D (1) An arbitrator may act as a mediator in proceedings relating to a dispute between the parties to an arbitration agreement (mediation proceedings) if— (a) the arbitration agreement provides for the arbitrator to act as mediator in mediation proceedings (whether before or after proceeding to arbitration, and whether or not continuing with the arbitration); or (b) each party has consented in writing to the arbitrator so acting. (2) An arbitrator acting as a mediator— (a) may communicate with the parties collectively or separately; and (b) must treat information obtained by the arbitrator from a party with whom he or she communicates separately as confidential, unless that party otherwise agrees or unless the provisions of the arbitration agreement relating to mediation proceedings otherwise provide. (3) Mediation proceedings in relation to a dispute terminate if— (a) the parties to the dispute agree to terminate the proceedings; or (b) any party to the dispute withdraws consent to the arbitrator acting as mediator in the proceedings; or (c) the arbitrator terminates the proceedings. (4) An arbitrator who has acted as mediator in mediation proceedings that are terminated may not conduct subsequent arbitration proceedings in relation to the dispute without the written consent of all the parties to the arbitration given on or after the termination of the mediation proceedings. (5) If the parties consent under subsection (4), no objection may be taken to the conduct of subsequent arbitration proceedings by the arbitrator solely on the ground that he or she has acted previously as a mediator in accordance with this section. [page 139] (6) If the parties do not consent under subsection (4), the arbitrator’s mandate is taken to have been terminated under section 14 and a substitute arbitrator is to be appointed in accordance with section 15. (7) If confidential information is obtained from a party during mediation proceedings as referred to in subsection (2)(b) and the mediation proceedings

terminate, the arbitrator must, before conducting subsequent arbitration proceedings in relation to the dispute, disclose to all other parties to the arbitration proceedings so much of the information as the arbitrator considers material to the arbitration proceedings. (8) In this section, a reference to a mediator includes a reference to a conciliator or other non-arbitral intermediary between parties. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 27D.5] An arbitrator also acting as a mediator Section 27D is the most controversial section in the Act. If anyone thought that arbitrators were not passionate in regard to their craft, then they have missed the debate over whether an arbitrator can also act in the same dispute as a mediator and if necessary return to decide the dispute as an arbitrator. This debate is called the “Med/Arb debate”. This debate has divided both arbitrators and mediators. Many discussions and debates have occurred on this subject. The debate has spilled over to letters to the editors of major Australian Newspapers. The aim of the Act is to expedite resolution of disputes. This aim can be achieved through threat or use of the Act or by other means of alternative dispute resolution. This section is based on s 27 of the Uniform Acts but with substantial modification. Similar provisions occur in the Singaporean and Hong Kong Arbitration Acts. Despite extensive efforts to remove this section from the Australian domestic Arbitration Acts, the section remains and so emphasis moves from the theoretical to the practical. Careful adherence to all the requirements of this section is essential. Unlike arbitrators in other countries, Australian arbitrators are not accustomed to acting as mediators in the one action. Various arbitration, mediation, legal and other learned articles have been written on this section. For an excellent article on the role of mediators and arbitrators and the implications for both arising from this section (See: P Evans and G Moens “Reflections on the Role of Mediators and Arbitrators. Can a Good Mediator also be a Good Arbitrator?” (2009) 6 MqJBL at 265. [s 27D.10] Preconditions in subs (1) must be satisfied Either the arbitration agreement or the parties must consent in writing before the arbitrator can act as a mediator.

[s 27D.15] When acting as a mediator Subsection (2) empowers the arbitrator, when acting as a mediator, to do the things that mediators do, that he/she is to act as a mediator. The mediator may meet with the parties separately or collectively. When caucusing with a party separately the mediator is required to keep the information obtained confidential, unless given specific instructions to divulge part or all of that information to the other party or parties or unless the arbitration agreement provides otherwise. Most arbitration agreements would not provide for the arbitrator/mediator to disclose confidential information obtained in an individual caucus meeting in the course of a mediation/arbitration. [s 27D.20] Termination of the mediation The mediation will be terminated if any one of the following three events occurs: 1. the parties to the dispute may agree to terminate the proceedings; or 2. any party to the dispute withdraws consent to the arbitrator acting as mediator in the proceedings; or 3. the arbitrator terminates the proceedings.

[page 140] [s 27D.25] Bar against mediator/arbitrator continuing to act as arbitrator after the mediation is terminated Under subs (4) if the mediation is, for any of the above reasons, terminated then the arbitrator who acted as a mediator cannot, without the written consent of all of the parties to the arbitration, conduct subsequent arbitration proceedings. The consent must be given on or after the termination of the mediation process. In this way the parties are aware of the dual role played by the arbitrator and are required to sanction the reinstatement to the role of arbitrator. [s 27D.30] Effect of giving consent under subs (4) Subsection (5) states that the parties are bound by the written consent given under subs (4) to the arbitrator who acted as a mediator, to subsequently conduct arbitration proceedings the extent that they cannot object to the conduct of the subsequent arbitration proceedings by the arbitrator, solely on the ground that the arbitrator has previously acted as a mediator in accordance with subs (4). [s 27D.35] Effect of not giving consent under subs (4) In subs (6) if the parties do not consent under subs (4) the arbitrator’s mandate is terminated under

s 14 and a substitute arbitrator must be appointed under s 15. [s 27D.40] Confidentiality intersects with procedural fairness In subs (7) if during the mediation process when the mediator caucuses separately with a party (in subs 2(b)) and obtained confidential information, then before conducting subsequent arbitration proceedings the arbitrator is required to disclose to all other parties to the arbitration so much of that information as the arbitrator considers material to the arbitration proceedings. In a mediation conducted by the arbitrator under this section parties may be reluctant to disclose to the mediator, who was formally the arbitrator, confidential information as there is a risk that this information may have to be disclosed in part or whole to the other parties or parties under this subsection. [s 27D.45] Disclosure of confidential information the arbitrator considers material There is a discretion given to the arbitrator to disclose only that information obtained at individual caucusing during the mediation that is considered to be material to the arbitration proceedings. There is no requirement for the arbitrator to disclose all confidential information obtained in the mediation process but only that part of the confidential information that the arbitrator considers material to the arbitration proceedings. The parties must have trust and faith in the arbitrator to make this disclosure. [s 27D.50] Mediator includes conciliator or other non-arbitral intermediaries In subs (8) it states that in this section reference to a mediator includes a reference to a conciliator or other non-arbitral intermediary between parties.

Disclosure of confidential information 27E (1) The provisions of this section apply in arbitral proceedings unless otherwise agreed by the parties. (2) The parties must not disclose confidential information in relation to the arbitral proceedings unless— (a) the disclosure is allowed under section 27F; or (b) the disclosure is allowed under an order made under section 27G and no order is in force under section 27H prohibiting that disclosure; or (c) the disclosure is allowed under an order made under section 27I.

(3) An arbitral tribunal must not disclose confidential information in relation to the arbitral proceedings unless— (a) the disclosure is allowed under section 27F; or [page 141] (b) the disclosure is allowed under an order made under section 27G and no order is in force under section 27H prohibiting that disclosure; or (c) the disclosure is allowed under an order made under section 27I. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 27E.5] Information disclosed in arbitration confidential Under s 27E the information disclosed in arbitration is confidential. Section 27E prevails over the common law. Disclosure of confidential information is allowed as long as it is within the Act. The exceptions are set out in ss 27F–27I. [s 27E.10] Section 27E a default or non-mandatory provision — an optout regime “unless otherwise agreed” In subs (1) the provisions of s 27E apply “unless otherwise agreed.” The parties opt-out by agreeing in the arbitration agreement, or in a later agreement, that this provision does not apply. Caution should be exercised by parties agreeing to rules for the conduct of an arbitration set by an outside body or organisation, eg, “The Rules for the Conduct of an Arbitration”. In some instances, these “rules” contain provisions stating that parties must opt-in if they want a “statutory” regime for confidentiality to apply. (See: IAA Rules ss 22(3)(a) and 23C.) [s 27E.15] Opt-out regime avoids decision in Esso Australia Resources Ltd v Plowman The opt-out regime avoids the finding in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; 128 ALR 391, that confidentiality was not an essential attribute of a private arbitration. (See also: Croft, “Arbitration Law Reform and the Arbitration List G of the Supreme Court of Victoria”, a paper presented to the Building Dispute Practitioners’ Society Inc and the Business Law Section of the Law Council of Australia (Construction and Infrastructure Committee), Melbourne, 5 May 2010) and a paper presented to the 50th Anniversary ICCA Conference in May 2010 (Geneva).

[s 27E.20] Parties must not disclose confidential information unless- In subs (2) the parties to a domestic arbitration must not disclose confidential information unless the requirements of paras (a)–(c) are met. [s 27E.25] Arbitral tribunal must not disclose confidential information unless- In subs (3) the arbitral tribunal must not disclose confidential information unless the requirements of (a)–(c) are met. The requirements in (a)– (c) in subs (2) and (3) are the same. [s 27E.30] “Disclose” defined in s 2 “disclose”, in relation to confidential information, includes publishing or communicating or otherwise supplying the confidential information. [s 27E.35] “Confidential information” defined in s 2 “confidential information”, in relation to arbitral proceedings, means information that relates to the arbitral proceedings or to an award made in those proceedings and includes the following: (a) the statement of claim, statement of defence and all other pleadings, submissions, statements or other information supplied to the arbitral tribunal by a party; (b) any information supplied by a party to another party in compliance with a direction of the arbitral tribunal; (c) any evidence (whether documentary or otherwise) supplied to the arbitral tribunal; (d) any notes made by the arbitral tribunal of oral evidence or submissions given before the arbitral tribunal;

[page 142] (e) any transcript of oral evidence or submissions given before the arbitral tribunal; (f) any rulings of the arbitral tribunal; (g) any award of the arbitral tribunal. [s 27E.40] Disclosure of confidential information (See: annotations to s 2 above at [s 2.45].)

Circumstances in which confidential information may be disclosed 27F (1) This section sets out the circumstances in which confidential information in relation to arbitral proceedings may be disclosed by— (a) a party; or (b) an arbitral tribunal. (2) The information may be disclosed with the consent of all the parties to the arbitral proceedings. (3) The information may be disclosed to a professional or other adviser of any of the parties. (4) The information may be disclosed if it is necessary to ensure that a party has a reasonable opportunity to present the party’s case and the disclosure is no more than reasonable for that purpose. (5) The information may be disclosed if it is necessary for the establishment or protection of a party’s legal rights in relation to a third party and the disclosure is no more than reasonable for that purpose. (6) The information may be disclosed if it is necessary for the purpose of enforcing an arbitral award and the disclosure is no more than reasonable for that purpose. (7) The information may be disclosed if it is necessary for the purposes of this Act and the disclosure is no more than reasonable for that purpose. (8) The information may be disclosed if the disclosure is in accordance with an order made or subpoena issued by a court. (9) The information may be disclosed if the disclosure is authorised or required by a relevant law or required by a competent regulatory body, and the person making the disclosure gives written details of the disclosure (including an explanation of the reasons for the disclosure) to— (a) if the person is a party—the other parties and the arbitral tribunal; and (b) if the arbitral tribunal is making the disclosure—all the parties. (10) In this section— relevant law means— (a) a law of this State (other than this Act); and (b) a law of the Commonwealth; and (c) a law of another State or Territory. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 27F.5] Arbitration is a private procedure This section emphasises the private nature of arbitration and the limitations on disclosure imposed on a party or a tribunal member. Parties should ensure that they are familiar with the Rules of Nominating Bodies in regard to disclosure of confidential information before agreeing to adopt those rules in any arbitration.

[page 143] [s 27F.10] Disclosure no more than reasonable Not every document or piece of information is required to be disclosed. (See: Brennan J in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 38; 128 ALR 391.) Discovery is only required of what is reasonable. Although discovery is necessary there is a requirement of proportionality in making disclosure. This applies to ss 27G, 27H and 27I. [s 27F.15] Disclosure allowed Subsections (2)–(9) set out various examples of the circumstances under which disclosure is allowed. The subsections include the examples given by Brennan J in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 36; 128 ALR 391 where he stated: I would hold that, in an arbitration agreement under which one party is bound to produce documents or disclose information to the other for the purposes of the arbitration an in which no other provision for confidentiality is made, a term should be implied that the other party will keep the documents produced and the information disclosed confidential except (a) where disclosure of the otherwise confidential material is under compulsion by law; (b) where there is a duty, albeit not a legal duty, to the public to disclose; (c) where disclosure of the material is fairly required for the protection of the party’s legitimate interests; and (d) where disclosure is made with the express or implied consent of the party producing the material. [s 27F.20] Disclosure to enable reasonable opportunity to present case The legal advisers of parties have litigation experience in the disclosure to persons, including witnesses, to enable a case to be presented and the giving of

appropriate warnings to those parties on the use of the disclosed information. An adoption of such practices in arbitrations may prevent any infringement of the wide power of disclosure given in s 27F(4). [s 27F.25] Disclosure is necessary for establishment or protection a party’s legal rights in relation to a third party The wording in s 27F(5) “establishment or protection of a party’s legal rights in relation to a third party” allow disclosure by a plaintiff or defendant to a claim involving the legal rights in relation to a third party (See: Ali Shipping Corp v Shipyard Trogir [1998] 2 All ER 136; [1999] 1 WLR 314). [s 27F.30] Disclosure is allowed if it is for the purpose of enforcing an arbitral award Under s 27F(6) disclosure is allowed if it is for the purpose of enforcing an award but the disclosure is to be no more than reasonable for that purpose. In arbitration, as in litigation, there must be finality to the process that is assisted by this subsection. [s 27F.35] Disclosure allowed if for the purposes of the Act Under s 27F(7) disclosure of confidential information is allowed if it is for the purposes of the Act but it is limited to no more than is reasonable for that purpose. [s 27F.40] Disclosure is allowed if in accordance with an order or subpoena issued by a court Under s 27F(8) disclosure is allowed if it is given pursuant to a court order or a subpoena issued by a court. In the court hearing prior to the granting of the order or the subpoena the parties have the opportunity to raise the issue of confidentiality. [s 27F.45] Disclosure of confidential information (See: annotations to s 2 above at [s 2.45].) [s 27F.50] Disclosure may be made if required by relevant law or competent regulatory body Under s 27F(9) disclosure is allowed if it is required by a relevant law or a competent regulatory body and the party making disclosure gives written details of the disclosure in accordance with paras (a) and (b). This subsection encapsulates the comments of Brennan J in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 35 where he stated:

[page 144]

Where a party is in possession of a document or information and is under a duty at common law or under statute to communicate the document or information to a third party, no contractual obligation of confidentiality can prohibit the performance of that duty. (Parry Jones v Law Society [1969] 1 Ch 1 at 9, cited in A v B Bank [1993] QB 311 at 322–3.) … Subsection (9)(a) states that notification of disclosure (presumably this includes an intention to disclose) is to be given to the other party or parties and to the arbitral tribunal. The subsection also includes disclosure by the arbitral tribunal under subs (9)(b) where notice must be given to all the parties. The relevant law is defined in subs (10). [s 27F.55] Relevant law The relevant law is defined in subs (10) as: (a) the law of the state (other than this Act); and (b) the law of the Commonwealth; and (c) the law of another state and territory.

Arbitral tribunal may allow disclosure of confidential information in certain circumstances 27G (1) An arbitral tribunal may make an order allowing a party to arbitral proceedings to disclose confidential information in relation to the proceedings in circumstances other than those mentioned in section 27F. (2) An order under subsection (1) may only be made at the request of one of the parties and after giving each of the parties the opportunity to be heard. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 27G.5] Prohibition on disclosure of confidential information Upon an application by one of the parties on notice to the other party or parties, the arbitral tribunal has discretion to allow the disclosure of confidential information. Notice must be given to the other party and each party must have the opportunity to be heard before the disclosure is made by the arbitral tribunal.

This power extends the tribunal’s power under s 27F.

The Court may prohibit disclosure of confidential information in certain circumstances 27H (1) The Court may make an order prohibiting a party from disclosing confidential information in relation to the arbitral proceedings if the Court is satisfied, in the circumstances of the particular case, that— (a) the public interest in preserving the confidentiality of arbitral proceedings is not outweighed by other considerations that render it desirable in the public interest for the confidential information to be disclosed; and (b) the disclosure is more than is reasonable for that purpose. (2) An order under subsection (1) may only be made on the application of a party to the arbitral proceedings and after giving each of the parties to the arbitral proceedings the opportunity to be heard. (3) A party may only apply for an order under subsection (1) if the arbitral tribunal has made an order under section 27G(1) allowing disclosure of the information. [page 145] (4) The Court may order that the confidential information not be disclosed pending the outcome of the application under subsection (2). (5) An order of the Court under this section that is made within the limits of the authority of the Court is final. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 27H.5] Court may prohibit disclosure of confidential information in

certain circumstances Under subs (1) the court can prohibit a party from disclosing confidential information in regard to the arbitral proceedings if in the particular circumstances the court is satisfied that both of the following requirements are met. The public interest in preserving the confidentiality of the arbitral proceedings must outweigh the other considerations that render it desirable for the confidential information to be disclosed. The second requirement is that the disclosure is more than is reasonable for that purpose. The particular facts and circumstances of the case often determine the balancing the “public interest” in allowing disclosure and the “public interest” in maintaining confidentiality of the arbitral process. [s 27H.10] Does the public interest demand the disclosure of government documents? The comments of a former Commonwealth Solicitor General and later Chief Justice on this topic are relevant to those involved in arbitrations involving the disclosure of government documents. In Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, Mason CJ stated at 31: The courts have consistently viewed governmental secrets differently from personal and commercial secrets (Attorney-General v Jonathan Cape Ltd [1976] QB 752; Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39; 32 ALR 485; Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86; Attorney-General v Guardian Newspapers Ltd [No 2] [1990] 1 AC 109). As I stated in Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 51, the judiciary must view the disclosure of governmental information through “different spectacles”. This involves a reversal of proof: the government must prove that the public interest demands non-disclosure (John Fairfax above, at 52). [s 27H.15] Pre-requisites before an order can be granted under subs (1) Subsection (2) sets out the pre-requisites before an order can be granted under subs (1). The applicant must be or have been a party to the arbitral proceedings and must give notice to each person who is or was a party to the arbitral proceedings. This subsection has similar but not identical wording to s 27G(2). This subsection is the same as s 27I(2). [s 27H.20] Initial application to arbitral tribunal Under subs (3) the application by a party to the arbitral proceedings can only apply under subs (1) if the tribunal has made an order under s 27G(1) allowing disclosure. The tribunal must have made an order before an application can be made to the court. (See: Emmott v Michael Wilson & Partners [2008] 1 Lloyd’s Rep 616.) The

requirement for the arbitral tribunal to make an order before the court can intervene is consistent with Pt 4—Jurisdiction of Arbitral Tribunal, s 16; and Pt 4A—Interim Measures, ss 17 and 17A. [s 27H.25] Court can order that confidential information not be disclosed pending the outcome of an application under subs (2) Under subs (4) the court has power to order that confidential information not be disclosed pending the outcome of an application under subs (2). [s 27H.30] Order made within the limit of the authority of the court is final Under subs (5) an order made under s 27H, if made within the limit of the authority of the court, is final.

[page 146] [s 27H.35] Link between s 27H prohibiting disclosure and s 27I allowing disclosure The court’s discretion under s 27H prohibiting disclosure is the reverse side of the court’s discretion in s 27I to allow disclosure of confidential information. [s 27H.40] Authorities Where government institutions, instrumentalities or agencies are concerned there has been reluctance by courts to imply a term of confidentiality into the arbitration agreement. (See: Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 31; 128 ALR 391 per Mason CJ (with whom McHugh and Dawson JJ agreed)). Brennan J, at 36, stated: I would imply an obligation of confidentiality as a matter of business efficacy but limit the implication by reason of the likelihood that one or other party would have reserved the right to disseminate otherwise confidential material in certain situations. (See also Toohey J in Plowman, above, at 48 (cited at [s 27I.5]); and Commonwealth v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662; and [s 2.30].)

The Court may allow disclosure of confidential information in certain circumstances 27I (1) The Court may make an order allowing a party to disclose confidential information in relation to the arbitral proceedings in circumstances other than those mentioned in section 27F if the Court is satisfied, in the circumstances of the particular case, that— (a) the public interest in preserving the confidentiality of arbitral proceedings is outweighed by other considerations that render it desirable in the public interest for the confidential information to be disclosed; and (b) the disclosure is no more than is reasonable for that purpose. (2) An order under subsection (1) may only be made on the application of a person who is or was a party to the arbitral proceedings and after giving each person who is or was a party to the arbitral proceedings the opportunity to be heard. (3) A party to arbitral proceedings may only apply for an order under subsection (1) if— (a) the mandate of the arbitral tribunal has been terminated under section 32; or (b) a request by the party to the arbitral tribunal to make an order under section 27G has been refused. (4) An order of the Court under this section that is made within the limits of the authority of the Court is final. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 27I.5] Court may allow disclosure of confidential information if it is in the public interest Under subs (1) upon an application by a party the court may allow disclosure of confidential information in circumstances other than s 27F. The court must be satisfied that the public interest in preserving confidentiality of the arbitral proceedings is outweighed by other considerations

making it desirable in the public interest for the confidential information to be disclosed. In addition, the disclosure is no more than is reasonable for that purpose. In this subsection, as in s 27H(1), there is an “and” linking paras (a) and (b) indicating that both must be satisfied before an order can be made.

[page 147] [s 27I.10] Pre-requisites before an order can be granted under subs (1) Subsection (2) sets out the pre-requisites before an order can be granted under subs (1). The applicant must be or have been a party to the arbitral proceedings and must give notice to each person who is or was a party to the arbitral proceedings. This subsection has similar but not identical wording to s 27G(2). This subsection is the same as s 27H(2). [s 27I.15] Link between s 27I allowing disclosure and s 27H prohibiting disclosure The court’s discretion under this section to allow disclosure of confidential information is the reverse side of the court’s discretion in s 27H prohibiting disclosure. (See: [s 27H.25] and [s 27H.30].) [s 27I.20] Limits on party applying under subs (1) Under subs (3) a party to arbitral proceedings may only apply for an order if one of paras (a) or (b) apply. There is an “or” between paras (a) and (b). The ground for making an order under para (a) is that the mandate of the arbitral tribunal has been terminated under s 32. The alternative ground under para (b) is that the party has made a request for disclosure of confidential information under s 27G that has been refused. [s 27I.25] A “public interest” exception? The arbitration over the gas prices paid by two public utilities that on-sold the gas to consumers from the offshore Bass Strait oil fields, clearly raised the issue of whether there was a public interest exception to arbitration proceedings being confidential. In Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; 128 ALR 391, Mason CJ stated, at CLR 31: For my part, if an obligation of confidence existed by virtue of the fact that the information was provided in and for the purposes of arbitration, this statement of the qualification seems unduly narrow. It does not recognise that there may be circumstances, in which third parties and the public have a legitimate

interest in knowing what has transpired in an arbitration, which would give rise to a “public interest” exception. The precise scope of this exception remains unclear. Brennan J stated, at 36: Where a party in possession of a document or information and is under a duty at common law or under statute to communicate the document or information to a third party, no contractual obligation of confidentiality can prohibit the performance of that duty (Parry-Jones v Law Society [1969] 1 Ch 1 at 9). Moreover, a party may be under a duty not necessarily a legal duty, to communicate documents or information to a third party who has an interest in the progress or outcome of the arbitration. To take an example, it could not be supposed, in the absence of a clear contrary indication, that a party which is a wholly owned subsidiary of a holding company intended to keep confidential from its holding company documents or information relating to the matter in dispute in the arbitration. Nor could party be taken to have intended that it would keep confidential documents or information which it wish to reveal for the protection of its own interests. Nor could a party be taken to have intended that it would keep confidential documents or information when the party has an obligation, albeit not a legal obligation, to satisfy a public interest — more than mere curiosity — in knowing what is contained in the documents or information. Brennan J continued, at 37: In the present case, the Minister has a statutory right under the State Electricity Commission Act 1958 (Vic) (SEC Act) to obtain information from the State Electricity Commission of Victoria (SECV). It is the duty of the SECV to furnish the minister with the with the information required under that subclause and that duty cannot be defeated by any contractual duty to keep documents or information confidential. Any implied obligation of confidentiality must be qualified accordingly. Further the Gas and Fuel Corporation of Victoria (GFC) and SECV are public authorities. They are engaged in the supply of energy in the State of Victoria. The award to be made in the respective arbitrations will affect the price of the energy supplied by the appellants to GFC and SECV and by them to the public. The public generally has a real

[page 148] interest in the outcome, and perhaps in the progress, of each arbitration which the relevant public authority has a duty to satisfy. GFC and SECV have a duty — possibly a legal duty in the case of an upper case is the SECV but at least a moral duty in the case of both public authorities — to account to the public for the manner in which they perform their functions. Public authorities are not to be taken, prima facie, to have bound themselves to refrain from giving an account of their functions in an appropriate way: sometimes by giving information to the public directly, sometimes by giving information to a Minister, to a government department or to some other public authority. The duty to convey information to the public may not operate uniformly on each document or piece of information which is given to the GFC or SECV for the purpose of the particular arbitration. Performance of the duty to the public is unlikely to require the revelation of every document or piece of information. It may be possible to respect the commercial sensitivities of information contained in particular documents while discharging their duty to the public end, where that is possible, the general obligation of confidentiality must be respected. Toohey J stated, at 46: In conventional litigation, documents which are disclosed in produced by one party to another pursuant to the rules of court relating to discovery of documents are subject to an implied undertaking that they will not be used for any purpose other than in relation to the litigation itself (Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613 at 618–20; Riddick v Thames Board Mills Ltd [1977] QB 881 at 895–6; Home Office v Harman [1983] 1 AC 280). There is no reason in principle why the same obligation should not attached to documents produced at the instance of an arbitrator. Indeed, given the private nature of the arbitration hearing, there is every reason why the obligation should attach. In Hassneh Insurance Co Israel v Mew [1993] 2 Lloyd’s Rep 243 at 247 Coleman J said: In as much as the parties to an English law arbitration impliedly agree to use English discovery procedure, or at least to submit to the possibility that such procedure will apply, it must by implication be their mutual obligation to accord to documents disclosed for the

purposes of the arbitration the same confidentiality which would attached to those documents if they were litigating their disputes as distinct from arbitrating them. The fact that the proceedings are in private lends weight to the necessity for that implication. What Coleman J said of the position in England applies equally to Australia. Toohey J further added, at 48: Any aspect of disclosure to third parties must infringe the privacy of the arbitration. Thus, if one party is free to disclose to a newspaper or media outlet the progress of an arbitration and the evidence adduced in its course, the notion of privacy is meaningless. There must be an underlying principle, significantly qualified in accordance with these reasons, that a party to an arbitration is under a duty not to disclose to a third party documents and information obtained by reason of the arbitration. Although it did not arise in this appeal, I agree with the Chief Justice that there is a “public interest” exception to the principle. But it is unnecessary and inappropriate to discuss the boundaries of that exception. In Commonwealth v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662 at 680 Kirby P stated: … It is one thing as Mason CJ pointed out in Esso, to protect with confidentiality documents which a party has been obliged by law to produce for inspection on discovery or for the purposes of proceedings. It is quite another to cast the net of confidentiality protection so wide that it embraces a party’s own documents perhaps prepared for the purposes of arbitration but having a wider public interest and utility. Were the law otherwise, a question would be raised as to how the Commonwealth, with its large constitutional and legal rights and duties could

[page 149] ever submit to a private arbitration the result of doing which might be to surrender its governmental rights and duties completely to procedural orders of an arbitrator which were effectively if not entirely unreviewable.

This line of reasoning was further developed, at 681, where Kirby P stated: It is inconsistent with the common law bias in favour of the public’s right of access to information, now reinforced by legislation such as the Freedom of Information Act and more lately further supported by constitutional principle, to hold that an arbitrator, pursuant to a private contract or procedural powers conferred by the Act can effectively oust the Commonwealth’s own assessment of the public interest and the use of its documents in furtherance of that interest and its governmental duty to protect it … [s 27I.30] Is “the public interest” exception in Australia wider than the English “interests of justice” exception to confidentiality? In Ali Shipping Corp v Shipyard Trogir [1998] 2 All ER 136; [1999] 1 WLR 314 at 328 Potter LJ said: As a matter of terminology, I would prefer to recognise such an exception under the heading of “interests of justice” rather than “the public interest”, in order to avoid the suggestion that use of the latter phrase is to be read as extending to the wider issues of public interest contested in Esso. In Emmott v Michael Wilson & Partners Ltd [2008] 2 All ER (Comm) 193; [2008] 1 Lloyd’s Rep 616, Lawrence Collins LJ stated, at [103]–[107], and concluded: [103] The position can be summarised as follows. The conduct of the arbitration is private. That is implicit in the agreement to arbitrate. That does not mean that the arbitration is private for all purposes. Prior to the modern arbitration legislation some of the important cases in the law of contract or in the conflict of laws were decided in the context of cases stated by arbitrators for determination by the court. Those decisions identified the parties and the nature of the dispute; eg, Suisse Atlantique Societe d’ Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1966] 1 Lloyd’s Rep 529; [1966] 2 All ER 61 (fundamental breach of contract); Companie d’Armement Maritime SA v Companie Tunisienne de Navigation SA [1970] 3 All ER 71; [1970] 2 Lloyd’s Rep 99 (proper law of the contract). [104] Today there is an increasing trend for the privacy of arbitration to be protected. That is illustrated by the rules in CPR Pt 62 and the Practice Direction allowing arbitration claims to be heard in private and restricting (but not prohibiting) access to the court file by strangers to the arbitration. But it is clear from Department of Economic Policy and Development of the City of

Moscow v Bankers Trust Co [2005] QB 207 that this policy may have to give way to the public interest. Consequently even under the modern law since the 1996 Act there will still be cases where the details of an arbitral dispute may become public, eg, where a party seeks an injunction to restrain court proceedings brought in breach of an arbitration agreement (eg West Tankers Inc v RAS Riunione Adriatica di Sicurta SpA [2007] 1 Lloyd’s Rep 391; [2001] 1 All ER (Comm) 794) or where a court deals with a challenge to an award for serious irregularity or an appeal on a point of law (eg Lesotho Highlands Development Authority v Impreglio SpA [2006] 1 AC 221) or where enforcement of an award is resisted on grounds of public policy (eg Westacre Investments Inc v Jugoimport-SPDR Holding Co Ltd [1999] 2 Lloyd’s Rep 65; [2000] QB 288). [105] But case law over the last 20 years has established that the there is an obligation, implied by law and arising out of the nature of the arbitration, on both parties not to disclose or use for any other purpose any documents prepared for and used in the arbitration, or disclosed or produced in the course of the arbitration, or transcripts or notes of the evidence in the

[page 150] arbitration or the award, and not to disclose in any other way what evidence has been given by any witnesses in the arbitration. The obligation is not limited to commercially confidential information in the traditional sense. [106] As I have said above, this is in reality a substantive rule of arbitration law reach through the device of an implied term. That approach has led to difficulties of formulation and reliance (perhaps, over-reliance) on the banking principles in Tournier. [107] In my judgment the content of the obligation may depend on the context in which it arises and on the nature of the information or documents at issue. The limits of that obligation are still in the process of development on a caseby-case basis. On the authorities as they now stand, the principal cases in which disclosure will be permissible are these: the first is where there is consent, express or implied; second, where there is an order, or leave of the court (but that does not mean that the court has a general discretion to lift the obligation of confidentiality); third, where it is reasonably necessary for the

protection of the legitimate interests of an arbitrating party; fourth, where the interest of justice require disclosure, and also (perhaps) where the public interest requires disclosure. [s 27I.30] Privacy The common law in Australia protects the privacy of parties to arbitration. The Act, unlike the New Zealand Act, makes no specific provision guaranteeing the privacy of arbitral proceedings. Private was taken as meaning not open to the public by Mason CJ in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 26; 128 ALR 391 where he stated: Subject to any manifestation of a contrary intention arising from the provisions or the nature of an agreement to submit a dispute to arbitration, the arbitration held pursuant to the agreement is private in the sense that it is not open to the public … The arbitrator will exclude strangers from the hearing unless the parties consent to attendance by a stranger. Persons whose presence is necessary for the proper conduct of the arbitration are not strangers in the relevant sense. For a perspective on the English law see: Emmott v Michael Wilson & Partners Ltd [2008] 1 Lloyd’s Rep 616 at 625, 632 per Lawrence Collins LJ (See: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427). [s 27I.35] Subsequent proceedings for the recognition or the enforcement of the award or an appeal against the award Unfortunately, the Act does not contain a provision equivalent to the position under the Arbitration Act 1966 (NZ) where subsequent court proceedings are not subject to privacy. (See: New Zealand Law Commission Report 83, Improving the Arbitration Act 1996 at [25]–[53].) If this issue is raised by a party it is highly likely that a court will exercise its discretion in favour of maintaining open access to the courts. (See: [s 2.30].) The New Zealand Act provides for an “open justice” for subsequent proceedings with a specific statutory provision that such proceedings are not private. This is in contrast to the Singapore and Hong Kong Acts where subsequent proceedings are held in a closed court. [s 27I.40] Institutional rules protecting confidentiality and privacy If the parties agree to choose to opt-out of this section, they can select the Institutional Rules of a nominating body that have a range of provisions on confidentiality and privacy. For example, the UNCITRAL Arbitration Rules (UNCITRAL Rules) represent one end of the spectrum providing few rules on

confidentiality of the award in contrast to the Australian Centre for International Arbitration (ACICA Rules) that contain detailed provisions on confidentiality. (See also: The London Court of International Arbitration (LCIA Rules) and the Institute of Arbitrators & Mediators Australia (IAMA Rules). Article 3 Article of the UNCITRAL Rules states: 28.3 Hearings shall be held in camera unless the parties agree otherwise. The arbitral tribunal may require the retirement of any witness or witnesses during the testimony of such

[page 151] other witnesses, including an expert witness, including expert witness during the testimony of such other witnesses, except that a witness, including an expert witness, who is a party to the arbitration shall not in principle be asked to retire. Croft, Kee and Waincymer, A Guide to the UNCITRAL Arbitration Rules, Cambridge University Press, Melbourne, 2013, comment (329–39) it states: 28.10 Article 28 (3) contains the general provision that hearings will be held in camera unless the parties agree otherwise. Two points need to be noted with respect to this provision. First, the matter is one for the parties alone. Their consent or agreement does not require the endorsement or consent of the arbitral tribunal. Second, it is not open to the arbitral tribunal to decide not to hold hearings in camera, and nor can be arbitral tribunal refuse to hold the hearings other than in camera if that is the agreement of the parties. Consequentially, these provisions comprise the general power conferred on the arbitral tribunal under Art 17(1) “to conduct the arbitration in such manner as it considers appropriate”. 28.11 The holding of arbitration proceedings in camera is consistent with, for example, the views of the High Court of Australia with respect to the confidentiality or otherwise of arbitral proceedings. In Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, the High Court decided that arbitration proceedings in Australia were private, but not confidential. That is not the position in other jurisdictions and as such regard must be had to the lex arbitri. These provisions of the revised

Rules do not take the next step of providing for confidentiality, they only provide for privacy. 28.12 The remaining provisions of Art 28(3) are consistent with the general powers of the arbitral tribunal under Art 17(1). They are express powers to require the retirement of factual and expert witnesses from the hearing, as the arbitral tribunal thinks is necessary. There is, however, an exception provided for, not in the sense of a mandatory requirement but rather a requirement “in principle” that factual and expert witnesses ought not be excluded where they are parties to the arbitral proceedings. These provisions and the exceptions all sit, of course, within the general obligation imposed on arbitral tribunals under Art 17(1), to ensure that the parties are treated with equality and that each is given an opportunity of presenting its case. [s 27I.45] Order made within the limit of the authority of the court is final Under subs (4) an order made under s 27I, if made within the limit of the authority of the court, is final. [s 27I.50] Enforcement of breaches of confidentiality There is no specific provision empowering the Court to enforce confidentiality breaches. Note: The Court is empowered under s 5 to intervene where expressly provided.

Determination of preliminary point of law by the Court 27J (1) Unless otherwise agreed by the parties, on an application to the Court made by any of the parties to an arbitration agreement the Court has jurisdiction to determine any question of law arising in the course of the arbitration. (2) An application under this section may be made by a party only with the consent of— (a) an arbitrator who has entered on the reference; or (b) all the other parties— and with the leave of the Court. Note There is no equivalent to this section in the Model Law.

[page 152]

ANNOTATIONS [s 27J.5] “Unless otherwise agreed by the parties” This is an “opt-out” provision. The parties can agree that this section does not apply to their domestic arbitration. Parties and their advisors must exercise caution when considering whether to “opt-out”. [s 27J.10] Consent needed before making application Under s 27J(1) a party can apply but only with the consent of (a) an arbitrator who has entered on the reference; or (b) of all the other parties and with the leave of the Court. [s 27J.15] Paramount object considered by arbitral tribunal before granting consent The paramount object of this Act (s 1AC) to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense is a factor considered by the tribunal before granting consent. (See: [s 2.30] and [s 2.35].) [s 27J.20] Court to exercise its discretion in accepting preliminary point of law The Court has power to refuse a question of law under s 27J if the question is such that the answer is not one that goes to the kernel of the dispute between the parties and its answer will not facilitate the arbitration. (See: Anderson J in WMC Resources Ltd v Leighton Contractors Pty Ltd (1999) 15 BCL 49 at 54 (overruled on other grounds in (1999) 20 WAR 489; (2000) 16 BCL 53; [1999] WASCA 10: As to the discretion point, I accept the submission … that I have discretion not to answer any particular question should I be of the opinion that no good purpose would be served by answering it or if the question involves an appreciation of the evidence. In my opinion, unless the answer to a question of law can be given without reference to evidentiary matters and will facilitate the arbitration, the court should, in the exercise of its discretion, decline to answer the question. Nor should the court go further in answering any question than is strictly necessary to facilitate the arbitration. Without acknowledgment, Anderson J was following the view expressed by Donaldson LJ in Babanaft International Co SA v Avant Petroleum Inc (The

Oltenia) [1982] 3 All ER 244; [1982] 1 WLR 871 at 876: Nevertheless, it should be emphasised that the High Court has a discretion whether or not to grant such an application. It is a not uncommon experience to be faced in the Divisional Court of the Queens Bench Division with a question of law stated by justices which, although important as a question, can on the facts found only be entered by saying, “Well it all depends”. If such were the position, it would not be surprising if an application were refused notwithstanding the fact that it was supported by both parties. [s 27J.25] Can a party withdraw its consent? In Roberts v Roberts [1994] 12 WAR 505, Kennedy JA stated at 520: In my opinion, it is now far too late in the day for the claimants to argue that this court should decline to answer enter the questions raised in the case stated on the ground that the answers will not materially advance the final determination of the disputes between the parties. As I have indicated, the claimants did not appeal against the orders made by the Master, they joined in stating the case and in agreeing the facts, and it was on their motion that the case stated was referred to the Full Court. Nothing which I have said, however, should be regarded as preventing the exercise by the Full Court of any discretionary power, on the hearing of the case stated, to decline to answer the question if some other consideration should arise which justifies that course.

[page 153] Rowland JA stated, at 522, “Nothing has been put before us which would justify this Court in giving leave to withdraw consent in this matter”.

PART 6 — MAKING OF AWARD AND TERMINATION OF PROCEEDINGS

Rules applicable to substance of dispute 28 (cf Model Law Art 28)

(1) The arbitral tribunal must decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. (2) Any designation of the law or legal system of a given State or Territory must be construed, unless otherwise expressed, as directly referring to the substantive law of that State or Territory and not to its conflict of laws rules. (3) Failing any designation by the parties, the arbitral tribunal must apply the law determined by the conflict of laws rules which it considers applicable. (4) The arbitral tribunal must decide the dispute, if the parties so agree, in accordance with such other considerations as are agreed to by the parties. (5) In all cases, the arbitral tribunal must decide in accordance with the terms of the contract and must take into account the usages of the trade applicable to the transaction. Note This section (other than subsection (4)) is substantially the same as Art 28 of the Model Law.

ANNOTATIONS [s 28.5] Party autonomy Party autonomy applies in regard to: (1) choice of the legal system; (2) choice of the substantive rules of law to apply to any dispute. [s 28.10] Rules of law In subs (1) party autonomy prevails in choosing the “rules of law” applicable for deciding the substance of any dispute between the parties or the law applicable to the merits of the dispute. [s 28.15] Effect of designation of a system of law In subs (2) any designation of the system of law of a state and territory is a reference to the substantive laws of that state and not to its conflict of laws rules. [s 28.20] Failure of parties to designate a system of law In the absence of a designation by the parties the arbitral tribunal is to apply the law determined by the conflict of laws rules that it considers applicable under subs (3). The tribunal does not determine the substantive rules of law applicable.

[s 28.25] Avoiding “renvoi” “Renvoi” is French for sending back. It is the conflict of laws’ problem that occurs when a forum court is directed, by its choice of laws rules, to the law of another country whose rules in turn direct the matter back to the forum court or to a court of a third country. (See: LexisNexis Concise Legal Dictionary, 4th ed, LexisNexis Butterworths, Sydney, 2011). Renvoi is avoided by using subss (2) and (3) that avoid the conflict of laws rules and a reference to a system of law is a reference to the substantive laws of that state. The substantive law and not the conflict of laws rules are used in the determination of the dispute. (See: M Davies, A Bell, P Brereton, Nygh’s Conflict of Laws in Australia, 8th ed, LexisNexis, Sydney, 2010.)

[page 154] [s 28.30] Sections 2(2) and 28 Section 28 is an exception listed in s 2(2). Section 2(2) prevents a third party making a determination of an issue under this section. This means that the arbitral tribunal, under s 28(3), is to apply the law determined by the conflict of laws rules. The tribunal does not determine the substantive rules of law applicable. The tribunal must under s 28(3) apply “the law” and not the rules of law that could be used if the parties exercised their autonomy and agreed on the rules of law. [s 28.35] Subsection (4) This section provides scope for the parties to agree that the arbitral tribunal is to take into consideration in deciding the dispute, a wider range of considerations than under s 28(1). This could include, but is not limited to reports on legislation, present or proposed, equivalent sections in the Arbitration Acts in other countries. This section is the equivalent of s 46(1)(b) of the Arbitration Act 1996 (Eng). Parties agreeing to use subs (4) should exclude the right of appeal under s 34A. [s 28.40] Deciding ex aequo et bono or as amiable compositeur Parties can agree that the arbitrator is to act as amiable compositeur and to act ex aequo bono under subs (4). Article 28 of the Model Law refers to deciding ex aequo et bono or as amiable compositeur. These terms were found in s 22(2) of the Uniform Arbitration Acts. In attempting to simplify their meaning circular reasoning is applied or one term is conflated to mean the other in the following way. To decide ex aequo et bono is to decide what is fair and right. To act as an amiable compositeur is to decide

ex aequo bono. The authorities cited below indicate that the meaning of the two terms is complex and difficult. The meaning of s 22(2) of the Commercial Arbitration Act 1984 (Vic) arose in Yesodei Hatorah College Inc v Trustees of the Elwood Talmud Torah Congregation [2011] VSC 622 (Yesodei), where the Arbitration Agreement empowered the arbitrator to “ … determine any question that arises for determination in the course of the arbitration by reference to consideration of justice and fairness”. [s 28.45] Section 22 of the Commercial Arbitration Act 1984 (Vic) Section 22 of the Commercial Arbitration Act 1984 (Vic) provided: 22. Arbitrator to decide according to law or fairness (1) Unless otherwise agreed in writing by the parties to the arbitration agreement, any question that arises for determination in the course of proceedings under the agreement shall be determined according to law. (2) If the parties to an arbitration agreement so agree in writing, the arbitrator or umpire may determine any question that arises for determination in the course of proceedings under the agreement by reference to considerations of general justice and fairness. In relation to s 22(2) the arbitrator stated in his award as follows at [34] of Yesodei: I am satisfied that in determining whether a concluded agreement for lease was entered into on 25 February 2008 between the Congregation and the College I must apply the law, in in particular the common law principles, relating to the formation of enforceable contracts. Section 22(2), in my opinion, has no operation in determining this question. [plaintiff’s emphasis] In Yesodei, the College made submissions that the arbitrator made errors of law in failing to apply s 22(2) of the Act to the determination of the matters in dispute. The College also submitted that there was no basis for the arbitrator to conclude that s 22(2) of the Act had no operation in determining whether the parties had entered into an agreement for lease. Further, the College submitted that the failure to apply s 22(2) of the Act in determining whether there was an agreement for lease, was a breach of the terms of the arbitration agreement. A breach of the arbitration agreement would be a “manifest error of law” on the face of the award and also constituted “technical” misconduct (see McDougall J in Hewitt v Mckensey [2003] NSWSC 1186). The College also submitted that the

significance of the error made by the arbitrator is apparent on

[page 155] the face of the award, particularly as the arbitrator stated in his reasons that the authorities did not establish the extent of the jurisdiction given to him under s 22(2) of the Act. Consequently, it was submitted that had the arbitrator applied s 22(2) of the Act to the determination of the dispute, he would have been required to determine the meaning and ambit of that provision (notwithstanding the perceived difficulty of the task) and then apply it in determining whether the parties had entered into an agreement for lease. The arbitrator did not proceed on that basis. Croft J said that the answers to the above submissions depended upon the proper interpretation of s 22(2) of the Act, because if, properly construed, it was a provision of narrow application and not applicable to determining such questions or a provision which gave absolute discretion to the arbitrator whether or not to provide to apply its provisions. His Honour emphasised that it was neither open nor possible for a court to substitute its own views as to “considerations of general justice and fairness” with respect to the application of provisions such as s 22(2) of the Act, the court must take the view that a relevant error arises where the s 22(2) provisions are not applied in a manner in conformity with the proper construction, without speculation is that the possible outcome or outcomes of their application. The College submitted that the arbitrator was in error in not applying s 22(2) and in holding that its provisions would have required him to apply the common law principles of contract in determining whether there was an agreement for lease. Croft J held, at [39], that properly construed s 22(2) did not require the arbitrator to determine that issue strictly in accordance with the law but, rather, permitted and required him to have regard to wider considerations. The result would be a more flexible view as to the possible application, or otherwise, of the classes referred to in Masters v Cameron (1954) 91 CLR 353 or the rules with respect to essential terms of leases or agreements for lease. Croft J, at [41], referred to the arbitrator statement that he must apply substantive rules relating to principles of contract law arising in relation to the matter. In regard to the meaning of s 22(2) he relied on the following authorities: Woodbud Pty Ltd v Warea Pty Ltd (1995) 125 FLR 346; Allmore Constructions Pty Ltd v Failli (2004) 20 BCL 65; [2002] VSC 483; Christ Church Grammar

School v Bosnich [2010] VSC 476; Westport Insurance Corporation v Gordian Runoff Limited (2011) 244 CLR 239; 281 ALR 593; [2011] HCA 37. [s 28.50] Role of intermediate appellate courts in interpreting uniform national legislation In Yesodei, Croft J said (at [41]) that regard must be had to the statement of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 150 (Gleeson CJ and Gummow, Callinan, Haydon and Crennan JJ): Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. His Honour continued at [41]: … there was much to be said for applying the approach expressed above more generally with respect to uniform legislation such as the uniform arbitration acts in aid of a uniform and predictable commercial arbitration regime in Australia. This was particularly so having regard to the clear intention of the various state and territory legislatures to achieve this result by the enactment of this uniform legislation in the 1980’s and, more recently, uniform legislation in the form of the Commercial Arbitration Act 2010 (NSW) and the 2011 Act in Victoria. [s 28.55] The authorities on s 22(2) In Allmore Constructions Pty Ltd v Failli (2004) 20 BCL 65; [2002] VSC 483 the arbitration agreement in cl 2(d) required the arbitrator to “hear and decide any matter by reference to considerations of justice and fairness and is not bound by the rules of evidence and procedure”. Harper J (as he then was) held at [69]:

[page 156] That clause requires an arbitrator to avoid legal technicalities if, when applied, they would be inconsistent with considerations of general justice and fairness. It does not require, or necessarily allow, an arbitrator to disregard legal principle. In Yesodei, Croft J said (at [43]) that the general proposition stated in [69] was

equally apposite and applicable to s 22(2) of the Act. In Christ Church Grammar School v Bosnich [2010] VSC 476, Sifris J made reference to s 22(2) at [39]: [39] Section 22(2) of the Commercial Arbitration Act 1984 (Vic) permits parties to agree to an arbitrator or umpire deciding any question by reference to “considerations of general justice or fairness”. If the parties do not agree, the question must be decided according to the law. However, even an agreement for the matter to be determined by reference to considerations of general justice and fairness does not mean an arbitrator is entitled to disregard the law entirely … Croft J was of the view, at [44], that this view was entirely consistent with that in the Allmore Constructions case and that it took matters no further than reaffirming that in certain circumstances the application of “considerations of general justice and fairness” would require application of the law. The arbitrator, the subject of the appeal in Yesodei Hatorah College Inc v Trustees of the Elwood Talmud Torah Congregation [2011] VSC 622 made reference to certain passages in the judgment of Young J in Woodbud Pty v Warea Pty Ltd (1995) 125 FLR 346. On analysis, Croft J held that the passages relied upon by the arbitrator did not capture the extent of his Honour’s views as to the ambit and operation of s 22(2) of the Act. Croft J held that the statements by Young J in Woodbud make it very difficult to sustain the arbitrator’s view that s 22(2) has no operation in relation to the formation of enforceable contracts. Further, it appeared that Young J’s views would support a power under s 22(2) of the Act to “apply principles of rectification” or to “supplement the contract by filling out the contractual regime in areas where the parties have not thought it through” to overcome these difficulties if in all the circumstances the Arbitrator thought this was appropriate. Croft J considered, at [50], that some statements in the dissenting judgment of Heydon J in Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239; 281 ALR 593; [2011] HCA 37 at [84], [90] were not addressing the general operation and ambit s 22(2) of the Act but was, rather, directing particular attention to questions of contractual interpretation. There was no discussion of the possible application of these provisions with respect to contract formation. Importantly, these comments were addressed to the situation of an arbitrator or arbitral tribunal acting as amiable compositeur. They do not address the possible broader content and operation of s 22(2) of the Act. His Honour then considered, at [57]–[58], the interpretation of s 22(2) of the Act from a

legislative perspective with emphasis on the fact that it was a statutory mandate to the arbitrator rather than from the perspective of the court construing similar formulations in arbitration agreements rather than statutes. The limited construction of s 22(2) of the Act favoured by the arbitrator raised several difficulties. First, this construction did not sit harmoniously with ss 14 and 19 of the Act. The construction favoured by the arbitrator did no more than permit him to avoid procedural and evidentiary irregularities but rendered the section virtually of no practical effect. Second, a difficulty arose within the provisions of s 22 itself. Section 22(1) provided that unless otherwise agreed, the arbitrator is to determine any question that arises for determination “according to law”. The language and contextual setting of s 22(1) is vis-a-vis s 22(2) of the Act that the legislature intended subs (2), to have a different effect from subs (1) certainly not virtually the same effect, which is what the arbitrator decided. Croft J concluded at [58]: … that the proper application of s 22(2) of the Act opens the possibility of a “mosaic” of decision-making where an arbitrator properly decides, with reasons, that aspects of the dispute are to be decided “according to law” and that others are to be decided having regard to

[page 157] considerations within the ambit of “general justice and fairness” but which depart from legal rules or principles to the extent that they would not be able to be described as being determined “according to law”. The Congregation (the respondent) submitted that the use of the word “may” in s 22(2) of in conjunction with the word “may” in the Arbitration Rules contained in the arbitration agreement, were supportive of the approach of the arbitrator. In response, Croft J said (at [59]): … the use of the word “may” in [2] of Sch 3 does no more than echo the words of s 22(2) and no more confers any discretion on the arbitrator than does its use in s 22(2) itself. In any event even if the congregation were correct in the position advanced on this point, the arbitrator has, even on this basis, failed in the discharge of his mandate because he has not given reasons,

or reasons of an appropriate standard, for the exercise of any discretion in favour of strict application of the law to critical matters in issue. In other words, the same issues arise with respect to the failure to properly apply s 22(2); particularly the failure to explain the basis of his strict application of the law in this context. [s 28.60] Use of extrinsic materials In Yesodei Hatorah College Inc v Trustees of the Elwood Talmud Torah Congregation [2011] VSC 622 (Yesodei), the extrinsic materials considered included the Second Reading Speech in the Victorian Legislative Assembly on 13 September 1984, following the introduction of the Commercial Arbitration Bill 1984. In his speech the minister (representing the Attorney-General) stated that cl 22(2) is derived from the rules of the United Nations Conference on International Commercial Arbitration, and is specifically included to ensure that our legislation is consistent with those rules. The minister stated that although an English expression had been adopted, the original expressions and their sources were to be found in the marginal note to the subclause. The minister stated “This provision will enable an arbitrator or umpire, where the parties so agree, to decide according to general considerations of equity and good conscience by way of compromise, or on such other basis as may be agreed”. The marginal note to cl 22(2) of the Bill stated: “See UNCITRAL Arbitration Rules Article 33, Paragraph 2”. The marginal note was consistent with the original heading to s 22 which was: “Arbitrator to decide according to law or as amiable compositeur or ex aequo bono”. This heading was changed to the English expression: “Arbitrator to decide according to law or fairness”. (See: [s 28.45].) In other states, for instance, in Western Australia, in s 22(2) the words amiable compositeur or ex aequo bono” were retained. Section 22(2) of the Commercial Arbitration Act 1985 (WA) was expressed in the following terms: (2) If the parties to an arbitration agreement so agree in writing, the arbitrator or umpire may determine any question that arises for determination in the course of proceedings under the agreement as amiable compositeur or ex aequo et bono. [s 28.65] If parties agree arbitrator can decide “any question” as amiable compositeur or ex aequo et bono Croft J said in Yesodei (at [64]) that it was very clear from the language of Art 33(2) of the UNCITRAL Rules that the mandate provided by those provisions to the arbitral tribunal extends to deciding either as amiable compositeur or as ex aequo et bono, if the parties have authorised the tribunal to do so. It was quite clear from the Second Reading

Speech of the minister that the machinery of subs 22(2) operates by enabling the parties to agree to the application of its provisions which, in turn, imports the possibility of the arbitrator deciding “any question” in dispute as amiable compositeur or ex aequo et bono, particularly as the international understanding of these expressions does not indicate that they are necessarily to be treated as synonymous. [s 28.70] Possible meaning of an ex aequo et bono clause Reference was made to the analysis of the possible meanings of an ex aequo et bono clause, and the seven possible

[page 158] interpretations of such a clause in an arbitration agreement as postulated in Mustill and Boyd, Commercial Arbitration, 2nd ed, 1989, 76: 1. The clause empowers the arbitrator to adjust the bargain in the light of changed circumstances. This power may be exercised as regards future obligations, in addition to those which are the subject of dispute. The powers extend to a revision of the express terms of the contract, as well as those which are imposed or implied by law. 2. Once the arbitrator is seized of a dispute as to obligations existing or said to have existed in the past, the clause frees him from any duty to respect the rules of law when deciding upon the merits of the dispute. 3. The clause has the same effect as set out in 2, above, except that the arbitrator is obliged to give effect to rules of public policy. 4. The clause has the same effect as set out in 2 or 3, above, except that the arbitrator cannot depart from the express terms of the contract. 5. The clause empowers (and indeed requires) the arbitrator to apply a system of law, but not a system which is that of any individual state. 6. The clause enables the arbitrator to ignored technicalities and strict constructions. 7. The purpose of the clause is only to ensure that the arbitrator need not conform with ordinary legal procedures when conducting the reference. Mustill and Boyd conclude (at 80): … it is, we think possible to say that the modified version of interpretation 4, suggested in the previous paragraphs, is one that may be regarded as having

some reasonable relation to the presumed intention of the parties. It is not, we believe, inconsistent with any reported decision on the meaning of an equity clause. Croft J noted in Yesodei (at [65]) that the analysis by Mustill and Boyd is from an English law perspective and in circumstances where meaning is sought to be given to an ex aequo et bono provision in an arbitration agreement which, itself must operate in the environment of the English statute law and common law. The issues that arose in this hearing was how s 22(2) operated in circumstances where it carried the statutory mandate provided by s 22(2) of the Act and was not merely a regime derived from the consent of the parties to the arbitration agreement. Croft J stated that s 22(2) is not applicable unless the parties so agree, but once they do agree, the source of this power is statute not the arbitration agreement. In this light, and having regard to the authorities, it would seem that the interpretations 1 to 4 and 6 of those postulated by Mustill and Boyd would be within the ambit of an ex aequo et bono clause under the umbrella of s 22(2), subject to the possibility that on the basis of a reasoned decision to do so the arbitrator may determine that is appropriate to apply strict rules of law. Nevertheless, other more recent commentaries suggest that the meaning of ex aequo et bono is not necessarily as opaque as suggested by Jacobs and also by Mustill and Boyd. (See: Jacobs, Commercial Arbitration Law & Practice, Lawbook Co, 2001 at [21.190], p 5512.) [s 28.75] Recent meanings of ex aequo et bono Recent commentaries include Greenberg, Kee and Weeramantry, International Commercial Arbitration — An Asia-Pacific Perspective, Cambridge University Press, 2001, pp 141–2, [3.165]–[3.169]; L Trakman, Ex Aequo et Bono; De-mystifying an Ancient Concept, (2007) University of New South Wales Faculty of Law Research Series 39 at sections V, VI and VII respectively. Croft J in Yesodei Hatorah College Inc v Trustees of the Elwood Talmud Torah Congregation [2011] VSC 622, at [67], said that the commentators: … and the courts tend to conflate the meaning of an arbitrator’s mandate amiable compositeur and ex aequo et bono. The same appears in discussions of arbitrators applying “equity and good conscience” in Redfern and Hunter on International Arbitration at [3.198]–[3.202]. A distinction is drawn between the terms “amiable compositeur and ex aequo et bono” by Proudet and Besson in Comparative Law of International Arbitration, 2nd ed, Thomson/ Sweet & Maxwell, London, 2007, pp 623 and

[714] and by Born in International Commercial Arbitration,

[page 159] Wolters Kluwer, 2009, (in two volumes). On the basis of the authorities, legislative context and discussion of statutory interpretation and the commentaries in relation to ex aequo et bono and amiable compositeur, Croft J, concluded, at [70]: that the provisions of s 22(2) do not require an arbitrator to determine the subject of the arbitration in accordance with strict legal principles. The arbitrator may have regard to such principles but is permitted and required to depart from them and to have regard to wider considerations in determining issues in dispute “by reference to considerations of general justice and fairness” according to the statutory mandate provided by s 22(2), a mandate which provides him or her with a very broad canvas encompassing the possibilities of deciding matters (any question) ex aequo et bono or amiable compositeur. Croft J stated that his analysis and views on the proper construction of s 22(2) went beyond the observations of Young J in Woodbud Pty Ltd v Warea Pty Ltd (1995) 125 FLR 346. [s 28.80]

Error of arbitrator

In Yesodei Croft J concluded (at [70]):

The primary and clear error made by the arbitrator with respect to s 22(2) of the Act was his determination, without reasons, that s 22(2) had no operation in determining whether an agreement for lease had been reached between the parties and whether the binding or enforceable nature of any such agreement, if entered into, was subject to any subsequent event, such as the entering into of a formal document, applying the approach and categories of Masters v Cameron (1954) 91 CLR 353) and whether, in the particular circumstances, it contained all the essential terms. [s 28.85] Primacy of the contract Subsection (5) emphasises the primacy of the contract in the determination of any dispute between the parties. [s 28.90] Usages of trade In subs (5) the arbitral tribunal must take into consideration, in reaching its decision, the usages of the trade. For instance,

usages in the trade in the building and construction industry can often be decisive in the resolution of a dispute between the contracting parties.

Decision-making by panel of arbitrators 29 (cf Model Law Art 29)

(1) In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal must be made, unless otherwise agreed by the parties, by a majority of all its members. (2) However, questions of procedure may be decided by a presiding arbitrator, if so authorised by the parties or all members of the arbitral tribunal.

ANNOTATIONS [s 29.5] s 29.

Unless otherwise agreed

The parties have autonomy to opt-out of

[s 29.10] Where more than one arbitrator substantive issues to be a decision of a majority of arbitrators Where there is more than one arbitrator any decision must be a decision of a majority of the panel members. The parties can determine the number of arbitrators under s 10 of the Act.

[page 160] [s 29.15] If no majority decision reached A failure to reach a majority decision can arise if an even number of arbitrators is appointed under s 10; or where an even number of arbitrators does not agree on every issue for decision. If a majority decision cannot be reached then a “deadlock” situation arises, with the Act remaining silent as to how this is to be resolved. This potential problem exists with respect to the drafting of Art 29 of the Model Law. During the drafting sessions of the UNCITRAL Working Group II (Arbitration), it was noted by delegation for the United States of America, in the context of debate on a proposal to provide for resolution of the impasse by the presiding arbitrator,

that: [w]here a presiding arbitrator was empowered to decide in the absence of a majority, he was in effect a sole arbitrator. If that was what the parties wished, it would be cheaper and more practicable to appoint a sole arbitrator in the first place. In addition, the requirement of a majority decision made it more likely that all issues would be fully considered as a result of the need to reach agreement. Moreover, the parties would more readily accept the decision, thus reducing the likelihood of subsequent litigation or appeals. (See: A/CN.9/SR.327 at [48]. Nevertheless, the debate did not lend to any change in the drafting of Art 29 in favour of resolution by the presiding arbitrators. Similar issues were raised with respect to Art 33 of the UNCITRAL Arbitration Rules (1976).) Section 29 of the Act takes a different approach to that adopted in s 15 of the repealed Act, which provided that where three or more arbitrators had been appointed, all questions (either substantive or procedural) were to be decided by a majority or by the presiding arbitrator if a “deadlock” was encountered. While one can understand the reluctance to allow for resolution by the presiding arbitrator in the international arena, it might be thought that the same issues do not arise domestically. Nevertheless, the answer lies in the hands of the parties as they can avoid the constitution of a tribunal or even number of arbitrators or provide for resolution of the deadlock. [s 29.20] Avoidance of deadlock by adopting the rules of a nominating body or appointing authority The drafting of the s 29(1) of the Act does not, however, appear to preclude the parties, where there is a deadlock, from authorising the presiding arbitrator to decide alone. The words “unless otherwise agreed by the parties” suggest that parties can avoid the possibility of a deadlock in the decision making by the panel of arbitrators, by adopting the rules of a nominating authority that provide for resolution of deadlock or tie-breaking. For instance, Art 32 of the ACICA Arbitration Rules states: 32. Where there are three arbitrators, any award or other decision of the Arbitral Tribunal shall be made by a majority of the arbitrators. Failing a majority decision on any issue, the opinion of the Chairperson shall prevail. [s 29.25]

Procedural issues can be decided by the presiding arbitrator

Under s 29(2) when questions of procedure arise in the course of arbitration, a decision can be made by the presiding arbitrator if so authorised by the parties. Otherwise the decision is to be a majority decision of the panel of arbitrators. Naturally these provisions may lead to questions of whether an issue is in fact a procedural issue as opposed to a substantive one. In Halligan v Curtin [2013] VSC 124, Forrest J observed that, at [11]: Although the joint judgment in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; 172 ALR 625 has clarified the position in terms of what constitutes the substantive law of the place of the wrong, the distinction between procedural and substantive law outlined in McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1; 104 ALR 257 by Mason CJ still applies (John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 543–4; 172 ALR 625). The High Court said in John Pfeiffer Pty Ltd, at CLR 543: [M]atters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of

[page 161] substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain, “rules which are directed to governing or regulating the mode or conduct of court proceedings” are procedural and all other provisions or rules are to be classified as substantive (Stevens v Head). (citations omitted)

Settlement 30 (cf Model Law Art 30)

(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal must terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.

(2) An award on agreed terms is to be made in accordance with section 31 and must state that it is an award. (3) Such an award has the same status and effect as any other award on the merits of the case.

ANNOTATIONS [s 30.5] Settlement Subsection 30(1) assists settlement and the recording of the terms of settlement as an award. [s 30.10] Settlement “requested by the parties” The settlement must be “requested by the parties”; that is, the terms of settlement are signed by the parties or their authorised representatives. [s 30.15] Not objected to by the tribunal The paramount object of the Act, as set out in s 1AC, is to facilitate the fair and final resolution of commercial disputes. An objection by the tribunal would probably only arise if the proposed terms of settlement were, in the view of the tribunal, illegal, contrary to the public interest, inappropriate for some reason or included third parties. At a drafting session of the Model Law of the UNCITRAL Working Group II, it was debated whether the discretion of the tribunal to object to the consent award should be removed on the basis that if the parties settled their dispute, they should be entitled to obtain a record of the settlement in the form of an award. However, there was objection to a removal of this discretion from the tribunal on the basis of concern that arbitrators ought not to be required to render an award which may be inappropriate, violate laws or might further a conspiracy between the parties: see A/CN.9/SR.328. An interesting circumstance which might arise is where a tribunal is asked to record settlement terms as an award, which, if analysed, would in fact constitute an “error of law”. An example of that would be where the parties to the arbitration agreement are in dispute as to whether the premises subject to a lease is a retail premise for the purposes of the Retail Leases Act 2003 (Vic) (RLA). It may follow that the parties reach an agreement prior to the conclusion of the arbitration that the premises do fall within the RLA. However, the agreed result may not necessarily be the same one which would have been reached had the arbitrator been able to consider the matter and provide his reasons; in other words, from a distinct legal perspective, the agreed result may well be “incorrect”. In that case, the arbitrator may be asked to make an award finding

that the premises are within the jurisdiction of the RLA, which he or she might be reluctant to do given that the

[page 162] award may well be subject to possible challenges on appeal or at the enforcement stage. Indeed, putting aside the possible problem that the arbitration may be touching a subject which is non-arbitrable (ie, any dispute under the RLA can only heard before the Victorian Civil and Administrative Tribunal), the award may not be enforced because it may well breach public policy. Therefore, in certain circumstances, any terms which are agreed upon by the parties may not necessarily find themselves to be an “agreed award”. [s 30.20] On agreed terms All parties to the arbitration must give their consent to the terms before they are agreed terms. The accord is an “accord des parties” — an accord or agreement of all the parties. [s 30.25] In accordance with s 31 Subsection 30(2) states that the terms must be in accordance with s 31. Section 31 is concerned with the form and content of the award. However, it is important to note that under s 31(3) no reasons are needed for an award on agreed terms under s 30. A consent award is, thus, more difficult to challenge or to resist its enforcement. [s 30.30] Must state that it is an award Subsection 30(2) provides that the award on agreed terms must state that it is an award; as only arbitral awards can be recognised and enforced by the courts. This requirement makes the intention clear to all of all parties and the tribunal. These provisions would not, however, have the effect of turning something, which is not in the nature of an arbitral award, into such an award or preclude the courts from considering whether, in substance, something in the nature of arbitral award has been rendered. [s 30.35] Same status and effect as other awards Subsection 30(3) provides that consent awards have the same status and effect as other awards. This is of assistance in the recognition and enforcement of consent awards, if this becomes necessary. An issue that may arise with the recognition and enforcement of a consent award is whether, and, if so, the extent to which it affects a third party or third parties. Any third party affected by a consent award can challenge the award on

the basis that they ought not to be bound by the award.

Form and contents of award 31 (cf Model Law Art 31)

(1) The award must be made in writing and must be signed by the arbitrator or arbitrators. (2) In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the arbitral tribunal suffices, provided that the reason for any omitted signature is stated. (3) The award must state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under section 30. (4) The award must state its date and the place of arbitration as determined in accordance with section 20. (5) The award is taken to have been made at the place stated in the award in accordance with subsection (4). (6) After the award is made, a copy signed by the arbitrators in accordance with subsection (1) must be delivered to each party. [page 163]

ANNOTATIONS [s 31.5] Form and contents of the award The form and contents of the award is more comprehensive than under the s 29 of the repealed Act. Except for the opt-out in s 31(3) in regard to reasons, the requirements in this section are mandatory. The requirements are mandatory given the adoption of the word “must”. Article 31 of the Model Law (as revised in 2006) employs the word “shall” and not “must”. Generally speaking both “shall” and “must” are interpreted as connoting a mandatory provision. In Saraya v Commissioner of Business Franchises (VSC, 18 February 1997, unreported, BC9700371), Beach J said

that, at 12: Lord Keith pointed out [in London and Clydeside Estates Ltd v Aberdeen District Council & Anor (1980) 1 WLR 182] that the word “shall” is normally to be interpreted as connoting a mandatory provision … [T]he legislature has chosen not to use the word “shall” but to use the word “must.” In my opinion when one uses the word “must” one is imposing an obligation upon a person to do something. If you must do something, it is necessary or essential that you do it. Section 32 of the Act makes reference to “final award”. No such reference is contained in s 31. This means an award under s 31 could include any number of categories of awards including final awards; partial final awards; default awards; and consent awards. In Murray & Roberts Australia Pty Ltd v G B Lifestyles Pty Ltd [2013] WASC 345; BC201303334, Martin CJ said (at [39]–[41], [43]): [39] It is trite to observe that the award will include all documents which the arbitrator intended to incorporate into it, and that this intention is assessed objectively—Gold Coast City Council v Canterbury Pipe Lines (Australia) Pty Ltd (1968) 118 CLR 58, 63; 16 LGRA 191; [1968] ALR 97; BC6800270; Hodgkinson v Fernie [1857] EngR 940; (1857) 3 CBNS 189; 140 ER 712; Champsey Bhara & Co v Jivraj Balloo Spinning and Weaving Co Ltd [1923] AC 480; [1923] All ER Rep 235; (1923) 39 TLR 253; NewGeneration Enterprises Pty Ltd v Western Australian Planning Commission at [49] (Pullin JA); Zurich Bay Holdings Pty Ltd v Iluka Midwest Ltd [2009] WASC 237; BC200908104 at [15]. [40] A number of factors will influence whether the documents sought to be relied upon by Murray & Roberts were intended by the arbitrator to have been incorporated into the award. If the arbitrator’s reasons cannot be understood without reading the document, the reasons will be regarded as incorporating the document — NewGeneration Enterprises Pty Ltd v Western Australian Planning Commission at [49] (Pullin JA); Alvaro v Temple [2009] WASC 205; BC200906816 at [37]; Zurich Bay Holdings Pty Ltd v Iluka Midwest Ltd at [16]; Anaconda Operations Pty Ltd v Fluor Australia Pty Ltd [2003] VSC 275; BC200304531 at [49]; RP Robson Constructions v D & M Williams (1989) 6 BCL 219, 222; Ukrainian Association of Western Australia in Perth (Inc) v Squire Constructions Pty Ltd [2004] WASC 4; BC200400093 at [25]. Put another way, if the decision or direction given is in terms which mean that

it is not possible to understand what has been decided or directed without reference to another document, that document should be treated as incorporated into the award — Anaconda Operations Pty Ltd v Fluor Australia Pty Ltd at [45] (Dodds-Streeton J); Gianfriddo v Garra Constructions Pty Ltd [1971] VicRp 34; [1971] VR 289, 290–291 (Smith J). [41] However, a mere recital or narrative statement referring to a document will be insufficient to incorporate the document into the award — Ukrainian Association of Western Australia in Perth (Inc) v Squire Constructions Pty Ltd at [25]; Zurich Bay Holdings Pty Ltd v Iluka Midwest Ltd at [16]; Gianfriddo v Garra Constructions Pty Ltd; City of Canning v Avon Capital Estates (Australia) Ltd at [60]. … [43] The notice of reference to arbitration should be taken to be incorporated into the award. In WJ Alan & Co Ltd v El Nasr Export & Import Co [1971] 1 Lloyd’s Rep 401, Orr J confirmed

[page 164] ‘that as regards an interim award the court is always entitled to look at the relevant documents to see what was submitted to arbitration’ (408). This passage was cited with approval by Dodds-Streeton J in Anaconda Operations Pty Ltd v Fluor Australia Pty Ltd at [46], and Applegarth J in Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd [2011] QSC 306; BC201108127 at [78]. In Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469; BC201410567, Martin CJ had to consider whether the parties’ arbitration agreement form part of the award. His Honour said (at [15]): [15] There is no general rule to the effect that the entirety of the agreement containing the relevant arbitration agreement is to be taken to be incorporated into the award. Whether or not the entirety of the Agreement is taken to be incorporated will depend upon the particular circumstances of the case, and upon the terms of the award. If the reasoning expressed in the award relies to

some extent upon inferences of intention or purpose to be derived from the Agreement as a whole, the entire agreement will generally be taken to be incorporated into the award. In this case, at a number of points in the award, the arbitrator drew conclusions with respect to the commercial purpose of the agreement and the intention to be attributed to the parties from the words they have used in the Agreement construed in the context of the Agreement as a whole. (citations omitted) [s 31.10] Award must be in writing The award must be in writing. There is no oral handing down of an award and then the necessity to convert it to writing—and thus no need for provisions similar to s 29(2) of the Commercial Arbitration Act 1984 (Vic). [s 31.15] Signed by the arbitrator or arbitrators In s 31(2) if there is more than one arbitrator and the award is a majority decision, then the signatures of the majority are sufficient provided the reason for any omitted signature is stated. This subsection is very similar to Art 31(1) of the Model Law (as revised in 2006). (See: D Frampton & Co Ltd v Sylvio Thibeault and Navigation Harvey & Freres Inc (Federal Court of Canada, Trial Division per Denault J, 7 April 1988); [MAL 31; 34, CLOUT abstract 12]; abstract published in English: [1995] Model Arbitration Law Quarterly Reports, Vol 1, Issue 1 at 43; text of court decision published in English: [1995] 1 Model Arbitration Law Quarterly Reports at 47.) [s 31.20] Party autonomy Party autonomy is preserved in s 31(3) allowing the parties to agree to an award without any reasons. [s 31.25] Award on agreed terms under s 30 If there is an award on agreed terms under s 30, then no reasons are required. [s 31.30] Standard of reasons required by arbitrators The standard of reasons required of arbitrators under s 29(1)(c) of the repealed Act was a contentious and difficult issue. Those provisions required that “[u]nless otherwise agreed in writing by the parties to the arbitration agreement, the arbitrator .. shall .. include in the award a statement of reasons for making the award”. A difference of opinion arose between appellate courts in Victoria and New South Wales in regard to the standard of reasons required by arbitrators — with the Queensland courts adopting their own approach. The issue first arose in the Victorian Supreme Court decision BHP Billiton Ltd

v Oil Basins Ltd [2006] VSC 402 where an interim award was rendered against BHP Billiton (BHP) with respect to an interpretation of a royalty agreement in respect of the production of oil. BHP then sought to appeal the award on the basis that the arbitrators failed to provide adequate reasons (thus constituting an error of law) and had committed technical misconduct under ss 38 and 42 of the

[page 165] repealed Act. At first instance, Hargrave J observed, at [14], that “the extent of reasons which are required will always depend upon the circumstances of the case” and this included a number of factors such as: the facts of the arbitration; the procedures adopted in the arbitration; the conduct of the parties to the arbitration; and the qualification and experience of the arbitrators (see [21]). His Honour agreed with BHP and held, at [23], that on the facts of the case, “the arbitrators were under a duty to give reasons of a standard which was equivalent to the reasons to be expected from a judge deciding a commercial case”. His Honour explained this view as follows, at [21]: [I]n a straightforward trade arbitration before a trade expert, a less exacting standard than would be expected of a judge’s reasons should be applied in considering the adequacy of the reasons for the making of an award. On the other hand, in a large-scale commercial arbitration, where the parties engage in the exchange of detailed pleadings and witness statements prior to a formal hearing before a legally qualified arbitrator, a higher standard of reasons is to be expected. This is especially so where the arbitrator is a retired judicial officer. On appeal in Oil Basins Ltd v BHP Billiton Ltd (2007) 18 VR 139; [2007] VSCA 255 (Oil Basins), the Victorian Court of Appeal (Buchanan, Nettle and Dodds-Streeton JJA) agreed with Hargrave J in holding that in certain circumstances the complexity of reasons required could reach that of a judgment of a superior court. The complexity of reasons required was proportional to the complexity of the arbitral proceedings in respect of which the reasons were given — but not the nature of the arbitrator. (See: [59]) (See also: N Rudge and C Mile, “Clarification of an Arbitrator’s Obligations to Give Reasons under the Australian State Commercial Arbitration Acts: The Emerging Requirement of Proportionality” (2010) 76 Arbitration

571.) The question then arose in the NSW Court of Appeal in Gordian Runoff Ltd v Westport Insurance Corp (2010) 267 ALR 74; [2010] NSWCA 57 where the Court of Appeal took a different position from that reached in Victoria and held that there was no requirement for an arbitral award to contain reasoning of a judicial standard, and that an arbitral award should not be burdened with the costs, complexities and technicalities associated with curial decision-making. Allsop P (with whom Spigelman CJ and Macfarlan JA agreed) cited the test in Bremer Handelsgesellschaft mbH v Westzucker Gmbh (No 2) [1981] 2 Lloyd’s Rep 130 at 132-3 per Donaldson LJ that an arbitrator was required to: set out what, on their view of the evidence, did or did not happen and should explain succinctly why, in the light of what happened, they have reached their decision and what that decision is. This is all that is meant by a “reasoned award” [in s 1(6) of the 1979 UK Act]. The Court of Appeal noted that the differences between arbitration and litigation ought to be borne in mind at all times, and concluded, at [224]: … it is wrong to equate the obligations of judges and arbitrators to give reasons as part of the ascription of meaning to s 29(1)(c) … This is because of my view that to so equate the responsibilities of arbitrators and judges is not in accordance with the context of either s 29(1)(c) or the Model Law (being relevantly its source and inspiration) or with international arbitration practice as reflected by the cases and writing to which I have referred. In Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2010] QSC 94, the Supreme Court of Queensland, acknowledging the differing approaches adopted by the Courts of Appeal of New South Wales and Victoria, followed the decision of the Queensland Court of Appeal in Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462 where McPherson and Davies JJA held, at 485, that the adequacy of reasons required examination of factors “including the functions, talents and attributes of the tribunal members or the individual in whom the duty of deciding questions of that kind has been vested”. Croft J in the Victorian Supreme Court decision Thoroughvision Pty Ltd v Sky Channel Pty Ltd [2010] VSC 139, though bound by the decision in Oil Basins, sought to reconcile the authorities in saying that, at [54], “a principle of proportionality applies with respect to the nature and extent of reasons which an arbitrator is obliged to provide in arbitration award”.

[page 166] Given the divergence in views, the issue was ultimately resolved or, at the very least, clarified by the High Court in Westport Insurance Corp v Gordian Runoff Ltd (2011) 244 CLR 239; 281 ALR 593 (Gordian Runoff). The joint judgment of French CJ, Gummow, Crennan and Bell JJ (the joint judgment) observed, at [53], that the requirement in Oil Basins that arbitral awards contain judicial standard of reasoning “placed an unfortunate gloss upon the terms of s 29(1)(c)”. In a separate judgment, Kiefel J agreed with the joint judgment on this point and observed that the uniform legislation did not contain anything to suggest that arbitral awards should display reasons of a judicial standard, at [169]. Both the joint judgment, at [53]–[54], and Kiefel J’s judgment, at [169]– [170], endorsed Donaldson LJ’s formulation of the standard of reasons required in arbitral awards in Bremer Handelsgesellschaft mbH v Westzucker GmbH (No 2) [1981] Lloyd’s Rep 130 at 132–3 where it was held that: All that is necessary is that the arbitrators should set out what, on their view of the evidence, did or did not happen and should explain succinctly why, in the light of what happened, they have reached their decision and what that decision is. This is all that is meant by a “reasoned award”. The law as set out above by the majority in Gordian Runoff and by Kiefel J in her separate reasons on the standard of the reasons required by arbitrators, was applied by Allanson J in Gebauer Nominees Pty Ltd v Cole [2012] WASC 10. His Honour found that consistent with the decision in Gordian Runoff were earlier decisions in which: [18] … It had previously been held that it is the duty of the arbitrator to consider and deal with all matters the subject of the reference; his reasoning must address the central contentions advanced by the parties and deal with ever “submission worthy of serious consideration”: Alvaro v Temple [2009] WASC 205 at [46]; Villani v Delstrat Pty Ltd [2001] WASC 112 at [40]; Peter Schwartz (Overseas) Pty Ltd v Morton (2004) 20 BCL 133; [2003] VSC 144 at [34]. Failure to do so is an error of law. For further discussions of these series of cases see Benjamin Hayward and William KQ Ho, “Balancing the Scales: The Standard of Reasons Required in Commercial Arbitration and Litigation in Australia” (2012) 78 Arbitration 314. In the Yesodei case (see [s 28.40]) Croft J also considered in an application to

set aside the award the failure of arbitrator, to apply s 22(2) of the repealed Act. His Honour held that it was clear from the authorities, particularly Hewitt v Mckensey [2003] NSWSC 1186 (where it was found that an arbitrator in determining a matter under s 22(2) without the agreement of the parties, misconducted himself in terms of s 42), that the arbitrator’s failure to apply the provisions of s 22(2), properly construed, was a misconduct of the arbitration proceedings for the purpose of s 42 “which has or may have unjustly prejudiced a party”: see Hewitt v McKensey [2003] NSWSC 1186 at [63] referring to Melbourne Harbour Trust Commissioners v Hancock (1927) 39 CLR 570 at 588; [1927] ALR 245 (per Isaacs J) (See [s 28.40]). A further aspect of the arbitrator’s misconduct for the purposes of s 42 was the conclusion that s 22(2) was not applicable. This decision was reached without the provision of reasons as required by s 29(1) of the repealed Act, the parties not having agreed to dispense with reasons. See also [s 33.20] and following paragraphs. It is currently unclear as to whether the High Court’s findings in Gordian Runoff, above, will have continued application to the Act. Although they may worded differently, both s 31(3) of the Act and s 29(1)(c) of the repealed Act are, on a textual level, similar in that they impose the same obligations on arbitrators to provide reasoned awards. Hence, given the parallels between the old and new provisions, there is no reason to think that the approach adopted in Gordian Runoff would not be followed in the interpretation of s 31(3) of the Act and if regard were had only to those provisions. However, as the commentators Hayward and Ho observed in their article, “Balancing the Scales: The Standard of Reasons Required in Commercial Arbitration and Litigation in Australia” (2012) 78 Arbitration 314, it is important to note that Gordian Runoff was considered in the context of the previous s 38

[page 167] (allowing for a challenge of an award on the basis of an error of law). The current Act does contain merits appeal provisions in s 34A, but this only has operation if the parties choose to “opt-in”. Without s 34A, the only other recourse to challenging an award stems from the New York Convention-based provisions set out in s 34 of the Act. Thus Hayward and Ho conclude that, “[a]s the High Court in Gordian Runoff characterised a failure to give adequate reasons as an error of law, it becomes apparent that whilst the duty to give

adequate reasons continues to apply under the new Acts, unless the parties opt into the new s 34A there will be no practical consequence should arbitrators fail to do so”. [s 31.35] Reference to uniformity and international origin in interpretation Section 2A of the Act states that reference is to be made to uniformity between this Act and the IAA and international jurisprudence in interpreting this Act: see s 2A(1) and (3). [s 31.40] Interpretation of section the subject of further decision The correct interpretation of the reasons requirement including the resolution of the different interpretations by the Victorian and New South Wales Courts of Appeal awaits further decision by the High Court. [s 31.45] Award must state date and place of arbitration Under s 31(4) the award must state the date and place of arbitration as determined in accordance with s 20. [s 31.50] Award made at the place stated Under s 31(5) the award is taken as having been made at the place stated: see s 31(4). [s 31.55] Signed copy must be delivered to each party Under s 31(6) there is a requirement that a signed copy of the award in accordance with s 31(1) must be delivered to each party.

Termination of proceedings 32 (cf Model Law Art 32)

(1) The arbitral proceedings are terminated by the final award or by an order of the arbitral tribunal in accordance with subsection (2). (2) The arbitral tribunal is to issue an order for the termination of the arbitral proceedings when— (a) the claimant withdraws his or her claim, unless the respondent objects and the arbitral tribunal recognises a legitimate interest on the respondent’s part in obtaining a final settlement of the dispute; or (b) the parties agree on the termination of the proceedings; or (c) the arbitral tribunal finds that the continuation of the proceedings has

for any other reason become unnecessary or impossible; or (d) the arbitral tribunal makes an award under section 25(2)(a) dismissing the claim. (3) The mandate of the arbitral tribunal terminates with the termination of the arbitral proceedings, subject to sections 33 and 34(4).

ANNOTATIONS [s 32.5] Termination of proceedings Section 32 sets out the events that mark the termination of the arbitral proceedings. Subsection 32(1) provides that the arbitral proceedings are terminated by the final award of the tribunal in accordance with s 31(2). Final awards should be distinguished from “interim”,

[page 168] “partial”, or “partial final” awards. The use of the word “final” indicates that the final award is a determination of all the issues before the arbitrator including costs. A “partial” award decides one or more issues but there are one or more issues remaining to be decided. An “interim” or “provisional” award indicates an award that is not the final award. See: “International Commercial Arbitration — An Asia-Pacific Perspective”, S Greenberg, C Kee, J Romesh Weeramantry, Cambridge University Press, 2011 at 395–9. The tribunal may issue an order for the termination of the arbitral proceedings under the circumstances specified in ss 32(2)(a)–32(2)(d). Subject to ss 33 and 34(4), the mandate of the tribunal terminates upon the termination of the arbitral proceedings. [s 32.10] Withdrawal of a claim Under s 32(2)(a) if a claimant withdraws its claim and the respondent does not object the tribunal may order termination. The order of the tribunal is not automatic. Where the respondent objects to the withdrawal of the claim, the tribunal must exercise its discretion on whether there is a legitimate interest on the part of the respondent in obtaining final settlement. The exercise of the discretion is a balancing of interests test that requires consideration of the circumstances of the case. For example, where the

respondent is looking to sell its business though the claimant’s claim is hanging like the Sword of Damocles over the deal — and with the chance of the claimant reissuing the same claim at a future date — then that may suffice in convincing a tribunal to determine the matter as final. [s 32.15] Parties agree on termination Under s 32(2)(b) if the parties agree on termination the tribunal’s duty is to order termination. If the parties agree on termination there is no “dispute” between them and no necessity for arbitration. This subsection preserves party autonomy. This provision operates in conjunction with s 30 of the Act. [s 32.20] The tribunal finds that continuation of the proceedings has become unnecessary or impossible Under s 32(2)(c) the tribunal may order the continuation of the proceedings where they have become “unnecessary or impossible”. The two terms were not discussed during the drafting of the 1985 Model Law. Note though that the concepts are the same as Art 34(2) of the UNCITRAL Arbitration Rules. Impossible means legally impossible. This could occur by reason of law, such as insolvency or as a result of a finding that a party lacked standing. “Unnecessary” involves the tribunal exercising discretion after considering the circumstances of the parties. [s 32.25] Tribunal dismissing the claim Under s 32(2)(d) the tribunal can make an award terminating the claim when it makes an order under s 25(2)(a) dismissing the claim for “inordinate or inexcusable delay in pursuing the claim”. [s 32.30] The tribunal’s mandate terminates with the termination of the arbitral proceedings, subject to ss 33 and 34(4) Under s 32(3) if the tribunal makes an order under s 32 then its mandate terminates subject to ss 33 and 34(4). Under s 33, if within 30 days of receiving the award or such other time as agreed between the parties: (a) With notice to the other party requests the tribunal to correct in its award errors in computation, any clerical or typographical errors or any errors of a similar nature; and (b) If agreed between the parties, a party with notice to the other party may request the tribunal to give an interpretation of a specific point or part of an award. Under s 34(4) the court, when asked to set aside an award may, where appropriate and at the request of a party, suspend the setting aside of the

proceedings to give the tribunal an opportunity to resume proceedings or to take other action to eliminate the grounds for the setting aside.

[page 169] [s 32.35] If termination under s 32(a)–(c) issues can be re-litigated Termination under s 32(a)–(c) does not result in a res judicata estoppel as there is no final decision that disposes once and for all of those issues. (See: awards under ss 32(1) and 32(2)(d).)

Correction and interpretation of award; additional award 33 (cf Model Law Art 33)

(1) Within 30 days of receipt of the award, unless another period of time has been agreed on by the parties— (a) a party, with notice to the other party, may request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical errors or any errors of similar nature; and (b) if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award. (2) If the arbitral tribunal considers a request under subsection (1) to be justified, it must make the correction or give the interpretation within 30 days of receipt of the request. (3) The interpretation forms part of the award. (4) The arbitral tribunal may correct any error of the type referred to in subsection (1)(a) on its own initiative within 30 days of the date of the award. (5) Unless otherwise agreed by the parties, a party, with notice to the other party, may request, within 30 days of receipt of the award, the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award.

(6) If the arbitral tribunal considers the request to be justified, it must make the additional award within 60 days. (7) The arbitral tribunal may extend, if necessary, the period of time within which it may make a correction, interpretation or an additional award under subsection (2) or (5). (8) Section 31 applies to a correction or interpretation of the award or to an additional award.

ANNOTATIONS [s 33.5] Correction and interpretation of award; additional award Section 33 empowers the tribunal to correct its award, if necessary. It is a mandatory power which cannot be opted out of by the parties and can be exercised by the tribunal, either on the request of one of the parties or by the arbitral tribunal upon its own initiative: ss 33(1)(a) and 33(4). The tribunal has power under s 33(1)(b), if both parties agree on a request for interpretation of a specific point or part of the award. Under s 33(3) this interpretation is to form part of the award. [s 33.10] “Any errors in computation, any clerical or typographical errors or any errors of similar nature” In ABB Service Pty Ltd v Pyrmont Light Rail Co Ltd (2010) 77 NSWLR 321; [2010] NSWSC 831, Ward J considered, at [113], that the Second Reading Speech in the Legislative Council for the Commercial Arbitration Bill 2010 (NSW) (12 May 2010) did not disclose any specific indication as to the policy behind or the reason for (let alone any mention of) the changes in what is to become s 33, though there are general comments as to the overriding

[page 170] purpose of the enactment of the 2010 Bill by reference to the delivery of consistency with the Commonwealth’s international arbitration law and the legitimacy and familiarity of internationally accepted practice. The Explanatory Statement for the Commercial Arbitration Act 2010 (NSW) Act simply notes that:

Clause 33 enables the correction or interpretation of a provision of the award, or the making of an additional award. It makes it clear that any interpretation of the tribunal forms part of the award. Ward J looked to authorities that have considered the expression in other contexts, and noted that in New Zealand Employers Federation Inc v National Union of Public Employees [2002] 2 NZLR 54, Richardson P (with whom Tipping and McGrath JJ agreed), contrasted similar words (“defect in form”) with the situation where there was an act that went beyond power (saying that the latter was more than “a mere defect of form or technicality irregularity” but a matter of “prime substance”, at [50]), in the context of considering an application for review in relation to a statutory power of decision under the Judicature Amendment Act 1972 (NZ). In the dissenting judgment of Keith J, an error on the face of a certificate of registration, which was capable of simple rectification by changing the relevant date on the certificate, which could be contrasted with a matter of substance was held to be the basis of a defect in form or technical irregularity. In that case, however, the relevant legislation coupled the words “defect in form” with “technical irregularity” which presumably set the context in which a contrast between form and substance was indicated. It is difficult to compare to s 30 of the previous uniform legislation given that the earlier provision was a little broader in allowing for correction of a “material mistake in the description of any person, thing or matter referred to in the award”. For an interpretation of s 30 of the repealed Act, see Woodbud Pty Ltd v Warea Pty Ltd (1995) 125 FLR 346. [s 33.15] Interpretation of an award Under s 33(1)(b), the parties can agree to make a request to the tribunal to give an interpretation of “a specific point or part of the award”. The subsequent interpretation then forms part of the award, and as such it must contain, among other things, adequate reasons: s 33(3). [s 33.20] Additional award The tribunal is also empowered to make an additional award if requested by one of the parties or both parties. It is unclear as to what could be dealt with in an additional award, but the provision is there to ensure that any issues which has not been covered — but which are mandated by the arbitration agreement—are ultimately resolved to enable one or both of the parties to make a request seeking to ensure the tribunal discharges its duties. [s 33.25]

Tribunal must be justified

In order to provide the correction or

interpretation of an award or an additional award, the arbitral tribunal must be “justified”. For discussion of the word “justified” in various contexts, see Ah Toy v Registrar of Companies (NT) (1986) 10 FCR 356; 72 ALR 107; and KytePowell v William Heinemann Ltd [1960] VR 425].

Specific performance 33A Unless otherwise agreed by the parties, the arbitrator has the power to make an award ordering specific performance of any contract if the Court would have power to order specific performance of that contract. Note There is no equivalent to this section in the Model Law. [page 171]

ANNOTATIONS [s 33A.5] Specific performance Under s 33A the tribunal has power to make orders for specific performance. The provision is substantially identical to s 24 of the Commercial Arbitration Act 1984 (Vic). The words “unless otherwise agreed by the parties” indicates that the possibility of a remedy by way of specific performance of any contract is a consideration when drafting an arbitral agreement. [s 33A.10] Specific performance a discretionary remedy The granting of an order for specific performance is a discretionary equitable remedy usually granted by the Supreme Court of a state or territory. (See: R Meagher, D Heydon and M Leeming, Equity Doctrine and Remedies, 4th ed, LexisNexis Butterworths, 2002, at [20-005] et seq; and P Young, C Croft, and M Smith, On Equity, Thomson Reuters, 2009, at [16.850] et seq.) [s 33A.15] “Any contract” The words “any contract” in s 33B indicate the breadth of the tribunal’s powers that are the same as the Supreme Courts. The tribunal must make an order within the scope of the arbitration agreement, and cannot make an order that binds a third party not privy to the contract. [s 33A.20] Other remedial powers In the absence of a provision

enumerating the remedies available to the tribunal, whether the tribunal can grant other remedies depends on the common law. In Government Insurance Office (NSW) v Atkinson-Leighton Joint Venture (1981) 146 CLR 206, Mason J stated, at 246: The real question, as it seems to me, is whether there is to be implied in the parties’ submission to arbitration a term that the arbitrator is to have authority to give the claimant such relief as would be available to him in a court of law having jurisdiction with respect to the subject matter. A similar comment was made by French J (as his Honour then was) in Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1993) 43 FCR 439; 116 ALR 163 at 172: When the language of the arbitration clause in question is sufficiently elastic, then the more liberal approach of the courts … can have some purchase. A wide construction of such clauses can be supported on the basis … that it is unlikely to have been the intention of the parties to artificially divide their disputes into contractual matters which could be dealt with by an arbitrator and non-contractual matters which would fall to be dealt with in the courts. When, as here, the parties have agreed upon a restricted form of words which in their terms, and as construed in the courts, limit the reference to matters arising ex contractu, there is little room for movement. I am satisfied that neither the trade practices claim, nor the claims for breach of warranty and negligent misstatement can be said to arise out of the agreement. They all arise out of matters which are antecedent to the contract even though they may involve questions which also go to its performance. No authority has been cited to me which would support the wide construction of the clause contended for by Tomlinsons and certainly the natural meaning of the words does not support their extension to disputes arising out of matters antecedent to the agreement. I come to this conclusion with some regret because I have no doubt, having regard to the various provisions of the agreement which have been set out, that much of the evidence in this case would go to the actual performance of the machines and would be evidence of the kind that one would expect to hear in an action for breach of contract. It may be that the resort to the Trade Practices Act, negligent misstatement and breach of collateral warrant is made necessary because of the limiting provisions of the agreement. It is of course possible that the parties may consent to have their dispute referred to arbitration. However, there is nothing in the language of the agreement which would justify an order for the stay of these proceedings.

[page 172] In that case the majority held that the arbitrator had power to award interest. In Mir Brothers Developments Pty Ltd v Atlantic Constructions Pty Ltd (1984) 1 BCL 80, the NSW Court of Appeal held that Mason J’s statement in Government Insurance Office (NSW) v Atkinson-Leighton Joint Venture (1981) 146 CLR 206 meant an arbitrator to award relief under Pt V of the Trade Practices Act 1974 (Cth). The same reasoning would extend to an arbitrator awarding damages, rescission and rectification. The tribunal does not have the power to compel compliance with the award compared to a court in regard to an order: Auburn Council v Austin Australia Pty Ltd (2004) 22 ACLC 766; (2005) 21 BCL 142; [2004] NSWSC 141 at [23] per Bergin J. The tribunal relies on the leave of the court to enforce its awards.

Costs 33B (1) Unless otherwise agreed by the parties, the costs of an arbitration (including the fees and expenses of the arbitrator or arbitrators) are to be in the discretion of the arbitral tribunal. (2) Unless otherwise agreed by the parties, the arbitral tribunal may direct that the costs of an arbitration, or of any part of the arbitral proceedings, are to be limited to a specified amount. (3) A direction under subsection (2) may be varied at any stage, but this must be done sufficiently in advance of the incurring of costs to which it relates, or the taking of any steps in the proceedings which may be affected by it, for the limit to be taken into account. (4) The arbitral tribunal may in making an award— (a) direct to whom, by whom, and in what manner, the whole or any part of the costs that it awards are to be paid; and (b) tax or settle the amount of costs to be paid or any part of those costs; and (c) award costs to be taxed or settled as between party and party or as between legal practitioner and client. (5) Any costs of an arbitration (other than the fees or expenses of an arbitrator) that are directed to be paid by an award are, to the extent that they

have not been taxed or settled by the arbitral tribunal, to be assessed in the Court having jurisdiction under section 34 to hear applications setting aside the award. (6) If no provision is made by an award with respect to the costs of the arbitration, a party may, within 14 days after receiving the award, apply to the arbitral tribunal for directions as to the payment of those costs. (7) The arbitral tribunal must, after hearing any party who wishes to be heard, amend the award by adding to it such directions as the arbitral tribunal thinks proper with respect to the payment of the costs of the arbitration. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 33B.5] Equivalent provision under the repealed Act Section 33B is modeled from s 34 of the repealed Act, though it contains quite a number of changes from the previous provision. [s 33B.10] Party autonomy preserved Under s 33B(1) and (2) party autonomy is preserved by allowing parties to “opt-out”. This means that the parties can make any agreement between themselves with respect to costs. Compare this with s 34(3) of the Commercial Arbitration

[page 173] Act 1984 (Vic) which made any such costs agreement void — though it can be severed from the main arbitration agreement: see Davids Distribution (Vic) Pty Ltd v Dance (No 2) [1999] VSC 468. [s 33B.15] Costs to be determined by tribunal The tribunal has full power to exercise a broad discretion as to which party or parties are to pay the costs or the proportion of the costs. The tribunal can take into account various factors, including, for example, moneys paid into court, offers of compromise and the failure of a party to comply with its general duties: see s 34(5), (6) and (7) of the Commercial Arbitration Act 1984 (Vic). The phrase “costs of an arbitration” is neither defined nor given context by the provisions of the Act. Nevertheless, some guidance is provided by similar provisions. However, these are usually contained in the various institutional

arbitration rules, including the IAMA Rules (r 2), ACICA Rules (Art 39), and UNCITRAL Rules (Art 40). For example, Art 40(2) of the UNCITRAL Rules provides: 2. The term “costs” includes only: (a) The fees of the arbitral tribunal to be stated separately as to each arbitrator and to be fixed by the tribunal itself in accordance with Art 41; (b) The reasonable travel and other expenses incurred by the arbitrators; (c) The reasonable costs of expert advice and of other assistance required by the arbitral tribunal; (d) The reasonable travel and other expenses of witnesses to the extent such expenses are approved by the arbitral tribunal; (e) The legal and other costs incurred by the parties in relation to the arbitration to the extent that the arbitral tribunal determines that the amount of such costs is reasonable; (f) Any fees and expenses of the appointing authority as well as the fees and expenses of the Secretary-General of the PCA. For further discussions on the operation of Art 40(2) of the UNCITRAL Rules, see C Croft, C Kee and J Waincymer, A Guide to the UNCITRAL Rules, Cambridge University Press, Melbourne 2013. The arbitral rules also usually provide for the mechanics for calculating arbitrators’ fees: see for example, Art 40 of the ACICA Rules and Art 41 of the UNCITRAL Rules. The parties are, however, at liberty to reach an agreement as to the rate of remuneration for the arbitrator or arbitrators. Generally speaking, a party is liable to pay the portion of an arbitrator’s fees in proportion to the role it played in appointing the arbitrator. In other words, a party appointing an arbitrator is liable for the arbitrator’s fees. Where the arbitrator is jointly and severally appointed then the arbitrator’s fees are appropriately apportioned: see Schick v Mijoc (1993) 115 FLR 43 at 48 (Higgins J) following Swift v South Melbourne Permanent Society and Deposit Institute (1896) 2 ALR 156. Other costs which can be ordered within the scope of an arbitrator’s power include: commitment fees; and incidental costs: see Minister for Home and Territories v Teesdale-Smith (1924) 35 CLR 120 at 129–30; 31 ALR 74 per Isaacs ACJ and Starke J, and cited in Ballantyne & Sullivan v Electricity Trust of South Australia (1994) 62 SASR 133.

Under the various rules, the tribunal also has power to request payment of a deposit to “secure” various costs, including those of the tribunal and the legal costs of the successful party: see Art 41 of the ACICA Rules and Art 42 of the UNCITRAL Rules. The power under these articles is akin to a “security for costs” order generally made by the courts where there is a risk that one of the parties to the arbitration (or, in the case of the courts, to litigation) may be impecunious at arbitration’s end: see also, r 12 of the IAMA Rules. See discussions of ss 17(2) and 17J above. The tribunal cannot, as previously permitted by s 35 of the repealed Act, withhold delivery of an award on the basis of a failure to pay its fees. There is no such power permitted under the Uniform CAAs. However, see r 19.5 of the IAMA Rules, which provides that “the Arbitrator may

[page 174] withhold the award until the outstanding the balance has been paid as directed by the Arbitrator”. See also Art 42 of the ACICA Rules and Art 43 of the UNCITRAL Rules, which provide that the tribunal may order the suspension or termination of the arbitral proceedings if the payment required is not made. [s 33B.20] Tribunal has power to limit costs Under s 33B(2) the tribunal has power to limit costs to a specified amount. Any such limitation must be in accordance with s 33B(3). The provision applies unless the parties agree to optout. Any tribunal exercise its powers under this subsection needs to do so having regard to the complexity of the issues involved. [s 33B.25] Prior notice of any variation on the limitation of costs must be given Under s 33B(3) prior notice must be given of any variation of the limit on costs so that the parties and their legal advisers will be in a better position to manage the costs of the arbitration. Prior notice must be given so that the parties are aware of the varied limit before incurring costs to which the limit relates or the taking of a step in the proceedings that may be affected by the varied limit on costs. [s 33B.30] Powers of the tribunal in regard to costs Subsection 33B(4) sets out in paras (a)–(c) the powers of the tribunal in when making an award in regard to costs.

[s 33B.35] A direction as to whom and in what manner and what proportion the costs are to be paid Under s 33B(4)(a) the tribunal in making an award can direct, by whom, and in what manner, the whole or any part of the costs that it awards are to be paid. [s 33B.40] Direction limited by words “that it awards” The direction under s 33B(4)(a) is limited to the costs that the tribunal awards. The reference to “whole or any part of the costs” suggests that costs can be apportioned when it is appropriate. Various arbitral rules provide that an arbitral tribunal can apportion the costs if, taking into account the circumstances of the case, it is reasonable to do so: see Art 41 of the ACICA Rules and Art 42 of the UNCITRAL Rules. [s 33B.45] “Manner” can mean other than the court scale of costs In Fletcher Constructions Australia Ltd v Newman (as Trustee for Littlejohn) [2002] WASC 162, Parker J said, at [39]: It appears to me, however, to be entirely consistent with this legislative scheme that the arbitrator may give specific directions in the award as to the manner by which a taxation of costs which he orders is to proceed, which directions may go so far as to direct taxation on basis other than the scale of costs which would normally be applicable under the Rules of Court, eg, in an appropriate case an arbitrator might direct taxation on the basis of the Local Court scale, or give directions specifically varying the application of the ordinary scale as in Minister for Home Territories v Smith (1924) 35 CLR 120. In my view, the statutory scheme of the Commercial Arbitration Act in respect of the awarding of costs of an arbitration reflects the general tenor of those decided authorities. [s 33B.50] Any party can seek directions on costs Any party may apply under s 33B(4) for directions as to which party is to pay the costs or the proportion of the costs to be paid by particular parties. [s 33B.55] Subsection 33B(4)(a) — Tax or settle the amount of costs Section 18(1) of the Arbitration Act 1950 (UK) gave the arbitrator or umpire discretion to “direct to and by whom and in what manner those costs or any part thereof shall be paid, and may tax or settle the amount of costs to be so paid or any part thereof, and may award costs to be paid as between solicitor and client”. In Government of Ceylon v Chandris [1963] 2 QB 327, Megaw J, when applying s 18(1), said, at 338:

[page 175] Both “tax” and “settle” involves the application by the umpire of his own independent mind and judgment to the fees demanded and the work done in order to be satisfied that the fees are fair and reasonable, bearing in mind the interests of the party who will have to pay them, as well as the legitimate interests of the arbitrators. It is, of course, open to the umpire, if he does not wish to tax or settle the fees, because he finds it embarrassing or because he feels that he has not sufficient information, not to tax or settle them under s 18(1), but leave them to be dealt with outside the costs of the award, by way of taxation or otherwise. The word “tax” has a different and more restrictive meaning in legal terms where it refers to a taxation of costs. This is the process provided for in the rules of the court for the assessment of the amount of legal costs payable. (See: Australian Legal Dictionary Butterworths, 1997 and LexisNexis Concise Australian Legal Dictionary 4th ed, 2011.) It has been stated that “[i]n legal proceedings the word ‘tax’ has been defined to mean dealing with each item in a bill by allowance or disallowance, and the word ‘settle’ to mean ascertaining the amount due; but in arbitrations the words have a less restrictive interpretation”. (See: R Quick and D Garnsworthy, Quick on Costs, Thomson Reuters, Looseleaf Service, at [10,1800]; and G Dal Pont, Law of Costs, 3rd ed, LexisNexis Butterworths, 2013.) In regard to costs, see also ss 33B(5) and 33C below. Costs issues are one of the most difficult areas for arbitrators. If the tribunal cannot encourage the parties to reach an agreement on the costs issues then the tribunal should do its best to fix costs and give reasons for its conclusions. In New South Wales v UXC Ltd [2011] NSWSC 530 an application was made on behalf of the plaintiff for costs on an indemnity basis. Ball J stated that according to the principles from Calderbank v Calderbank [1976] Fan 93 the court may, in the exercise of its discretion, make a costs order in favour of a party who has made an offer of compromise that is more favourable than the order the party would normally obtain, if that party can establish that the offer represented a genuine compromise of the dispute and that it was unreasonable for the offeree to have rejected it: see also Commonwealth v Gretton [2008] NSWCA 117 at [38] per Beazley JA; Jones v Bradley (No 2) [2003] NSWCA 258 at [8] per Meagher, Beazley and Santow JJA. See also Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005]

VSCA 298; Stipanov v Mier [2006] VSC 424; and Foster v Galea (No 2) [2008] VSC 331. Ball J held that the plaintiff’s offer did not represent a genuine offer of compromise. The only element of compromise it involved was foregoing a small amount of interest and its own legal costs. In some cases, having regard to the strength of the plaintiff’s case, an offer to forego interest and legal costs may be a genuine offer of compromise: see Manly Council v Byrne (No 2) [2004] NSWCA 227. In the case before him, Ball J held that the offer of compromise was not a genuine offer as it was open to the defendant to argue there was an error in the drafting of the disputed clause and that the plaintiff’s case was not so strong that the offer made represented a genuine offer of compromise. The plaintiff succeeded in its claim and the general principle applied was that costs should follow the event. In some cases, the court will depart from that general principle where the case involves distinct issues and a party is only successful in relation to some of those issues: see Rosniak v Government Insurance Office (1997) 41 NSWLR 608; 26 MVR 204. In the case before him there was only one issue which concerned the construction of the dispute resolution clause. The plaintiff succeeded on that issue and consequently should have its costs of doing so. Ball J also rejected a claim for indemnity costs in regard to a cross-claim that was abandoned during the hearing without explanation. The relevant principle is that the court will award costs on an indemnity basis where a party has acted unreasonably in bringing a claim. This occurs where a party has brought a claim with no prospects of success. (See: Rosniak v Government Insurance Office (1997) 41 NSWLR 608; 26 MVR 204: Fountain Selected Measts (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401.) Ball J did not accept that the cross-claim for rectification had no prospects of success. (See: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248.) [page 176] The result was that the defendant should pay the plaintiff’s costs of the proceedings, including the costs of the cross-summons, on the ordinary basis. [s 33B.60] Subsection 33B(4)(c) — award costs to be taxed or settled Subsection 33B(4)(c) gives the tribunal discretion to fix the basis on which costs

are to be taxed. The subsection sets out the two common basis of taxation of costs being costs as between party and party (the usual basis) or the higher scale between legal practitioner and client (solicitor and client basis). The solicitor client basis is sometimes referred to as an “indemnity basis”; though there may be issues as to whether “indemnity” costs are to be awarded by reference to the “scale” or the “retainer”: see ACN 074 971 109 (as trustee for the Argot Unit Trust) and Pegela Pty Ltd v National Mutual Life Association of Australasia Ltd (ACN 004 020 437) [2013] VSC 137. However, note that the concepts of party and party or lawyer and party costs are no longer contained in Pt 3 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The costs in the proceeding are now taxed on either a standard basis; an indemnity basis; or another basis as the court directs. There is no requirement as to the manner in which a tribunal should exercise its discretion with request to costs. Subsection 33B(4)(c) provides that the tribunal may “award costs to be taxed or settled as between party and party or as between legal practitioner and client”. Although not expressed in the Act, this is consistent with application of the common law principle that “costs follow the event” in arbitral proceedings. This accords with the position taken in the authorities: see, for example, Berbett Pty Ltd v Hansa [1976] VR 385. For a discussion of the relevant common law principles and when they can be departed from, see G Dal Pont, Law of Costs, 3rd ed, LexisNexis Butterworths, Sydney 2013 and see also RI Johnstone Pty Ltd v City of Chelsea (VSC, Young CJ, 19 July 1979, unreported). However, the application of this general principle should not be seen as fettering the discretion of the arbitrator to award costs, though departure from its application would generally call for reasoned explanation: see Davids Distribution (Vic) Pty Ltd v Dance (No 2) [1999] VSC 468 at [21], [28] per McDonald J. In Colgate-Palmolive Company Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248, Sheppard J after considering the authorities said, at FCR 233: 4 In consequence of the settled practice which exists, the court ought not usually make an order for costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course . . . namely, that there is some special or unusual feature in the case to justify the court in departing from the usual practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said, at 8, in

Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (FCA, French J, 3 May 1991, unreported): the “the categories in which the discretion may be exercised are not closed”. . . 5 Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making irrelevant allegations of fraud . . . evidence of particular misconduct that causes loss of time to the court and to the other parties; the fact that the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law . . . the making of allegations which ought never had been made or the undue prolongation of a case by groundless contentions . . .; an imprudent refusal of an offer of compromise . . . Yet others to arise in the future will have different features about them which may justify an order for costs on an indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis. [page 177] See also Fountain Selected Meats (Sales) Pty Ltd (1988) 81 ALR 397; Australian Transport Insurers Pty Ltd v Graham Phillips Road Transport Insurance Pty Ltd (1986) 10 ALR 177 at 178 per Woodward J citing Preston v Preston (1981) 3 WLR 619 at 637; Rosniak v Government Insurance Office of NSW (1997) 41 NSWLR 609 at 616; 26 MVR 204 per Mason P. [s 33B.65] Costs directed to be paid in an award that are not taxed or settled are to be assessed by the court Under subs 33B(5) any costs of the arbitration directed to be paid by an award, that have not been taxed or settled by the tribunal, are to be assessed by the court having jurisdiction under s 34 to hear applications to set aside the award. This provision is an adoption of s 27(3) of the IAA. [s 33B.70] If no provision is made for costs in the award Subsection 33B(6) states that if no provision is made in the award for costs of the arbitration a party may, within 14 days after receiving the award, apply to the arbitral tribunal for directions as to the payment of those costs. In Fletcher Constructions Australia Ltd v Newman as Trustee for Littlejohn

[2002] WASC 162, Parker J stated, at [39]: . it follows that in the absence of any specific direction or contrary intention being evident in the arbitrator’s award of costs to be taxed, a taxing officer of this court would proceed to tax in accordance with the Rules of court in so far as they have made provision for taxation of costs in arbitration proceedings. [s 33B.75] Subsection (7) Under subs 33B(7), it is mandatory for the tribunal, after hearing from any party who wishes to be heard, to amend the award by adding such directions with respect to the payment of costs as the tribunal, in the exercise of its discretion, thinks proper.

Application of Legal Profession Uniform Law (Victoria) 33C For the purposes of section 33B(5), Division 7 of Part 4.3 of Chapter 4 of the Legal Profession Uniform Law (Victoria) applies with any necessary modifications. Note There is no equivalent to this section in the Model Law. [s 33C am Act 17 of 2014 s 160 and Sch 2 item 16, opn 1 July 2015]

ANNOTATIONS [s 33C.5] No equivalent provision There is no equivalent to this section in the Model Law. [s 33C.10] Application of the relevant state Legal Profession Act This section provides for the use of the relevant state Legal Profession Act in ss 33B(5) and 33C. Under s 33B(5), in assessing the costs, the court applies the relevant state Legal Profession Act with any necessary modifications. InWestern Australia, for example, reference would be made to the Legal Profession Act 2008, Pt 10 Div 8 — Cost Assessment. In Victoria, see the Legal Profession Act 2004 (Vic), Pt 3.4 Div 7.

Costs of abortive arbitration 33D (1) Unless otherwise agreed in writing by the parties, if an arbitration is commenced but for any reason fails, the Court may, on the application of a party or the arbitral tribunal made within 6 months after the failure of the arbitration, make such orders in relation to the costs of the arbitration as it thinks just. [page 178] (2) For the purposes of this section, an arbitration is taken to have failed if— (a) a final award is not made by the arbitral tribunal before the arbitration terminates; or (b) an award made is wholly set aside by the Court. (3) If the failed arbitration is a related proceeding (within the meaning of section 27C), the Court may stay proceedings on the application under subsection (1) pending the determination of the other arbitration proceedings to which the failed arbitration is related. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 33D.5] Costs of abortive arbitration If the arbitration has “failed” as defined in s 33D(2) then an application can be made to the court for costs. Failure of an arbitration may be a result of either: actions of the parties (see WA Land Authority v Simto Pty Ltd (WASC, Murray J, 12 February 1998, unreported); or the conduct of the tribunal; or if there is no fault by the parties or the tribunal. The parties may abandon the arbitration for various reasons, including repudiation of the contract that may arise from an anticipatory breach. The tribunal may be the cause of the arbitration failing, where the award is set aside by the court, such as in circumstances where the tribunal denies a party’s right to a reasonable opportunity to be heard under s 34(2)(a)(ii) or breaching the procedures under the Act or as agreed by the parties under s 34(2)(a)(iv). A successful jurisdictional challenge under s 16(9) is an example of where there is no fault by the parties or the tribunal.

[s 33D.10] “As it thinks just” Under s 33D(1) the court has a discretion to make such orders as it thinks just. For discussions of the word “just”, see Pitcher Products Pty Ltd v Country Roads Board [1964] VR 661 (in the context of whether to grant leave under the Limitation of Actions Act 1958 (Vic)). [s 33D.15] “Failed” In s 33D(2) the term “failed” means: (a) a final award is not made by the arbitral tribunal before the arbitration terminates, or (b) an award made is wholly set aside by the court. [s 33D.20] The court has power to stay costs on failed arbitration if there are related proceedings Under s 33D(3) the court has power to stay the costs of a failed arbitration until there has been a determination or award on related proceedings. The court can exercise this power in the course of acting “as it thinks just” in s 33D(1). Under s 27C the grounds for consolidation of arbitral proceedings are: (a) a common question of law or fact arises in all those proceedings; or (b) the rights to relief claimed in all those proceedings are in respect of, or arise out of, the same transaction or series of transactions; or (c) for some other reason specified in the application, it is desirable that an order be made under this section.

Interest up to making of award 33E (1) Unless otherwise agreed by the parties, where an arbitral tribunal makes an award for the payment of money (whether on a claim for a liquidated or an unliquidated amount), the arbitral tribunal may include in the sum for which the award is made interest, at such reasonable rate as the arbitral tribunal determines— [page 179] (a) on the whole or any part of the money; and (b) for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.

(2) Subsection (1) does not— (a) authorise the awarding of interest on interest awarded under this section; or (b) apply in relation to any amount on which interest is payable as of right whether because of an agreement or otherwise; or (c) affect the damages recoverable for the dishonour of a bill of exchange. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 33E.5] “Unless otherwise agreed” Party autonomy is preserved and parties can opt-out of this provision. The general principle that interest is recoverable as part of general damages pursuant to first limb of Hadley v Baxendale (1854) 156 ER 145 and as special damages apply to arbitrations: see Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd [1992] 2 VR 505. [s 33E.10] Interest only payable upon tribunal making an award Under s 33E(1) the tribunal is required to hand down an award before it can make orders as to the payment of interest. There is no power to grant orders for the payment of interest during an arbitration before an award is made. [s 33E.15] Power to award interest at a “reasonable rate” The use of the term “reasonable rate” is the same as in s 25 of the IAA. In determining the rate, the tribunal considers the rate in the contract between the parties or a rate (if any) specified in the arbitration agreement. In keeping with the alignment of the interest provisions with the IAA, in the absence of an interest rate in the contract or the arbitral agreement reference is made to the interest rate prescribed by the proper law of the contract or the lex arbitri. In most cases this rate will be the rate prescribed by the Supreme Court of the state or territory in which the seat of the arbitration is located. In Victoria, the prescribed rate is contained in s 2 of the Penalty Interest Rates Act 1983 (Vic). Although it is important to note that use of the expression “reasonable rate” is divergence from the provisions in the repealed Act that the rate of interest should not exceed the relevant Supreme Court rate. [s 33E.20] “Arbitral tribunal may include in the sum for which the award is made interest” The inclusion of the word “may” suggests that the tribunal has a discretion in exercising its power to award interest. In Cullen v Trappell

(1980) 146 CLR 1; 29 ALR 1, Gibbs J said, at CLR 7, that where such discretion is exercised it must be done so in a judicial manner. Where the tribunal refuses to award interest, then it would be prudent to provide reason as to why it exercised its discretion against the award of any interest. In Panchaud Freres SA v R Pagnan & Fratelli [1974] 1 Lloyd’s Rep 394, a failure to provide reasons for not awarding interest constituted misconduct; though, of course, misconduct is no longer an avenue for appealing an award under the Act. [s 33E.25] “On the whole or any part of the money” Under s 33E(1)(a) the tribunal has power to award interest on the whole or any part of the money. [s 33E.30] “For the whole or part of the period between the date on which the cause of action arose and the date on which the award is made” The power under s 33E(1)(b) removes any doubt that the tribunal can award interest from the date upon which the cause of action arose up to the date the award is made. Doubts were raised whether the tribunal had power to award interest from the date of the issue of the notice of dispute up to the award and also whether the tribunal could award interest from the date on which the cause of action arose to the date of service of the Notice of Dispute. The clear legislative power given under this subsection removes these doubts. [page 180] [s 33E.35] Limitations on the awarding of interest Subsection 33E(2) sets out limitations on the awarding of interest by the tribunal. [s 33E.40] No interest on interest or no compound interest Under s 33E(2)(a) the tribunal cannot award interest on interest. The tribunal cannot award compound interest — but see s 33F. For a general discussion on the common law to awarding interests see H Seton and F Heard, Forms of Decrees, Judgments and Orders: with Practical Notes, 1884. (See also: “Costs in International Arbitration”, Colin CY Ong & Michael Patrick O’Reilly, LexisNexis, 2013). [s 33E.45] No interest payable as a right whether by agreement or otherwise Under s 33E(2)(b) the tribunal cannot award interest in relation to any amount on which interest is payable as of right whether because of an

agreement or otherwise. [s 33E.50] Interest awarded does not affect damages awarded for the dishonour of a bill of exchange Under s 33E(2)(c) the awarding of interest in an award does not affect damages awarded for the dishonour of a bill of exchange.

Interest on debt under award 33F (1) This section applies if— (a) an arbitral tribunal makes an award for the payment of an amount of money; and (b) under the award, the amount is to be paid by a particular day (the due date)— unless otherwise agreed by the parties. (2) The arbitral tribunal may direct that interest, including compound interest, is payable if the amount is not paid on or before the due date. (3) The arbitral tribunal may set a reasonable rate of interest. (4) The interest is payable— (a) from the day immediately following the due date; and (b) on so much of the money as remains unpaid. (5) The direction is taken to form part of the award. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 33F.5] Preconditions to section applying There are three preconditions that must be satisfied before this section applies. First, the tribunal must make an award for the payment of money. Second, the amount of money is to be paid by a particular date. Third, the parties must not have exercised party autonomy and agreed to opt-out of this section. The provision is based on s 32 of the repealed Act. [s 33F.10] If not paid by due date then interest (including compound interest) is payable Under s 33F(2) the tribunal can direct that interest, including compound interest, is payable if the amount is not paid by the

particular day (the due date): see s 33F(1)(b). This is the only provision in the Act that allows for the payment of compound interest: see s 33(2)(a). This subsection together with subs (4)(a) and (4)(b) should encourage the payment of the sum awarded by the due date otherwise from the following day interest or compound interest may be payable on any amount outstanding. [s 33F.15] Tribunal may set a “reasonable rate” of interest If s 33F(3) applies then the tribunal can set a “reasonable rate” of interest: see s 33E(1) and following annotations. [page 181] [s 33F.20] When and on what amount is interest payable Under s 33F(4) the interest is payable from the date immediately following the due date; and on so much of the money that remains unpaid. The interest continues to accrue after a judgment has been entered up until full payment has been made. [s 33F.25] Direction to form part of award Under s 33F(5) the direction is to form part of the award. Included in the award will be any direction for the payment of interest or compound interest.

PART 7 — RECOURSE AGAINST AWARD

Application for setting aside as exclusive recourse against arbitral award 34 (cf Model Law Art 34)

(1) Recourse to the Court against an arbitral award may be made only by an application for setting aside in accordance with subsections (2) and (3) or by an appeal under section 34A. Note The Model Law does not provide for appeals under section 34A. (2) An arbitral award may be set aside by the Court only if— (a) the party making the application furnishes proof that—

(i)

a party to the arbitration agreement referred to in section 7 was under some incapacity; or the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication in it, under the law of this State; or (ii) the party making the application was not given proper notice of the appointment of an arbitral tribunal or of the arbitral proceedings or was otherwise unable to present the party’s case; or (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Act from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Act; or (b) the Court finds that— (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or (ii) the award is in conflict with the public policy of this State. (3) An application for setting aside may not be made after 3 months have elapsed from the date on which the party making that application had received the award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal. [page 182] (4) The Court, when asked to set aside an award, may, where appropriate and so requested by a party, suspend the setting aside of proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside.

ANNOTATIONS [s 34.5] Article V of the New York Convention similar to s 34 The grounds under s 34 have their origins in Art V of the New York Convention (which has been adopted in s 8 of the IAA). The New York Convention has been adopted in s 36 of the Act concerned with recognition and enforcement of awards. The New York Convention has been adopted in many countries and the adoption in the Act aids resolution of issues in these often hotly-contested areas, by providing a set of well-accepted rules. See the Appendix for the New York Convention. Further, it should be noted that when it was drafted, there was a deliberate decision to draft Art 34 of the Model Law (grounds for challenging an award) as closely as possible in the same terms as Art V of the New York Convention. For comprehensive discussions of the drafting history of Art 34, see P Binder, International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions, Sweet & Maxwell, 2010, at [7-011]–[7-024]; and H Holtzmann and J Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary, Kluwer Law International, 1989, pp 910–1003. [s 34.10] Limited recourse against award The only recourse against an award is for a party to make an application for the setting aside of the award. The grounds for setting aside an award by the court are set out in s 34(2). Under the Act, parties can no longer claim misconduct by the arbitrator as a ground for seeking recourse against the award; see with s 42 of the repealed Act. Not only are the new grounds under the Act more specific and narrow than those under the repealed Act, they cannot be modified by agreement between the parties so as to effectively expand the legislative provisions: see, for example, Hall Street Associates LLC v Mattel Inc 128 S Ct 1396 (2008) (US Supreme Court); and the comments of the New Zealand Court of Appeal in Methanex Motunui Ltd v Spellman [2004] 3 NZLR 454 at [105]. In Sui Southern Gas Co Ltd v Habibullah Coastal Power Co (Pte) Ltd [2010] 3 SLR 1, and in the context of a challenge of an international arbitration award, Judith Prakash J, at 7–8, of the Singapore High Court held that the provisions under the legislation were the only grounds from which an award could be challenged. It should also be noted that a challenge under s 34 is distinguished from the mechanism provided under s 33 (see above), which allows a party to, within 30 days of receipt of the award, to “request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical errors or any

errors of similar nature”. The distinction has been explained as follows (G Born, International Commercial Arbitration, Kluwer Law International, 2009, at 2523–4): It is clear that only very narrow categories of “errors” may be corrected under the Model Law. In particular, only “errors in computation” . . . clerical or typographical error or . . . errors of similar nature may be corrected. Article 33(1) is directed towards simple arithmetic mistakes in calculation or typographical errors . . . In contrast, errors in the tribunal’s reasoning in the body of its award are not subject to correction. Even if a tribunal demonstrably misunderstands or overlooks some critical provision of the parties’ agreement or some essential piece of evidence, the remedy is not generally correction of the award under Article 33, but rather than application to annul. Courts in Model Law (and other) jurisdictions have interpreted the scope of tribunal’s authority to correct awards narrowly, refusing to permit corrections based upon a reassessment of the evidence or parties’ arguments. If a party merely seeks a “correction” of an award (similar a “slip rule” correction) then there is no need to make an application to challenge the award under s 34. [page 183] [s 34.15] An arbitral award may be set aside by the court only if In s 34(2) the limited nature of the recourse against the award is emphasised by the word “may” and the words “only if”. The use of the word “may” indicates a discretion in the court not to set aside an award. The court may decide not to interfere with the decision of the tribunal on this jurisdictional question. For instance, if the court considers infringement is not serious enough to warrant setting aside the award. The Singapore Court of Appeal in CRW Joint Operation v PT Perusahaan Gas Negara (Persero) TBK [2011] 4 SLR 305 has also said, at [100], that this ought to be done “only if no prejudice has been sustained by the aggrieved party”. Recently, in Emerald Grain Australia Pty Ltd v Agrocorp International Pte Ltd [2014] FCA 414; BC201403065, Pagone J of the Federal Court of Australia held that the words “if . . . the court finds” did not mean that the court was required to embark upon its own inquiry if the ground had not been pleaded by the party (and see further below at [s 34.60]).

[s 34.20] Burden of proof on party claiming The party claiming must furnish proof of the matters set out in s 34(2)(a)(i)–(iv). The matters contained in these provisions concern the parties (items (i) and (ii)); the award (item (iii)); the arbitral tribunal and the procedure followed by that tribunal (item (iv)). The grounds under s 34(2)(b), which raise matters of significant importance to the state, is not confined by the strict burden of proof required to make out the grounds under s 34(2)(a): see the commentary in E Gaillard and J Savage (Eds), Fouchard Gaillard Goldman on International Commercial Arbitration, Kluwer Law International, 1999, p 963. This is evident from the words used in s 34(2)(a) — “the party making the application furnishes proof”; as oppose to that of s 34(2)(b) — “the court finds that”. [s 34.25] Waiver of the right to appeal The provisions of s 34 need to be read in conjunction with s 4, which is discussed above at [s 4.10] et seq. Consequently, where a party proceeds with arbitration by, for example, appearing or taking procedural action in the arbitration without objection, then the question of waiver may arise: see P Binder, International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions, Sweet & Maxwell, 3rd ed, 2010 at p 60; UNCITRAL Analytical Commentary on Draft Text of a Model Law on International Commercial Arbitration; Report of the Secretary-General, UN GAOR, 18th Session, UN Doc A/CN.9/264 (1985) at 17. [s 34.30] Standard of review under s 34(2)(a) The test for a “procedural irregularity” amounting to misconduct adopted in Australia is the test stated in E Rotheray & Sons Ltd v Carlo Bedarida & Co [1961] 1 Lloyds Rep 220 at 225 per McNair J: I have reached the conclusion that at this stage that . . . There has at least been a technical in irregularity amounting to misconduct . . . The more difficult question, however, is whether the extent that irregularity is such as to justify interference by this court either by way of setting aside the award or remitting the award. The determination of that issue, as it seems to me, depends upon whether the court is satisfied that there may have been — not must have been — or that this irregularity may have caused — not must have caused — a substantial miscarriage of justice that would be sufficient to justify setting aside or remitting of the award, unless those resisting the setting aside or remission could show that no other award could properly have been made than that which was in fact made, notwithstanding the irregularity. This test was followed by Marks J in Victoria in Gas & Fuel Corp Vic v Wood

Hall & Leonard [1978] VR 385 at 392 who noted that the decision had also been followed in Western Australia in Van Dongen v Cooper [1967] WAR 143 and in New Zealand in Wilson v Glover [1969] NZLR 365. It has since been followed in Victoria in subsequent cases including Oil Basins Ltd v BHP Billiton Ltd (2007) 18 VR 346; [2007] VSCA 255 and in Western Australia in D & M (Australia) Pty Ltd v Crouch Developments Pty Ltd [2010] WASC 130. In the United Kingdom a higher standard “substantial injustice” has been adopted in regard to the review of international awards. (See: Dallah Real Estate and Tourism Holding Co v Ministry [page 184] of Religious Affairs, Government of Pakistan [2011] 1 AC 763; [2010] UKSC 46) as well as domestic awards (Azov Shipping Co v Baltic Shipping Co [1999] 1 Lloyds Rep 68). This issue will be developed through the case law relevant to these provisions of the Act. [s 34.35] Section 34(2)(a)(i) The application of these provisions relies on one of two grounds being established. The first is the incapacity of a party to enter into an arbitration agreement; and the second is the invalidity of an arbitration agreement. Although they are two discrete and separate grounds, they are not completely distinct from one another. For discussions of the first ground see Andent Pty Ltd v Thornhill Machine Tools Australia Pty Ltd [2014] VSC 647; BC201410774. In relation to the incapacity of a party to make an agreement, the general contractual principles apply: see N C Seddon, R A Bigwood, and M P Ellinghaus, Cheshire & Fifoot Law of Contract, 10th Australian ed, LexisNexis Butterworths, Sydney, 2012, Ch 17; and J Carter, E Peden and G Tolhurst, Contract Law in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2007, Ch 15. The issue of the invalidity of an arbitration agreement arises more frequently than incapacity. For an arbitration agreement to be considered as being invalid, the relevant factors must have a “direct” impact. This is due to the fact the doctrine of separability of an arbitration agreement is recognised in s 16(1). Therefore, even if the main contract is invalid for reasons of fraud, bribery or misrepresentation, for example, this will be insufficient to invalidate the

arbitration agreement unless factors such as these specifically impact the arbitration clause. An important decision in this regard is that of the House of Lord’s in Fiona Trust v Privalov [2007] All ER 951 where allegations of bribery were made in relation to charter parties. The House of Lords held that: . . . [the] validity, existence or effectiveness of the arbitration agreement is not dependent upon the effectiveness, existence or validity of the underlying substantive contract unless the parties have agreed to do this. It follows that, for example, there must be direct evidence that one party was misled or otherwise induced into agreeing to the relevant arbitration clause. [s 34.40] Section 34(2)(a)(ii) Under this subsection proof is needed that the party making the application was not given proper notice of the appointment of the arbitral tribunal or of the arbitral proceedings or was otherwise unable to present its case. However, it has been said that arbitral tribunals should be afforded wide latitude in how they wish to conduct hearings with a view to ensuring procedural fairness and efficiency: see Andent Pty Ltd v Thornhill Machine Tools Australia Pty Ltd [2014] VSC 647; BC201410774 at [27]. The provisions concern “a fundamental right of a party to an arbitration to be present at any hearing and a reasonable opportunity to put forward the party’s own case to the arbitrator, both as to argument and evidence”: see Equitable Funds Management Ltd (in Liq) v Heinze Equitable Funds Management Ltd (in Liq) v Heinze [2003] QSC 362 at [79] per Mullins J. The requirement to provide proper notice of an appointment of an arbitrator or of the arbitral proceedings is relatively straightforward. The Act does not set out a particular method of notice to be followed. Practically speaking though, most contracts will generally stipulate the form of notice required and specify an address for notices. What constitutes proper notice will naturally depend on the relevant circumstances of each case: see, for example, the decision of LKT Industrial Berhad (Malaysia) v Chun [2004] NSWSC 820, which was decided in the context of an enforcement application under the IAA. The requirement that a party is “otherwise unable to present the party’s case” is a little more complex, and may be linked to s 18 which requires that “the parties must be treated with equality and each party must be given a reasonable opportunity of presenting the party’s case”. Under the institutional arbitral rules, the tribunal is generally empowered to conduct the arbitral proceedings as it sees fit but with a caveat that the parties be provided an opportunity to present their cases: see, for example, r 17.1 of the ACICA Rules and r 17(1) of the

UNCITRAL Rules. This will sometimes [page 185] mean that the arbitral tribunal has to maintain a balance with respect to ensuring that a party has a reasonable opportunity to present its case whilst also ensuring that an arbitration is conducted in a time and cost efficient manner. It has been observed that the recurring issues regarding procedural fairness generally concern, among others (see G Born, International Commercial Arbitration, Kluwer Law International, 2009, 2580–93: allowing new claims to be introduced at a late stage without affording the responding party adequate time to respond; refusal to hold a hearing; failing to allow a party present an argument or evidence; scheduling hearings which significantly prejudices a party’s ability to prepare its case or call a witness; excluding or allowing evidence to be admitted; and inadequate internal deliberations by all members of the tribunal. In Sugar Australia Pty Ltd v Mackay Sugar Ltd [2012] QSC 38 the arbitrator had failed to hear submissions on a matter fundamental to the decision on liability. The parties had not considered the matter relevant and had failed to address it. It was held that the conduct of the arbitrator amounted to a breach of natural justice sufficient to set aside the award and remitting it to the arbitrator for further consideration under s 42 of the Commercial Arbitration Act 1990 (Qld). The power under s 34(2)(a)(ii) would now be used in a case involving procedural fairness. In Hebei Jikai Industrial Group Co Ltd v Martin [2015] FCA 228; BC201501541, it was argued that an award made by an arbitrator meant that the plaintiff was unable to present its case. There, the parties had agreed that the arbitrator could determine a threshold issue of whether an auditor’s report disclosed a basis for a breach of a legal duty from one party to another and whether such breach caused a loss. The arbitrator made an award finding that the auditor’s report did not disclose a basis for breach or consequential loss. The plaintiff argued that it was unable to present its case because there was no hearing on the merits where it could rely on witness statements, expert reports and other evidence. However, the court found that no further hearing was

necessary because the parties had agreed that the arbitrator could make a final award dealing with the threshold question and the plaintiff had been afforded an opportunity to make detailed submissions in respect of that threshold question: see at [69]–[74]. For further discussion of this provision in the context of international arbitration, see N Blackaby, C Partasides, A Redfern and M Hunter, Redfern and Hunter on International Arbitration, 5th ed, Oxford University Press, 2009, at [10.52]–[10.55]; and G Born, International Commercial Arbitration, Kluwer Law International, 2009, 2573–95. [Case Study: Cameron Australasia Pty Ltd v AED Oil Ltd [2015] VSC 163] The case of Cameron Australasia Pty Ltd v AED Oil Ltd [2015] VSC 163; BC201503256 concerned competing applications by the parties in respect of a commercial arbitral award made under the Commercial Arbitration Act 2011 (CAA). Cameron made an application to the Supreme Court of Victoria to set aside the award under s 34(2) of the CAA. AED made an application to the court to enforce the award under s 35 of the CAA. The underlying dispute between Cameron and AED related to the costs of rectifying leaks at a hub connector and production flowline in the Timor Sea. AED contended that the cause of the leaks was due to the drilling by an employee of Cameron. It denied liability for the leaks. The parties agreed to resolve their dispute as to liability and quantum by arbitration held in Melbourne. The tribunal determined that Cameron had breached its duty of care to AED, and declared it was liable to pay damages and interest in the sum of US$8,130,182 plus interest and costs. The application by Cameron to set aside the arbitral award was based on two procedural rulings made by the arbitral tribunal. The relevant rulings of the tribunal were as follows: [page 186] 1. First, the procedural ruling to refuse Cameron’s application to re-open the arbitral hearing to withdraw a voluntary admission made by it (that it owed a duty of care to AED), and to amend its defence to positively dispute the existence of a duty of care. 2. Secondly, the procedural ruling to refuse Cameron relying on an expert

report in circumstances where the expert was not to be called by Cameron to give evidence, to be cross examined or to adopt the expert report. In interpreting s 34(2) of the CAA, the court had regard to the paramount objectives of the CAA as set out in s 1AC and 2A of the Act. The court also had regard to the importance of s 18 and 19 of the CAA. Section 18 mandates that parties to an arbitration must be treated with equality and that each party must be given a reasonable opportunity of presenting its case. Section 19 provides an arbitral tribunal broad powers to conduct the arbitration. Among other things, it provides that the parties are free to agree on the procedure to be followed by the tribunal, and failing such agreement, the tribunal may conduct the arbitration in such manner as it considers appropriate subject to the provisions of the CAA. The parties made extensive submissions in relation to the applicable principles governing the setting aside of awards. In particular, the court noted the “salutary and instructive” statement of principle set out by Menon CJ of the Singapore Court of Appeal in AKN v ALC [2015] SGCA 18 (at [37]–[39]). It is apposite to set out the relevant parts of the Chief Justice’s decision: [37] A critical foundational principle in arbitration is that the parties choose their adjudicators. Central to this is the notion of party autonomy. Just as the parties enjoy many of the benefits of party autonomy, so too must they accept the consequences of the choices they have made. The courts do not and must not interfere in the merits of an arbitral award and, in the process, bail out parties who have may choices that they might come to regret, or offer them a second chance to canvass the merits of their respective cases. This important proscription is reflected in the policy of minimal curial intervention in arbitral proceedings, a mainstay of the Model Law and the [International Arbitration Act of Singapore]. [38] In particular, there is no right of appeal from arbitral awards. That is not to say that courts can never intervene. However, the grounds for curial intervention are narrowly circumscribed, and generally concern process failures that are unfair and prejudice the parties or instances where the arbitral tribunal has made a decision that is beyond the scope of the arbitration agreement. It follows that, from the court’s perspective, the parties to an arbitration do not have a right to a “correct” decision from the arbitral tribunal that can be vindicated by the courts. Instead, they only have a right to a decision that is within the ambit of their consent to have their dispute

arbitrated, and that is arrived at following a fair process. [39] In the light of their limited role in arbitral proceedings, the courts must resist the temptation to engage with what is substantially an appeal on the legal merits of an arbitral award, but which, through the ingenuity of counsel, may be disguised and presented as a challenge to process failures during the arbitration. A prime example of this would be a challenge based on an alleged breach of natural justice. When examining such a challenge, it is important that the court assesses the real nature of the complaint. . . In this case, Cameron submitted that the arbitral tribunal did not permit it to present part of its case, namely, that it did not owe AED a duty of care in tort to take reasonable care. It asserted that as it was found liable for a breach of that duty, the tribunal’s decision went to the heart of its defence. Prior to the exchange of opening submissions, but after service of Cameron’s points of defence, a decision of the New South Wales Court of Appeal was delivered in the case of The Owners — Strata Plan No 61288 v Brookfield Australia Investments Ltd (2013) 85 NSWLR 479; [2013] NSWCA 317; BC201313235 (the Brookfield Decision). The decision of the Court of Appeal concerned the issue of the duty of care in court in respect of parties who were sophisticated and not vulnerable in the commercial sense. Having regard to the Brookfield Decision and the merits [page 187] of the case, Cameron’s legal team gave further consideration to the argument regarding whether it owed a duty of care to AED, and on the basis of advice, made a decision to admit the existence of a pleaded duty of care. Subsequent to Cameron admitting the existence of the duty, the High Court of Australia overturned the Brookfield Decision. By reason of this, Cameron made an application to re-open its case to seek to withdraw its admission, which was refused. AED submitted that Cameron’s admission was voluntary, and that it was not necessary to admit the existence of the duty. AED submitted that Cameron was able to, and did, present its case that it did not breach the duty of care it had admitted it owed to AED. Further, AED submitted that at the time Cameron made the admission, it knew that the High Court of Australia had granted special leave to appeal the Brookfield Decision, and

therefore knew that there would be a subsequent decision in that case. AED submitted that the true character of Cameron’s admission was as a result of mistaken advice given by Cameron’s legal advisors, and that authorities including AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27; BC200906905 provide that procedural fairness does not require a court to allow a party to change its case during trial. Croft J considered that the relevant enquiry was whether Cameron had an opportunity to present its case as required by s 18 of the CAA. His Honour considered that Cameron did have a reasonable and “full” opportunity to present its case before the tribunal. Therefore, the court considered that it was not denied an opportunity to reopen its case. Furthermore, Croft J dismissed Cameron’s claim that the tribunal’s refusal to permit Cameron to rely on an expert report was contrary to the dispute resolution agreement (containing the arbitration agreement). Croft J held that the tribunal had the power to conduct the arbitration in such a manner as is considered appropriate, subject to any procedure agreed by the parties, and to determine the admissibility, relevance, materiality and weight of any evidence. His Honour held that there was nothing in the dispute resolution deed which detracts from this position. On the basis the rules of evidence applied to the arbitral tribunal through the law of the arbitral seat (being the law of Victoria), the Tribunal had a discretion to exclude evidence otherwise admissible as a matter of law. Croft J considered that the tribunal exercised its powers with respect to the refusal to admit the evidence in a considered and reasoned manner. On the basis the application to set aside the arbitral award failed, the court made orders for the enforcement of the awards under s 35 of the Act. [s 34.45] Section 34(2)(a)(iii) Under this subsection, proof is needed that the award deals with the dispute not contemplated by or not falling within the terms of the submission to arbitration, or that the award contains decisions on matters beyond the scope of the submission to arbitration. The subsection contains a proviso that if the decisions on matters submitted to arbitration can be separated or severed from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside. The provision, when read closely, specifies two circumstances for challenging an arbitral award. First is the general situation where the

tribunal made an award which exceeded its powers by dealing with matters not under the terms of reference. The second arises when the dispute referred to the tribunal is not within the contemplation of the parties’ arbitration agreement. An example of the first is where a tribunal exceeds its jurisdiction by awarding damages far beyond what was claimed: see, for example, Paris Lapeyre v Sauvage (2001) Revue de l’Arbitrage 806. Though in some circumstances an arbitral tribunal may be permitted to award damages beyond what was claimed: see Evans v National Pool Equipment Pty Ltd (1972) 2 NSWLR 410 at 417 per Jacobs JA, Manning and Hope JJA. In terms of construing the arbitration agreement, it may be useful to consider the approaches taken by the courts. Generally speaking, in interpreting the clause conferring the tribunal with jurisdiction, the courts will favour an approach that gives effect to the parties’ intention to arbitrate. That accords with the view that “a considerable measure of judicial deference is [page 188] accorded the arbitrators’ interpretation of the scope of their mandate under the parties’ submissions”: G Born, International Commercial Arbitration, Kluwer Law International, 2009, 2609, n 295. In interpreting the scope of an international arbitration agreement, the general rules of contractual construction apply (see: G Born, International Commercial Arbitration, Kluwer Law International, 2009, 1063–4): It is almost uniformly held or assumed that generally-applicable rules of contract construction apply to the interpretation of international arbitration agreements. Arbitral tribunals routinely refer to generally-applicable canons of contract interpretation, often not derived from any single national legal system, in determining the meaning and scope of arbitration agreements. Similarly national courts often begin their analysis of the scope of an international arbitration agreement by applying ordinary rules of contract interpretation…. These generally-applicable rules of contract interpretation include principles of ascertaining the parties’ objective intentions, contra proferentem, the specific prevailing over the general, giving effect to all parts of the parties’ agreement, ut res magis valeat quam pereat, notions of good

faith and common usage of terms at the time of the agreement. (citations omitted) Certainly, the courts have reached the position that arbitration agreements should be construed liberally and in line with the commercial realities, and to give effect to the presumed intention of parties wishing to resolve their disputes by way of arbitration (though there is, of course, no legal presumption in favour arbitration). (See: for example, Ferris v Plaister (1994) 34 NSWLR 474; IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466; Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; Walter Rau Neusser Oel and Fett AG v Cross Pacific Trading Ltd [2005] FCA 1102; and Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] 238 ALR 457; [2006] FCAFC 192.) In Comandate Marine Corp v Pan Australia Shipping Pty Ltd, above, Allsop J (as his Honour then was) (with Finn and Finkelstein JJ agreeing) said, at [164]– [165]: [164] . . . The court should, however, construe the contract giving meaning to the words chosen by the parties and giving liberal width and flexibility to elastic and general words of the contractual submission to arbitration. [165] This liberal approach is underpinned by the sensible commercial presumption that the parties did not intend the inconvenience of having possible disputes from their transaction being heard in two places. This may be seen to be especially so in circumstances where disputes can be given different labels, or placed into different juridical categories, possibly by reference to the approaches of different legal systems. The benevolent and encouraging approach to consensual alternative non-curial dispute resolution assists in the conclusion that words capable of broad and flexible meaning will be given liberal construction and content. This approach conforms with a common-sense approach to commercial agreements, in particular when the parties are operating in a truly international market and come from different countries and legal systems and it provides appropriate respect for party autonomy. In circumstances where only part of the award deals with issues beyond the arbitral tribunal’s jurisdiction, then it may be possible for a court to set aside those parts if they are severable. The leading authority on this point is the decision of the Victorian Court of Appeal in ACN 006 397 413 Pty Ltd (formerly called Palace Entertainment Corp P/L) v International Movie Group (Canada)

Inc & Movie Group Inc [1997] 2 VR 31 which was concerned with the repealed Act. It was found that one of the clauses of the award was void for uncertainty, but the rest could stand. The test was stated by Brooking JA (at 38) (with Hayne and Charles JJA agreeing): When is severance of an award possible? Sometimes it is laid down that severance is possible if it may be effected without injustice. It has been said that for severance to occur it must appear that the residue that is to be allowed to stand was in no way affected by the part of the award that is rejected . . . [S]everance will be impossible where there is such a connection [page 189] between the bad part of the award and the part which, considered by itself, is good that it would be unjust to allow the “good” part to stand alone. Alternatively . . . severance is not possible unless the residue to be allowed to stand was in no way affected by the part of the award that is rejected. [s 34.50] Subsection 34(2)(a)(iv) Under this subsection proof is needed that the composition of the arbitral tribunal or the arbitral procedure was not in accord with the agreement of the parties, unless the agreement was in conflict with the provision of the Act from which the parties cannot derogate, or, failing such an agreement, was not in accordance with the Act. The provision contains two separate points to consider: (a) whether the composition of the arbitral tribunal; or (b) the arbitral procedure was in accordance with the parties’ agreement. In London Export Corporation Ltd v Jubilee Coffee Roasting Co Ltd [1958] 1 WLR 271; [1958] 1 All ER 494, Diplock J said, at 277: . . .Where the award has been made by the arbitrator in breach of the agreed procedure, the applicant is entitled to have it set aside, not because there has been necessarily any breach of the rules of natural justice, but simply because the parties have not agreed to be bound by an award made by the procedure in fact adopted . . . However, if the parties’ agreement stipulates conditions for the composition of the arbitral tribunal or arbitral procedure which are inconsistent with the mandatory provisions of the Act, there can be no challenge to the award if the

arbitral tribunal does not adhere to the stipulated conditions in favour of applying the mandatory law. In Andent Pty Ltd v Thornhill Machine Tools Australia Pty Ltd [2014] VSC 647; BC201410774, it was alleged — and ultimately rejected — that the arbitrator had met in secret with only one party and which meant that “the arbitral procedure was not in accordance with the agreement of the parties”. [s 34.51] Case study — Hebei Jikai Industrial Group Co Ltd v Martin [2015] FCA 228 In 2012, Hebei Jikai Industrial Group Co Ltd (HJI) and Mr Vincent Martin were, along with other parties, involved in a commercial dispute in respect of RUS Holdings (Australia) Pty Ltd. HJI and Martin owned shares in RUS Holdings and Martin was also a director of RUS Holdings. Those proceedings were commenced in the Supreme Courts of New South Wales and Queensland, and which were ultimately resolved by way of a Deed of Settlement (Deed). The Deed provided for a procedure to be adopted and followed in order to resolve the dispute concerning whether Martin had breached his duties as a director of RUS Holdings or its subsidiary. That agreed procedure required appointing an auditor who would provide a report to HJI and Martin. If the report disclosed “a basis” for a breach of duty by Martin, then Martin would be able to dispute that finding and refer it to a binding international arbitration. The arbitration would then determine if a breach did occur and what loss flowed as a consequence. Subsequently, an auditor was appointed and produced a report. Martin disputed the report and an arbitrator was appointed. The question for the arbitrator was whether the auditor’s report had disclosed a basis of a breach of duty on part of Martin. The arbitrator determined this preliminary question in the negative and made a final award finding that the audit report did not on its face disclose a breach. HJI then sought to challenge the award on the basis of a number of grounds under the Model Law, including Art 34(2)(a)(ii) and 34(2)(b): see paras [s 34.40] and [s 34.60]. One of the grounds argued by HJI was that the procedure adopted by the arbitrator had not been in accordance with the Deed. It submitted that the arbitrator had erroneously construed the Deed which led the arbitrator find — as a subsequence to his finding that the auditor’s report did not disclose a breach — that he had no jurisdiction. HJI argued it was therefore denied a full hearing on the merits and was unable to present its case. HJI’s submission was that the Deed envisaged the arbitrator would

[page 190] determine if there was a breach and any consequential loss — not the auditor — and such a determination could be made after tit had been able to file evidence, expert reports, and otherwise present its case. Wigney J of the Federal Court of Australia rejected HJI’s submission. His Honour found that HJI had been afforded the opportunity to present its case and the procedure adopted by the arbitrator fell within the ambit of what the parties had agreed to. His Honour said that the parties had agreed the arbitrator could deal with the auditor’s report as a preliminary issue and HJI ought not to be allowed to, in effect, attack the merits of the arbitrator’s award because it was dissatisfied with it. His Honour’s very comprehensive and instructive reasons underline that parties cannot seek to challenge the merits of an arbitrator’s award behind the grounds set out in Art 34 of the Model Law (at [77]–[98]): [77] HJI’s submissions in relation to this ground of challenge are similarly misdirected. [78] It may be, as HJI submits, that the agreement of the parties envisaged that, when the dispute was referred to arbitration, the arbitrator would make his own findings and reach his own conclusions in respect of any relevant disputed findings disclosed in the audit report. By incorporating the IAMA Rules in the agreement, the parties agreed that the arbitral procedure may include the preparation of pleadings, the preparation of joint reports of experts, preparation of a joint bundle of documents, witness statements and oral evidence, including cross-examination (see r 17 and Sch 1 of the IAMA Rules). It is undoubtedly correct that none of this occurred. [79] It does not follow, however, that the arbitral procedure that was adopted was not in accordance with the agreement of the parties. The parties were free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings (see Art 19 of the Model Law). Here, as has been said, the parties agreed to have the question whether Mr Tsang’s report disclosed a basis for a breach of duty by Mr Martin determined by the arbitrator as a threshold or preliminary issue. They also agreed on the particular procedures to be adopted in determining that threshold issue. [80] Even putting those matters aside, by agreeing to incorporate the IAMA Rules in relation to the arbitral procedure, the parties agreed that the arbitrator could rule on his jurisdiction (see r 9(7) of the IAMA Rules) and that the arbitrator was empowered to adopt procedures suitable to the particular case

so as to provide a fair, expeditious and cost-effective process for determination of the dispute (r 14 of the IAMA Rules). They also agreed that, if a party continued to take part in the arbitration without objecting, within a reasonable time, that the arbitration had been unfairly conducted, or there had been a failure to comply with the agreement, that party would be deemed to have waived its right to make such objection later (r 16 of the IAMA Rules). [81] When regard is had to these rules, which are incorporated in the agreement between the parties, together with the fact that the parties agreed (and the arbitrator ruled) that the arbitration proceed in the manner it did, and the fact that HJI did not object to the procedure until after the threshold issue was decided adversely to it, there is no merit in HJI’s complaint that the arbitral procedure was not in accordance with the agreement. Whilst the arbitration may not, as HJI complains, have gone to a final hearing on the merits, that was because the threshold issue, which directly or indirectly went to the arbitrator’s jurisdiction, was determined adversely to HJI. It does not follow that the arbitral procedure was not in accordance with the agreement of the parties. For the reasons already given, it plainly was. [82] HJI also submits that, in deciding the threshold issue adversely to it, the arbitrator misconstrued the terms of the Deed and therefore the agreement between the parties. This led the arbitrator, so the argument goes, to fail or refuse to conduct a full hearing on the merits as required by the Deed and agreed by the parties. [83] Even if there is some merit in that submission, it is not to the point. It amounts to an impermissible attack on the merits of the award. These proceedings are not an appeal from the [page 191] arbitrator’s award. Nor are they some form of judicial review at large. An award cannot be set aside simply on the ground that it contains errors of fact or law. The court can only set aside an award if one of the grounds in Art 34 of the Model Law is made out. [84] To make out the ground in Art 34(2)(a)(iv) of the Model Law, HJI must relevantly furnish proof that the arbitral procedure was not in accordance with the agreement of the parties. The reference to “arbitral procedure” in Art 34(2) (a)(iv) must, in the present context, be read as meaning the arbitral procedure adopted in arriving at the award under challenge. The award under challenge

here is the arbitrator’s “final award” that determined that Mr Tsang’s report did not relevantly disclose a breach by Mr Martin. For the reasons already given, HJI has not furnished proof that the procedure adopted in arriving at the award was not in accordance with the agreement of the parties. Such proof as there is demonstrates that the arbitral procedure adopted in arriving at the award in question was in accordance with the agreement of the parties. [85] It may be accepted that in some circumstances an erroneous finding by an arbitrator that he or she has no jurisdiction to conduct an arbitration may give rise to a ground under Art 34(2)(a)(iv) where the result is that the arbitrator fails entirely to give any effect to the agreed dispute resolution procedure at arbitration: see Gary B Bom, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014) at 1103. But this is not such a case. An arbitration was conducted. An agreed procedure was put in place to deal with an agreed threshold issue. That issue was determined adversely to one of the parties to the agreement in a final award. The effect of the determination in the award was to bring the arbitration to an end. It does not follow that the arbitrator failed entirely to give effect to the agreed dispute resolution procedure. [85] It may be accepted that in some circumstances an erroneous finding by an arbitrator that he or she has no jurisdiction to conduct an arbitration may give rise to a ground under Art 34(2)(a)(iv) where the result is that the arbitrator fails entirely to give any effect to the agreed dispute resolution procedure at arbitration: see Gary B Bom, International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014) at 1103. But this is not such a case. An arbitration was conducted. An agreed procedure was put in place to deal with an agreed threshold issue. That issue was determined adversely to one of the parties to the agreement in a final award. The effect of the determination in the award was to bring the arbitration to an end. It does not follow that the arbitrator failed entirely to give effect to the agreed dispute resolution procedure. [86] In any event, HJI’s contention that the arbitrator misconstrued the relevant terms of the Deed, and therefore mistakenly failed to conduct the agreed arbitration, has no merit in the present context and must be rejected. [87] The issue concerning the correctness or otherwise of the arbitrator’s award is by no means easy to resolve. The question of construction the arbitrator was required to consider and determine was and is difficult. The words the parties chose to use in cl 10.1 of the Deed (“discloses a basis for a breach of a legal duty”) are somewhat obscure if not opaque. To the extent

that Mr Tsang’s report expresses any findings or conclusions in terms of cl 10.1, those findings or conclusions also lack clarity and certainty. The arbitrator was not a lawyer. It is in these circumstances perhaps not surprising that the arbitrator’s reasons are also at times somewhat unclear and difficult to understand. [88] Nevertheless, the interpretation of cl 10.1 arrived at by the arbitrator is one which the words used in cl 10.1 can reasonably bear. It is and was reasonable for the arbitrator to conclude that the words used in cl 10.1, read in context, meant that for cl 10.1 to be engaged, the audit report had to, at a minimum, identify, with some degree of clarity or precision, the basis of a breach and the link that the breach had to a consequential loss to one or both of the relevant companies. It was open to the arbitrator to find, on a proper construction of cl 10 of the Deed, that it was not enough for the report to simply flag areas of possible irregularity. The Deed gave Mr Martin a right to dispute any finding in the report that disclosed a breach or basis for a breach. It is difficult to see how one can dispute part of a report that simply “flags” a possible irregularity or a possible breach. [89] The arbitrator did not, as it appears to be submitted by HJI, find that the words used in cl 10.1 required the audit report to identify the legal elements of any alleged breach, together with the facts or evidence that tended to establish each element. Nor did the arbitrator suggest that cl 10.1 required that the audit report express legal views or conclusions. Rather, the arbitrator found only that the identification of the basis of the breach, and the link to any consequential loss, had to be sufficient to enable Mr Martin to make an informed decision whether or not to dispute the “alleged breach, basis for breach, or loss”. It also had to be [page 192] sufficient to “set the content” of any arbitration. Contrary to HJI’s submission, in so finding, the arbitrator had regard to the context in which the words were used, including the commercial context. [90] HJI submits that the construction or interpretation arrived at by the arbitrator was too strict and failed to have regard to the surrounding circumstances. The surrounding circumstances were said to include correspondence between the parties’ solicitors in relation to the drafting of the Deed. That correspondence tends to reveal that cl 10.1 was ultimately worded

as it was because HJI suggested (and Mr Martin ultimately agreed) that an auditor was unlikely to express legal views about whether or not there had been a breach. That context is said to inform the meaning of the words “basis for”. [91] Mr Martin objected to the admission into evidence of the correspondence on the basis of relevance and because the communications were privileged under s 131 of the Evidence Act 1995 (Cth) (Evidence Act). The admissibility of these documents was not determined at the hearing. Rather, it was indicated that the admissibility would be dealt with in the final judgment. [92] To a certain extent the question of the admissibility of the correspondence is somewhat academic. That is because, even if admitted, the correspondence is of very marginal relevance. The context provided by the correspondence does not greatly assist in resolving the question of construction of cl 10.1 of the Deed and ultimately does not establish that the arbitrator’s interpretation of cl 10.1 was erroneous. [93] Nevertheless, to avoid any doubt, it should be made clear that Mr Martin’s objection to the admissibility of the correspondence is overruled and the documents are admitted in evidence. The correspondence is potentially relevant to the surrounding circumstances, though for the reasons already given, ultimately it is of only marginal relevance and is to be afforded little weight. It should also be noted that the correspondence was, in any event, before the arbitrator. It is probably relevant and admissible on that basis alone. To the extent that the documents may fall within s 131(1) of the Evidence Act, the exception in s 131(2)(f) may be taken to apply. That paragraph should not be narrowly construed and can encompass proceedings where the interpretation of a settlement agreement is in issue. [94] HJI’s submission that the arbitrator erred in concluding that the findings in Mr Tsang’s report, such as they were, did not satisfy the minimum requirements of cl 10.1 also has no merit. It was open to the arbitrator to conclude that the report did not sufficiently disclose any “basis” for a breach by Mr Martin, or disclose a link to any consequential loss. [95] The conclusion that the arbitrator did not err in construing the Deed, or in finding that the audit report did not engage cl 10.1, is also fortified by the principle of judicial restraint that generally applies in relation to international commercial arbitrations. Section 39 of the IA Act relevantly provides, in effect, that where the court is considering an application under Art 34 of the Model Law (see s 39(1)(a)(v) of the IA Act) the court must, in doing so, have regard to the objects of the IA Act and the fact that arbitration is an efficient,

impartial, enforceable and timely method by which to resolve commercial disputes and the fact that awards are intended to provide certainty and finality. [96] Those considerations indicate that there should be a degree of judicial restraint in relation to challenges to international arbitral awards. Judicial restraint in this context is supported by both Australian and international authority: Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (No 2) [2012] FCA 1214; BC201208661 at [34]–[35], [50] (Castel Electronics); Emerald Grain at [7]–[12]; Quintette Coal Limited v Nippon Steel Corporation (1990) Carswell BC 232; 50 BCLR (2d) 207; [1991] 1WWR 219 at [27]–[33] and the cases there referred to and cited. Although decisions of courts in other countries which give [page 193] effect to the Model Law are not binding, there is an obvious importance in taking them into account to ensure uniformity in the interpretation of the Model Law: Castel Electronics at [36]; Hebei Import & Export Corp v Polytek Engineering Co Ltd [1999] 2 HKC 205 at 216. [97] Judicial restraint in this context would suggest both that arbitral awards should not be scrutinised upon by overzealous judicial review, and that the discretion to set aside awards should be exercised sparingly and only in clear cases. This is not such a case. [98] It follows that HJI’s challenge to the arbitral award under Art 34(2)(a)(iv) of the Model Law has no merit and must be dismissed. [s 34.55] Case study—Pacific China Holdings Ltd v Grand Pacific Holdings Ltd This issue arose with s 34(2)(a)(iv) (the arbitral procedure was not in accordance with the agreement of the parties), for consideration by the Hong Kong Court of Appeal in Pacific China Holdings Ltd (in liq) v Grand Pacific Holdings Ltd [2012] HKCA 200; [2012] 4 HKLRD 1. Pacific China Holdings (PCH) agreed to pay Grand Pacific Holdings (GPH) US$40 million with interest at 10% per annum payable in arrears in consideration of the transfer by GPH to PCH of all of GPH’s interest in a certain joint venture interests described in a loan agreement. The loan agreement provided that it should be construed and governed by the laws of the state of New York. Clause 14 provided that any dispute or claimed could be finally settled by arbitration in Hong Kong under the Rules of Conciliation in

Arbitration of the International Chamber of Commerce (the ICC Rules) in force at the time of any such arbitration. On 24 August 2009 the tribunal handed down its award in which it unanimously ordered PCH to pay the sum of US$55 million to GPH as well as interest at the rate of 5% per annum from 1 June 2009 until the award was satisfied or judgment entered on it by a court. The tribunal unanimously dismissed a counterclaim by PCH that the loan agreement was unenforceable and that it was entitled to reimbursement of US$9 million plus interest paid to GPH. PCH was also ordered to pay the costs. PCH applied to set aside the award on the basis of Art 34(2)(a)(ii) and Art 34(2)(a)(iv) of the Model Law (which effectively mirror the same numbered provisions of the Act). The Hong Kong Court of Appeal (Hon Tang VP (with whom Kwan and Fok JJA agreed)) stated that the court’s approach to such an application was not controversial. Tang VP said, at [7]: . . . The court is concerned with “the structural integrity of the arbitration proceedings”. The remedy of setting aside (which is not materially distinguishable from refusal of enforcement under Article 36) is not an appeal, and the court will not address itself to the substantive merits of the dispute, or to the correctness or otherwise of the award, whether concerning errors of fact or law. It will address itself to the process . . . Before the tribunal was a question with respect to Taiwanese law. The tribunal allowed GPH to serve expert evidence on foreign law a day prior to an evidential hearing. In this regard, it departed from the agreed procedural timetable with respect to the exchange of pre-hearing submissions. It was submitted on behalf of PCH that the procedure adopted by the tribunal was not in accordance with the agreement of the parties and a breach of Art 34(2)(a)(iv). It was also submitted that the procedure adopted was unfair in that it gave an advantage to GPH of seeing PCH’s argument on the Taiwanese law issue before it had prepared its submissions. This unfairness, it was contended, rendered PCH unable to present its best case, contrary to Art 34(2)(a)(ii). These allegations were rejected by Tang VP. Tang VP held, at [52]–[53]: [52] . . .Whether PCH could be said to have changed its case late in the day was a matter for the decision of the Tribunal. Saunders J should not have question the merits of the tribunal’s decision to grant leave to reamended, and the terms on which such leave was granted. On the

material available to Saunders J, I can see no basis upon which he was entitled to disagree with the decision of the Tribunal. The tribunal clearly took the view that GPH had been prejudiced by the lateness of the application and hence it was only prepared to give leave to re-amend on terms. [53] . . . Saunders J acknowledged that if the Tribunal’s decision had been made by a court that would have been upheld. However, he felt that the agreement in the Procedural timetable precluded the Tribunal’s order. With respect to Saunders J, I do not believe that the Procedural Agreement required the Tribunal, in the event of a late amendment to require sequential filing of submissions. . . Tang VP found support for his views in the work by W Craig, W Park and J Paulsson in International Chamber of Commerce Arbitration, 3rd ed, Oceana Publications Inc, 2001, at [16.04] when dealing with Art 15(2) of the ICC Rules: Except in the most egregious cases, the wide discretion of arbitrators and the flexibility of arbitral processes have been confined by national courts which quite regularly reject the procedural arguments of disappointed parties. Tang VP concluded, at [56], that in his view there was no contravention of Arts 34(2)(a)(ii) or 34(2)(a)(iv) in relation to the Taiwanese law issue. Tang VP said, at [68], that he did not agree with the trial judge that the refusal to receive and consider the additional authorities prevented PCH from presenting its case which, therefore constituted a violation of Art 34(2)(a)(ii). Further Tang VP did not accept that the trial judge was entitled to interfere with a case management decision, which was fully within the discretion of the tribunal to make. PCH’s complaint was that they had been denied leave to reply on an issue. The trial judge held that the tribunal was not entitled to refuse leave to reply on an issue. Tang VP said, at [77], that the tribunal had taken the view, as they were entitled to, that the issue was raised at a late stage in the proceeding and that, as PCH had two opportunities to make submissions on this issue, the submissions should end with the other parties’ submissions on a certain date. He held that given the circumstances under which this issue was raised the tribunal could not be faulted for not allowing PCH another opportunity to deal with the issue. Moreover, he could not agree with the trial judge that the result might have been different if PCH had been given leave to respond. The tribunal decided the Hong Kong law issue on at least two bases. First, that New York law governed the loan agreement, including any issue as to its due

execution. Second, there was ample evidence of ratification. Tang VP found support from the decision of Lam J in Brunswick Bowling Billiards Corp v Shanghai Zhonglu Industrial Co Ltd [2011] 1 HKLRD 707 that: [40] . . . If the Tribunal gave several reasons for the award with any single one of those being sufficient for its decision, the court may decline to set aside the award even if the Tribunal had not heard the parties on one of the reasons provided that the court is satisfied the result would be the same in the light of other reasons given. Counsel for PCH submitted that PCH was entitled not merely to a reasonable opportunity to be heard, but a full opportunity to be heard. He accepted, however, that full opportunity cannot mean that a party is entitled to present any case it pleases, any time it pleases no matter how long the presentation should take. This accords with what is stated in H Holtzmann and J Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary, Kluwer Law International, 1989, at p 551 where it is stated: It is also submitted that the terms “equality” and “full opportunity” are to be interpreted reasonably in regulating the procedural aspects of the arbitration. While, on the one hand, the arbitral tribunal must provide reasonable opportunities to each party, this does not mean that it must sacrifice all efficiency in order to accommodate unreasonable procedural demands by a party. For example, as the Secretariat noted, the provision does not entitle a party to obstruct the proceedings by dilatory tactics, such as by offering objections, amendment, or evidence on the eve of the award. [page 195] Thus Tang VP said, at [105]: . . . an error would only be sufficiently serious if it has undermined due process. A party who has had reasonable opportunity to present its case will rarely be able to establish that he has been denied due process. Even so, the court may refuse to set aside the award if the court is satisfied that the arbitral tribunal could not have reached a different conclusion. How a court may exercise its discretion in any particular case will depend on the view it takes of the seriousness of the breach.

Some breaches may be so egregious that an award would be set aside although the result could not be different. Tang VP, at [106] agreed that: . . . the burden is on an applicant to show that he had or might have been prejudiced. In some cases, the prejudice is obvious and it matters little who has the burden. Generally speaking, an applicant who complains of a violation is best placed to show that it has been prejudiced and thus, the burden to show prejudice should be on the Applicant. [s 34.57] Case Study—Ringwood Agricultural Company Pty Ltd v Grain Link (NSW) [2013] NSWSC 191 In Ringwood Agricultural Co Pty Ltd v Grain Link (NSW) Pty Ltd [2013] NSWSC 191; BC201301130, Hammerschlag J refused the plaintiff’s application to set aside an arbitral award on the basis the arbitral procedure was not in accordance with the arbitration agreement and the Act (pursuant to subs 34(2)(a)(iv) of the CAA). The plaintiff claimed that the tribunal declined to give it an oral hearing which it claimed it was entitled to require, and that it was not given a reasonable opportunity of presenting its case (in this regard, it did not formally rely upon subs 34(2)(a)(ii) of the Act). In the substantive dispute the subject of arbitration, the defendant (as claimant) claimed the plaintiff had failed to deliver approximately 3,500 metric tonnes of wheat to the defendant’s place for delivery in accordance with the contract. The plaintiff (as respondent) claimed the parties agreed a variation of the contract which enabled the plaintiff to deliver the wheat to another place, which it did. The defendant commenced arbitration proceedings under the Grade Trade Australia Dispute Resolution Rules (GTA Rules) in accordance with the dispute resolution procedure in the contract. The plaintiff, however, refused to participate in the arbitration, claiming among other things the arbitrators had no jurisdiction to hear and determine the dispute. The arbitrators issued an interim award in favour of the defendant (claimant), finding that there had been no variation to the contract. The arbitrators asked the parties to address the tribunal on the calculation of damages. Following the partial award, the plaintiff (respondent) sought to participate in the arbitration and requested an oral hearing on the issue of quantum. Despite the protestations of the defendant (claimant), the arbitrators permitted both parties to be heard on the issue of quantum by submissions and further evidence. The tribunal left open the possibility of an oral hearing. The plaintiff (respondent) proceeded to file submissions and evidence which went beyond the question of

quantum, and sought to challenge the findings of the tribunal in the interim award. The tribunal issued a final award in favour of the defendant (claimant), noting that the plaintiff’s submissions did not deal with the discrete issues of quantum which remained for consideration by the tribunal. The plaintiff applied to set aside the final award under subs 34(2)(a)(iv). The plaintiff argued that because the parties had not agreed to exclude oral hearings under the GTA Rules, the tribunal was obliged to hold oral hearings if requested, and in the absence of an oral hearing on quantum the arbitration was not in accordance with the agreement of the parties or the Act. The Plaintiff also argued that it was not given a reasonable opportunity to present its case. Hammerschlag J refused to exercise the Court’s discretion to set aside the final award under subs 34(2)(a)(iv). His Honour held the plaintiff was given an opportunity from the outset to present its case in full and to participate in the arbitration. His Honour held the plaintiff had eschewed an oral hearing on all issues (liability and damages) by declining to participate in the proceedings up to and including the partial award. Significantly, the court considered that the standard to be applied for the court to exercise its discretion and intervene under subs 34(2)(a)(iv) is no different from that to be applied under subs 34(2)(a)(ii). In this regard, Hammerschlag J followed the approach of the Hong Kong Court of Appeal in Pacific China Holdings Ltd (in liq) [page 196] v Grand Pacific Holdings Ltd [2012] HKCA 200; [2012] 4 HKLRD 1 (referred to above), and held that the plaintiff has the burden of showing that any departure from any requirement under the Act, or in the parties’ agreement, caused it prejudice. This is an important decision which has endorsed the reasoning of the Hong Kong Court of Appeal. [s 34.60] Subsection 34(2)(b) Under this subsection proof is needed of one of two matters. First, that the subject matter of the dispute is not capable of settlement by arbitration under the law of the state or territory in which the appeal against the award is made. This raises the question whether the dispute is arbitrable or capable of resolution by arbitration. The other alternative is if the award is in conflict with the public policy of the state or territory in which the award was made. “Public policy” is concerned with the interests of the community in general. It involves identifying a definite

and governing principle which the community as a whole has already adopted, either formally by law or tacitly by its general course of public life: see Wilkinson v Osborne (1915) 21 CLR 89; 22 ALR 57 and see Concise Australian Legal Dictionary, 4th ed, LexisNexis, 2011. However, caution should be exercised when raising issues of public policy as they are notoriously difficult to define or articulate. Examples include illegality; contrary to the public good or welfare; enforcement contrary to the interests of a reasonable member of the public; breach of the rules of natural justice; and corruption on the part of the arbitrator: see Deutsch Schachtbau-ud Tiefbohrgellschaft mbh v Ras Al Khaimah National Oil Company [1990] 1 AC 295. In the context of an application to set aside an international arbitral award under the International Arbitration Act 1974 (Cth), Pagone J in Emerald Grain Australia Pty Ltd v Agrocorp International Pte Ltd [2014] FCA 414; BC201403065 dismissed an application to set aside the award on public policy grounds and helpfully clarifying the thresholds that must be met by a party. In 2012, the applicant (Emerald Grain) and the respondent (Agrocorp) entered into a contract for the sale and the delivery of Australian canola in Bangladesh. Difficulties arose in the performance of the contract with respect to the quantity of the canola to be loaded and also with respect to delays in delivery. Agrocorp commenced a claim in accordance with the international arbitration clause in the contract and the IAA, claiming damages as a result of Emerald Grain’s breach of contract. Emerald Grain responded by cross-claiming for breach of contract and, alternatively, in negligence. The Tribunal ultimately rendered an award substantially in favour of Agrocorp (Award). Emerald Grain then applied to the Federal Court seeking to set aside the Award and relying on Art 34(2)(b)(ii) of the UNCITRAL Model Law. Emerald Grain contended that there had been a breach of the rules of natural justice in the making of the Award on the basis that (i) there was no probative evidence before the Tribunal to permit it to make certain findings; and (ii) the Tribunal made findings based on its own opinions and ideas without giving Emerald Grain adequate notice. These grounds were referred to as being the “no evidence claim” and the “no hearing claim”. In considering r 8.05(1)(b) and (2) of the Federal Court Rules 2011 (Cth), Pagone J said that it is essential that an affidavit supporting an application precisely and carefully articulates any grounds to be relied upon (at [7]). Thus, in any application to set aside an award on public policy grounds, the grounds stated must set out the matters which disclose as to how the award is in conflict with the public policy, and that it is insufficient to use sweeping statements that (at [7]) “there has been an error . . . or that “the

award is in conflict with the public policy” of Australia or that the award was in conflict with or contrary to the public policy of Australia by a breach of the rules of natural justice. . .” Rather, as his Honour said (at [12]), “[i]t is for the applicant to establish the rule said to be breached in any given case was a rule which applied to the case. The applicant must then also establish how the breach materially bore upon the adverse decision.” Emerald Grain had attempted to make submissions on grounds that had not been set out in the relevant supporting affidavit, but which it claimed had been referenced to in the affidavit by the use of the expression “among other things”. The applicant argued that as Art 34(2)(b) of the Model Law was prefaced by the words “if . . . the court finds”, it was open for the court to take a more liberal approach than that taken by Pagone J. His Honour dismissed that argument, noting that the words (ie “if . . . the court finds”) had been included to empower the court to set aside awards [page 197] where a party may have failed to raise an objection and the award offended public policy, and in part to protect the integrity of the judicial system. However, the words did not impose upon the court “an obligation to embark upon its own inquiry into matters which were not properly, or sufficiently, raised by an applicant in adversarial proceedings; nor do the words enlarge a claim made by an applicant to include matters that were not properly, or sufficiently, relied upon as grounds to set aside an award” (at [9]). Accordingly, his Honour concluded that any grounds in the written submissions which went beyond those set out in the affidavit supporting Emerald Grain’s application were to be ignored. In Hebei Jikai Industrial Group Co Ltd v Martin [2015] FCA 228; BC201501541, Wigney J was asked to consider the application of Pagone J’s judgment in Emerald Grain. In this case, the plaintiff had filed an originating application which failed to specify the grounds upon which it sought to rely in challenging an international arbitration award. The supporting affidavit did no more than provide a chronology of the relevant circumstances of the case. The plaintiff was then asked to file points of claim, which then made reference to Art 34 of the Model Law, which was found to be deficiently articulated (at [65]). Despite the shortcomings of the plaintiff’s filed materials, Wigney J did not find the circumstances were appropriate to shut the plaintiff out from making its

application as the plaintiff’s supporting affidavit and points of claim, when read together, satisfactorily “raised” the grounds which it relied (at [66]–[68]). It could be said that his Honour took a lenient approach, though this case and Emerald Grain demonstrate the need to be precise and clear when drafting an application seeking to challenging an award. [s 34.63] Case Study: TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83 The recent Full Federal Court decision in TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 311 ALR 387; [2014] FCAFC 83; BC201405606 provides important jurisprudence in relation to the circumstances in which an award may be contrary to public policy. While this decision was decided by reference to Arts 34 and 36 of the UNCITRAL Model Law and the International Arbitration Act 1974 (Cth), this decision has important implications to the proper interpretation of ss 34 and 36 of the domestic Commercial Arbitration Acts. Before turning to consider the Full Federal Court’s decision, it is noteworthy to briefly note the protracted history of the litigation between these parties. TCL Air Conditioner (Zhongshan) Co Ltd (TCL), a Chinese company, entered into an exclusive distribution agreement with Castel Electronics Pty Ltd (Castel), an Australian company. Under the distribution agreement, TCL appointed Castel as the exclusive distributor of its air conditioner systems in Australia. A dispute arose after TCL began selling non-TCL branded air conditioners in Australia. The distribution agreement contained an arbitration agreement and the dispute was submitted to arbitration. Following the arbitration hearing, the arbitrators made a final award in favour of Castel in the amount of approximately $3.5 million. TCL sought to resist the enforcement of the award in the Federal Court of Australia. In doing so, it claimed that the Federal Court lacked jurisdiction to enforce international arbitration awards in Australia. The claim was rejected by the Federal Court (in Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd [2012] FCA 21; 287 ALR 297; BC201200146). TCL subsequently applied to the High Court of Australia (relying on constitutional grounds and the High Court’s original jurisdiction) to prohibit the Federal Court from hearing the matter on the basis certain amendments to the IAA were constitutionally invalid. The High Court rejected TCL’s application and held the Federal Court had jurisdiction to hear and determine the application to enforce the international arbitral award under the provisions of the International Arbitration Act 1974 (Cth) (in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) 295 ALR 596; [2013] HCA 5; BC201301035). The decision was widely viewed to be a strong decision in

favour of arbitration in Australia. Following the High Court’s decision, the Federal Court of Australia heard and determined TCL’s application to set aside the arbitral award under Art 34 of the Model Law, and to resist enforcement of the award under Art 36 of the Model Law (in Castel Electronics Pty Ltd v TCL Air [page 198] Conditioner (Zhongshan) Co Ltd (No 2) [2012] FCA 1214; BC201208661). Murphy J held there was no basis to set aside or resist enforcement of the award for the alleged breach of natural justice and dismissed the application. TCL appealed the decision to the Full Court of the Federal Court of Australia (Allsop CJ, Middleton and Foster JJ). TCL argued that Murphy J erred by failing to find the arbitrators had not accorded procedural fairness to TCL such that there had been a breach of the rules of natural justice in connection with the making of the award, and that this was in conflict with, or contrary to, the public policy of Australia. TCL relied on Arts 34 and 36 of the Model Law, and ss 16 and 19 of the International Arbitration Act 1974 (Cth). In support of the proposition TC was not afforded procedural fairness which gave rise to a failure of the arbitrators to accord natural justice, TCL argued (in summary): there was no probative evidence for three critical factual findings made by the arbitrators (which related to the quantification of damages); and the arbitrators could not reasonably make findings as to loss other than in accordance with TCL’s expert evidence (in circumstances where the arbitrators had accepted that Castel’s expert witness lacked relevant expertise). The Full Court held that “the essence of natural justice is fairness — it is its root as a legal conception and it lies at the heart of its operation” (at [108]). In the international commercial arbitration context, the Full Court explained the role of natural justice in the following passage: [109] . . . The Model Law and the IAA embody a framework of law for the regulation of arbitration. The avowed intent of both is to facilitate the use and efficacy of international commercial arbitrations. Basal to the working of the New York Convention, Art V of the Model Law, Arts 34 and 36 was the absence of any ground of the review or setting aside or denial of recognition or enforcement of awards because of errors by the arbitrator in factual

findings or in the application of legal principle (as viewed by national courts). The system enshrined in the Model Law was designed to place independence, autonomy and authority into the hands of arbitrators, through a recognition of the autonomy, independence and free will of the contracting parties. The a national independence of the international arbitral legal order thus created required at least two things from national court systems for its efficacy: first, a recognition that interference by national courts, beyond the matters identified in the Model Law as grounds for setting aside or non-enforcement and recognition of contracts and awards. The appropriate balance between swift enforcement and legitimate testing of grounds under Arts 34 and 36 is critical to maintain; essential to it is courts acting prudently, sparingly and responsibly, but decisively when grounds under Arts 34 and 36 are revealed. An important part of that balance is the protection by courts of the fundamental norms of fairness and equality embodied in the rules of natural justice within the concept of public policy. [110] This balance is reflected in international and Australian policy does not carry with it any necessary implied criticism of national courts. Parties in international commerce may choose arbitral dispute resolution for many reasons: Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 at 95–96; 238 ALR 457; [2006] FCAFC 192; BC200610833 at [192]–[193]; that chosen international legal order depends crucially upon reliable curial enforcement and a respect by courts for the choice and autonomy of the parties for the delicate balance of the system. A demand for fairness and equality is at the heart of the supervisory balance, as is a recognition that this is not reflected in mechanical technical local rules. . . The Full Court went on to explain the test that applies to cases where a party claims an award should be set aside or denied enforcement on the grounds of a denial of natural justice: [110] . . . The real question is whether an international commercial party has been treated unfairly or has suffered real practical injustice in the dispute and litigation context in which it [page 199] finds itself. Formalism in the application of the so-called rules is not the essence of the matter: fairness and quality are. How unfairness is revealed or

demonstrated in any particular case will depend on the circumstances. . . [111] The above leads one to the conclusion that Arts 34 and 36 should be seen as requiring the demonstration of real practical injustice or real unfairness in the conduct of the reference or in the making of the award. The rules of natural justice are part of Australian public policy. The assessment as to whether those rules have been breached by reference to established principle is not a matter of formal application of rules disembodied from context, or taken from another statutory or human context. The relevant context is international commercial arbitration . . . It suffices to say that no international award should be set aside unless, by reference to accepted principles of natural justice, real unfairness and real practical injustice has been shown to have been suffered by an international commercial party in the conduct and disposition of a dispute in an award. It is likely that real prejudice, actual or potential, would be a consideration in the evaluation of any unfairness or practical injustice. Importantly, the Full Court explained that in most, if not all, cases a party who says that is has suffered such unfairness or practical injustice should be able to demonstrate that without the kind of detailed examination of the facts that occurred in the case. It went on to say unfairness or practical injustice in this context should, if it exists, be able to be expressed and demonstrated shortly (at [113]). Importantly, the Full Court explained that unfairness and practical injustice will not be established where a party undertakes a detailed factual analysis of evidence and asserts conclusions of facts different to those reached by the arbitrator. The Court explained earlier in its reasons that if this were permitted: [54] . . . there is a grave danger that the international commercial arbitral system will be undermined by judicial review in which the factual findings of a tribunal are re-agitated and gone over in the name of natural justice, in circumstances where the hearing or reference has been conducted regularly and fairly. That danger is acute if natural justice is reduced in its application to black-letter rules, if a mindset appears that these rules can be “broken” in a minor and technical way and if the distinction between factual evaluation of available evidence and a complete absence of supporting material is blurred. . . The Full Court dismissed TCL’s appeal against the decision refusing to set aside and refuse enforcement of the arbitral award in favour of Castel. The Full Court considered that TCL had been given a “scrupulously fair” hearing, and

considered that its complaints were wrapped up in the form of allegations of breach of the rules of natural justice. While the decision of the Full Court is made in the context of international commercial arbitration, the reasoning of the Full Court and the clarification of the relevant test has important application for cases involving ss 34 and 36 of the domestic commercial arbitration legislation. Sections 34 and 36 of the commercial arbitration acts are modelled on Arts 34 and 36 of the Model Law. Having regard to the important need for consistency in the interpretation of international and domestic commercial arbitration legislation that is based on the text of the Model Law, the authors submit that state courts applying these provisions should exercise its discretion to set aside or refuse enforcement of an arbitral award only where real unfairness and real practical injustice can be expressed and demonstrated shortly. [s 34.65] Arbitrability Arbitrability has been described as “where the contractual and jurisdictional natures of international commercial arbitration meet head on” and “involves the simple question of what types of issues can and cannot be submitted to arbitration”: J Lew, L Mistelis and S Kroll, Comparative International Commercial Arbitration, Kluwer Law International, 2003 at [9-1]. “Arbitrability” depends on various factors, including specific mandatory laws as well as any relevant common law. Consequently it is understandable there is no specific guidance under the [page 200] Act as to the types of subject matters which cannot be arbitrated. It follows that when this particular ground of challenge is considered, no general limitation or prescription ought to be imposed; rather, the issue of arbitrability should be given a fluid and flexible treatment. Indeed, it has been observed by N Blackaby, C Partasides, A Redfern and M Hunter, Redfern and Hunter on International Commercial Arbitration, 5th ed, Oxford University Press, 2009, at [2.114]–[2.116] that: National laws establish the domain of arbitration, as opposed to that of the local courts. Each State decides which matters may or may not be resolved by arbitration in accordance with its own political, social, and economic policy. Nevertheless, it may be said with some confidence that certain matters are

more likely to be outside the realm of arbitration. These include citizenship, marriage, intellectual property rights, competition, taxation, workplace disputes, illegality and fraud, and possibly trade practices and consumer protection. In Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd (2011) 279 ALR 772; [2011] NSWSC 268, Hammerschlag J of the NSW Supreme Court acknowledged that some disputes are not susceptible to arbitration, at [62]–[65]: [62] Generally, any dispute or claim which can be the subject of an enforceable award is capable of being settled by arbitration. [63] There are, however, some exceptions. Some disputes are not susceptible to resolution by private arbitration because they are in the exclusive domain of a national court or other tribunal. It has been said that a common element to the notion of arbitrability is the presence of a sufficient element of legitimate public interest in the subject matter of the dispute to make its private resolution outside the national court system inappropriate: see Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; 238 ALR 457; [2006] FCAFC 192 at [200]. The types of remedies which an arbitrator can award are limited by considerations of public policy (which may be reflected in legislative enactments which deal with the area of controversy) and by the fact that he is appointed by the parties and not by the state; see Metrocall Inc (Successor by Merger to Pronet Inc) v Electronic Tracking Systems Pty Ltd (2000) 52 NSWLR 1 at 21 and following, and more recently Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd (2011) 80 NSWLR 398; 279 ALR 759; [2011] NSWSC 195 at [36], [45]; M Mustill and S Boyd, Law and Practice of Commercial Arbitration in England, 2nd ed, 1989, ch 10. [64] Non-arbitrable matters include criminal prosecutions, determination of status such as bankruptcy, divorce, and the winding up of corporations in insolvency, and certain types of dispute concerning intellectual property such as whether or not a patent or trade mark should be granted. These matters are plainly for the public authorities of the state. Patents and trade marks are monopoly rights that only the state can grant; Blackaby et al, Redfern and Hunter on International Arbitration, 5th ed, 2009, at 2.118. [65] The modern trend both domestically and internationally is to facilitate and promote the use of arbitration and to minimise judicial intervention in the process; see Gordian Runoff Ltd v Westport Insurance Corp (2010) 267 ALR 74; [2010] NSWCA 57 at [105] and following. In

Desputeaux v Editions Chouette (1987) Inc 2003 SCC 17; [2003] 1 SCR 178 at [38] (Desputeaux), the Supreme court of Canada, in determining that a copyright dispute was arbitrable, referred to this trend particularly in modern Western legal systems. The trend was acknowledged by the Court of Appeal in Singapore in Tjong Very Sumito v Antig Investments Pte Lte [2009] 4 SLR(R) 732 at [28] and following. See too Born, International Commercial Arbitration, 2009, p 806. In Larkden, above, His Honour concluded that a dispute between parties with respect to a patent’s application was arbitrable Arbitrability with respect to disputes with an insolvent company is also an issue. In A Best Floor Sanding Pty Ltd v Skyer Australia Pty Ltd [1999] VSC 170, Warren J (as her Honour then was) [page 201] found an arbitration clause null and void as being at odds with provisions of the mandatory law — though not a law with respect to arbitration. The clause permitted the parties to arbitrate disputes “touching”, amongst other things, the dissolution or winding up of their joint venture vehicle. Her Honour found as follows, at [18]: [18] The application by AB Floor to stay the winding up application strikes at the very heart of the corporation structure enshrined in the Corporations Law. The arbitration clause in the joint venture agreement is null and void insofar as it purports to subject the parties to an arbitration with respect to the dissolution or winding up of the company. The provision is null and void because it has the effect of obviating the statutory regime for the winding up of a company. More so, the arbitration clause, if adhered to, would frustrate the contributory, Skyer Australia in its efforts to seek relief from the court under the winding up provisions of the Law. In essence, the arbitration clause in the joint venture agreement is contrary to the provisions of the Corporations Law and cannot be applied. The issue of the arbitrability of the dispute also arose in Rinehart v Welker [2012] NSWCA 95 where Bathurst CJ and McColl JA (Young JA dissenting) held the claim to remove Mrs Rinehart (GHR) as trustee, was capable of settlement by arbitration (see [s 7.30] above for a summary of the facts of the case). In the absence of authority on this issue the court looked at the leading

texts and leading cases for guidance. In the context of international commercial arbitration Allsop J (as His Honour then was) stated in Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; 238 ALR 457 at [200]: . . .First, the common element to the notion of non-arbritrability was that there was a sufficient element of legitimate public interest in these subject matters is making the enforceable private resolution of disputes concerning them outside the national court system inappropriate. Secondly, the identification and control of these subjects was legitimate domain of national legislatures and courts. Thirdly, in none of the travaux préparatoires was there discussion that the notion of a matter not being capable of settlement by arbitration was to be understood by reference to whether an otherwise arbitrable type of dispute or claim will be ventilated fully in the arbitral forum applying the laws chosen by the parties to govern the dispute in the same way and to the same extent as it would be ventilated in a national court applying national laws. The approached outline suggested that it is only in extremely limited circumstances that the dispute which parties have agreed to refer to arbitration will it be held to be non-arbitrable. This view was supported by the comments of Mason J (as his Honour then was) in Government Insurance Office (NSW) v Atkinson-Leighton Joint Venture (1981) 146 CLR 206 at 246–7; and see also Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160. It was against this background that the issue to be decided was whether a claim to remove a trustee is capable of settlement by arbitration. A trust is a creature of equity and the courts maintain an inherent supervisory jurisdiction over the administration of trusts: McLean v Burns Philp Trustee Co Ltd (1985) 2 NSWLR 623 at 637. In Rinehart v Welker [2012] NSWCA 95, the NSW Court of Appeal expressed the view, at [52], that the proper conduct of trustees was a matter which required close public scrutiny. Bathurst CJ stated, at [175]: . . . at least in circumstances where the trustee and each beneficiary has expressly agreed to their dispute being referred to arbitration, a court should give effect to that agreement. The supervisory jurisdiction of the court is not ousted. It continues to have the supervisory role conferred on it by the relevant legislation, in this case the Commercial Arbitration Act. There may be powerful commercial or domestic reasons for parties to have dispute between a trustee and beneficiaries settled privately. It does not seem to me that the

matters to which I have referred above should preclude the court from giving effect to such an agreement provided the jurisdiction of the court is not ousted entirely. [page 202] In these circumstances Bathurst CJ held that it was not contrary to public policy for the beneficiaries under the trust and the trustee to agree to resolve their disputes by arbitration, provided the supervisory jurisdiction of the court contained in the relevant legislation is maintained. Bathurst CJ concluded, at [183], that if the parties had in fact agreed that the claim for removal of GHR as trustee should be submitted to arbitration such a dispute would be arbitrable. The question remained as a matter of discretion the present proceeding should be stayed in circumstances where the respondents’ claim was not covered by the arbitration clause but particular defences raised by the appellants fall within the scope of that clause. McColl JA agreed with Bathurst CJ that the dispute was arbitrable. McColl JA in Rinehart, above, said, at [216], that she accepted the force of Young JA’s observations about the potential difficulties of enforcing an arbitrator’s award. However, compelling as they were, her Honour said that they did not militate against conclusion that the respondent’s claims, if within cl 20, would be arbitrable: see Fulham Football Club (1987) Ltd v Richards [2012] 1 All ER 414 at [84]. In his dissent on this issue Young JA said that he differed from the Chief Justice as he considered that the difficulties in a court enforcing any decision of an arbitrator are so great (or could be so great if a party was uncooperative) that the opposite view was preferable. While a court could make orders authorising a registrar to sign transfers on behalf of the former trustee and direct the Registrar General to register them, removal and replacement of trustees usually involves the taking of accounts and an in personam order against the former trustee, which if he or she disobey it leads to imprisonment. Young JA said, at [226], that it would be stretching things to contemplate that an order for imprisonment would be an appropriate enforcement procedure to perfect an arbitrator’s award. Young JA said, at [227], that if his view on arbitrability was erroneous it would be a rare case where discretion would be exercised in favour of permitting the arbitration to proceed. As a further comment, in certain circumstances, a subject matter may be non-

abritrable where jurisdiction was conferred on a specialist tribunal: see Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd (2011) 80 NSWLR 398; 279 ALR 759 at [38] per Ball J referring to Metrocall Inc v Electronic Tracking Systems Pty Ltd (2000) 52 NSWLR. Indeed, interesting questions arise where legislation renders void and arbitration agreement in a document (such as a retail lease) and provides exclusive jurisdiction to a particular forum (VCAT in the case of retail leases in Victoria). In a sense, this means that such issues are not arbitrable, but as a matter of statutory machinery, the effect of the RLA in relation to arbitration of retail leases is to render the arbitration agreement void and so there is nothing for the Act to act upon and therefore no argument about arbitrability. [s 34.70] Public policy Public policy, as a concept, is often somewhat nebulous. A review of international cases indicates that what constitutes “public policy” varies significantly from one country state to another. It is very much a notion in the eye of the beholder — with some obvious exceptions, at least at a general level. For a discussion of differing concepts of state public policy, see N Blackaby, C Partasides, A Redfern and M Hunter, Redfern and Hunter on International Arbitration, 5th ed, Oxford University Press, 2009, at [10.80]– [10.86]; see also G Born, International Commercial Arbitration, Kluwer Law International, 2009, pp 2620–33. On a general level, it has been said that the concept of public policy would consist of the following (Anil Bhatnagar, “Public Policy and the Enforcement of International Arbitral Awards”, a paper presented at the UNCITRAL—SIAC Conference held 22–23 September 2005, Singapore (Celebrating Success: 20 Years UNCITRAL Model Law on International Commercial Arbitration): A review of the judicial decisions shows that the courts of many countries apply a restrictive concept of “international public policy”, which they broadly describe as something which: (1) (2)

is contrary to basic notions of morality and justice; offends some moral, social or economic principle so sacrosanct as to require its maintenance at all costs and without exception; [page 203]

(3)

would be injurious to the public or against public good;

(4) (5)

would be contrary to the fundamental policy of the country; would be against the interest of the country.

Within these broad concepts, judicial decisions identify some norms, the violation of which is considered as contrary to the “public policy” of the country. Generally, these norms are: (1) (2) (3) (4) (5) (6)

the fundamental principles of law of the country; principles of justice and morality; political, social and economic interest of the country; national interest; foreign relations; and prohibitions of certain activities like smuggling, drug trafficking, terrorism, slavery, etc. In the context of international arbitration, and factoring in the pro-arbitration and the mutual respect for the recognition of foreign laws, only awards that are contrary to the fundamental notions of morality and justice will be set aside. For discussion of public policy in the context of international arbitral awards see Uganda Telecom Limited v Hi-Tech Telecom Pty Ltd [2011] FCA 131; and Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) (2012) 201 FCR 535; 291 ALR 99; [2012] FCA 276. It should also be noted that the IAA introduced s 8(7A) seeking to clarify, but not limit, what could be considered as contravening public policy. The provision provides that (a) the making of an award induced by fraud or corruption or (b) a breach of the rules of natural justice which occurred in connection with the making of an award, would be contrary to public policy. Although domestic arbitration is not under the same constraint as those imposed on international arbitration — both from a legislative and philosophical perspective — the same approach ought to be taken in narrowly interpreting the provision when there is a challenge to an award on the grounds of public policy. A wide expansion of the ground of public policy could well lead to a slow erosion of the confidence in the finality of arbitral awards as a result of the intrusion of unpredictable subjective considerations. This could not have been intended by the legislature. This particular approach has been emphasized in the context of international arbitration by Pagone J in Emerald Grain Australia Pty Ltd v Agrocorp International Pte Ltd [2014] FCA 414; BC201403065 (see above at [s 34.60]). The applicant in this proceeding had sought to set aside an international arbitral award on the basis that there had been a breach of the rules of natural justice in

the making of the Award on the basis that (i) there was no probative evidence before the Tribunal to permit it to make certain findings (the “no evidence” ground); and (ii) the Tribunal made findings based on its own opinions and ideas without giving Emerald Grain adequate notice (the “no hearing” ground). Pagone J took a broad approach in seeking to ascribe the circumstances when there may be a breach of “public policy” in the context of the IAA and the Model Law. His Honour noted that parties to an international arbitration are entitled to expect the relevant provisions in the Model Law “will be construed and applied with some uniformity in the convention countries” (at [13]). Referring to decisions of the courts in New Zealand, Singapore and Hong Kong, it was also remarked that there is a general reluctance to set aside an award on public policy grounds unless the fundamental notions of justice and fairness have been offended (at [13]). His Honour concluded his thoughts on this point with an important statement (at [13]): . . . it was said [in a Singaporean case] that an arbitral award should be read generously such that only meaningful breaches of the rules of natural justice that have actually caused prejudice are ultimately remedied . . . That does not mean that a tribunal can decide an arbitration in breach of the “no evidence” or the hearing rule, but that whether there has been a breach depends upon the content of the rule in any given case and that its content in the case of an international arbitration governed by the [Act] and the Model Law will be influenced by how [page 204] the relevant provisions have been understood and applied in the courts of the convention countries, if only as an indication of what the parties to an international arbitration understood or expected. Although on their face these comments seem to be inconsistent with the wording in Art 34(2)(b) that “the award is in conflict with the public policy of this State” (emphasis added) (in the sense that words, on their literal reading, only require the court to consider the public policy of Australia only), the approach set out by his Honour merely requires a court to give consideration to the approaches of the courts in other convention countries so that there is some level of uniformity in interpreting the Model Law — and to avoid idiosyncrasies and inconsistencies between decisions of courts in convention countries and that

of the Australian courts, which has been an issue in the past. A similar approach should also be adopted with respect to the Uniform CAA. With respect to the “no evidence” ground, Pagone J, in referring to the authorities, acknowledged that there are difficulties distinguishing between a permissible error of fact and decision that was based upon no probative evidence. Nevertheless, it remains an essential distinction for courts to maintain (at [11]). His Honour explained that (at [15]): The task for the Court . . . is to determine whether the facts found (presuming them even to be wrong) had no foundation on the (probative) evidence before the Tribunal or from permissible inferences from that evidence. The Court’s role in cases of this kind, consistently with the objectives of the Act (including in that the facilitation of those objectives by preferring uniformity of decisions amongst the courts in the countries where the Model Law applies), is to ensure that the facts found were open to the Tribunal upon the material that was before it rather than determining that the facts were found correctly. What will amount to probative evidence must, of course, vary with the circumstances. His Honour then noted that in assessing the “no evidence” argument, the court needed to take into account that an award is not to be read in the same way as a reasoned decision of the court of law. In accordance with the High Court decision of Westport Insurance Corp v Gordian Runoff Ltd (2011) 244 CLR 239; 281 ALR 593; [2011] HCA 37; BC201107579 an arbitral award is not required to analyse every argument and for every fact to be identified with reference to supporting evidence (at [16]). His Honour concluded that (at [16]): The party seeking to challenge an award on the no (probative) evidence ground must, therefore, focus precisely upon the absence of (probative) evidence as distinct from error in the findings that were made upon the evidence. The court must be satisfied that the facts challenged lacked evidenced upon which they could be made rather than that the facts were wrongly decided. Upon examining the materials before him, it was concluded that the Tribunal had made all findings based upon probative evidence. In relation to the “no hearing” ground, Pagone J explained (at at [46], referring to Trustees of Rotoaira Forest Trust v Attorney-General [1999] 2 NZLR 452) that for an applicant to establish a breach of the hearing rule, it must “demonstrate that it, as a reasonable litigant, would not have foreseen the possibility of the Tribunals reasoning” and “must also show that ‘it might have

been possible to persuade’ the Tribunal otherwise if the Tribunal had given adequate notice.” His Honour concluded (at [46]) that the evidence put forth by Emerald Grain fell short of that requirement, and that while “[t]hey may have been surprised that their submissions were not accepted . . . there was no foundation to conclude that the findings ‘would not have been foreseen’ by a reasonable litigant nor that Emerald Grain might have submitted something else if they had received notice.” For a general discussion with respect to fraud under this provision see J Sher and N Kazaz, “Recourse Against Arbitral Awards and Public Policy Considerations: An Anglos-Australian Perspective” (2014) 80 Arbitration 124. [page 205] [Case Study: Giedo van der Garde BV v Sauber Motorsport AG [2015] VSC 80] In Giedo van der Garde BV v Sauber Motorsport AG (2015) 317 ALR 792; [2015] VSC 80; BC201501291, the Supreme Court of Victoria heard and determined an urgent application concerning the right of a driver to race in the 2015 Formula One season, and by extension, the right of the driver to race in the opening round at Albert Park. Van der Garde, and the company set up to manage his interests as a race driver, Giedo van der Garde BV (the Applicants), sought enforcement of an arbitral award made on 2 March 2015 in a Swiss court, which ordered the Sauber Formula One team to refrain from taking any steps that would prevent him from racing for Sauber in the 2015 season. While the application was brought under the International Arbitration Act 1974 (Cth), the relevant principles apply to Australia’s domestic Commercial Arbitration Acts. Background In January 2014, van der Garde and his company entered into agreements with Sauber whereby the team agreed to nominate him as a test and first reserve driver for the 2014 Season, and upon exercise of a contractual option, as one of its two nominated race drivers in the 2015 Season. In June 2014, Sauber exercised the option in question, confirming van der Garde as one of its two drivers for the 2015 Season. However, in November 2014, Sauber informed him that the two positions had been given to other drivers and he would be without a drive in 2015. The relevant arbitration agreement provided that any disputes were to be

settled by a single arbitrator in accordance with the International Arbitration Rules of the Geneva Chamber of Commerce, being the Swiss Rules of International Arbitration, published by the Swiss Chambers’ Arbitration Institution. The arbitral seat was Geneva, Switzerland, the governing law was that of England, and the language of the arbitration was to be English. The arbitral proceedings Van der Garde promptly made an application for emergency relief proceedings under Article 43(1) of the Swiss Rules within days of being notified of the team’s new arrangements. As part of these proceedings, van der Garde sought interim injunctive relief to restrain Sauber from taking any action, the effect of which would be to deprive him of an opportunity to participate in the 2015 Season, pending final determination at arbitration in February. The interim injunction was granted. The parties then agreed to an accelerated timetable for the hearing of van der Garde’s claim for permanent injunctive relief, which resulted in the arbitrator publishing his Final Partial Award on 2 March 2015. The critical dispositive provision of the Award had the effect of granting the relief sought, ordering Sauber to: . . . refrain from taking any action the effect of which would be to deprive . . . van der Garde of his entitlement to participate in the 2015 Formula One Season as one of Sauber’s two nominated race drivers. The enforcement proceedings Two days after the rendering of the Award, and prior to the opening round of the 2015 Formula One season at Albert Park in Melbourne, van der Garde sought to enforce the arbitral award in the Supreme Court of Victoria. Van der Garde made an ex parte application to the court to obtain orders permitting substituted service of the application for enforcement on Sauber (a Swiss Company with its registered business address in Switzerland). Orders were made permitting service on Sauber at the offices of the Australian Grand Prix Corporation, by fax and email to Sauber, and to Sauber’s representatives in the arbitration proceeding by email. At the enforcement application, leave was granted to the two other drivers selected and nominated by Sauber for entry in the 2015 Season to be represented and heard at the enforcement application. Neither driver was a party to the relevant arbitration agreement, and were not

[page 206] represented or heard in the course of any aspect of the arbitral proceedings. Leave was granted given the drivers’ interest in the enforcement application and the lack of prejudice to van der Garde and his company (which was conceded). It was common ground between the parties that the threshold requirements of s 8 of the International Arbitration Act 1974 (Cth) had been satisfied — namely that the party seeking enforcement produce to the court duly certified copies of the original award and the arbitration agreement. Sauber sought to resist enforcement under s 8(7) of the IAA on grounds that it would be contrary to the public policy of Australia (the equivalent of s 34(2)(b) of the domestic Act). Sauber relied on the following four principal and alternative arguments to support this proposition: a) that enforcement would be futile because, regardless of the Court’s decision, there was no chance of van der Garde being able to drive in the Australian Grand Prix. In this regard, Sauber cited the need for extensive technical modifications to the race car if van der Garde were to be reinstated, and his lack of a Super License (being the license required by all Formula One drivers). b) that enforcement would compel Sauber to breach the Crimes Act 1958 (Vic) by engaging in conduct that may endanger lives and/or place spectators and others at risk of serious injury, essentially because of van der Garde’s lack of practice in the new race car and general lack of preparation with the team. c) that the critical dispositive provision sought to be enforced was vague and uncertain, such that Sauber would be unable to ascertain what it must refrain from doing in order to comply with any order; and d) that the failure to give the Other Drivers an opportunity to be heard during the arbitral proceedings constituted a breach of the rules of natural justice in connection with the making of the Award. Sauber also argued that the Award dealt with matters beyond the scope of the submission to arbitration and therefore should not be enforced (s 8(5)(d) of the IAA, being the equivalent to s 34(2)(a)(iii) of the domestic Act). This submission was based on an argument that the Arbitrator wrongly proceeded on the basis that van der Garde had a personal contractual right enforceable against

Sauber in circumstances where, it was argued, it was van der Garde’s company, not him personally, who had entered the relevant agreements with Sauber. Finally, the other drivers argued under the International Arbitration Act (IIA) that, having regard to the claimed serious prejudice to their respective positions that enforcement would entail (namely the fact that one of them would be required to make way for van der Garde), the matter was not capable of settlement by arbitration. The Supreme Court of Victoria held that there were no grounds to refuse recognition and enforcement of the award, and made orders giving effect to the critical dispositive provision of the Award, namely the prohibitive injunction restraining Sauber from taking any action that would deny van der Garde of his place in the team for the 2015 Season. In his Honour’s judgement, Croft J rejected all of the arguments advanced by Sauber and the other drivers against enforcement of the arbitral award. In respect of the arguments advanced by Sauber, Croft J held, in summary: 1. The submission of this matter to arbitration was made on the assumption of all parties that the relevant agreements between them were entered into in order to facilitate van der Garde’s involvement as a driver for Sauber. Therefore, the arbitrator’s findings in relation to van der Garde’s personal interest and rights in the context of the contractual arrangements between the parties were not beyond the contemplation of the parties or the scope of the submission to arbitration. 2. The subject matter of the dispute was capable of settlement by arbitration. A dispute does not lose its “arbitral quality” because a nonparty or parties to the arbitration have an interest in the outcome of the arbitration. To find otherwise would be to undermine the essence of arbitral proceedings as fundamentally contractual. Arbitral proceeding are necessarily inter partes in nature.

[page 207] 3. The critical dispositive provision of the Award, cast in negative terms, was not devoid of meaning when it is considered that it would operate inter partes in circumstances where all concerned are aware of the nature of the dispute. Thus, it was not contrary to public policy.

4. There was no breach of the rules of natural justice in respect of the noninvolvement of the other drivers in the arbitration. The court considered there cannot be a breach of natural justice every time a person who may be affected by the outcome of an arbitration (however seriously) is not invited to join the process and to make submissions. 5. In respect of the futility argument, the court noted there was a divergence between the evidence provided to the emergency arbitrator in the course of the arbitral proceedings, and the evidence relied upon in the enforcement proceedings. In this regard, the court noted that the utility of the orders sought in the arbitral proceedings was an issue which was clearly in the minds of the parties and the arbitrator. Consequently, as the issue is one that was the subject of evidence in the arbitral proceedings and consideration in the award, the court refused to venture into this area. To do so would be to enter into the merits of the Award, a step which is not permitted in an application such as this under the IAA [or the domestic Acts]. Furthermore, no authority was cited in support of the position that futility would enliven the public policy ground for resisting enforcement. 6. The negative character of the dispositive provision does not contemplate that Sauber’s compliance with the order involves it compromising safety, training, insurance or other like requirements. Shortly following the delivery of the judgement, Sauber appealed the decision of Croft J. The Court of Appeal of the Supreme Court of Victoria unanimously dismissed the appeal (after granting Sauber leave to appeal). The appeal was largely based on s 8(7) of the IAA and run on the same public policy arguments advanced before Croft J below. Sauber did not rely on s 8(5)(d) of the IAA in its appeal. In Giedo van der Garde BV v Sauber Motorsport AG (2015) 317 ALR 786; [2015] VSCA 37; BC201501425, Whelan, Beach and Ferguson JJA held that the trial judge did not err in making the orders from which Sauber seeks to appeal, and in doing so, adopted the analysis of the Full Federal Court of Australia in TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 144 ALD 471; 311 ALR 387; [2014] FCAFC 83; BC201405606. Importantly, the court of Appeal restated and emphasised that the court is not permitted to consider the merits of an arbitral award when hearing an enforcement application. The Court of Appeal held that to establish that the enforcement of an award would be contrary to public policy by reason of a

breach of natural justice, what must be shown is “real unfairness and real practical injustice”. The Court of Appeal held that Courts should not entertain a disguised attack on the factual findings or legal conclusions of an arbitrator “dressed up as a complaint about natural justice”. In respect of Sauber’s appeal on the grounds of public policy and safety concerns, the Court of Appeal confirmed that no person is required to undertake any illegal or unsafe activity in respect of complying with the order of the court below. The events is one which is highly regulated, and it is assumed the regulators of Formula One events will ensure all safety requirements are complied with. Finally, the Court of Appeal rejected the argument of the other drivers that the failure to give notice to them of the arbitral proceedings rendered the matter incapable of arbitration. In so doing, their Honours emphasised the “necessary inter partes nature” of arbitral proceedings, as had been emphasised by the trial judge below. Accordingly, their Honours reasoned that the Arbitrator had determined who the parties to the relevant contracts were, and that neither Sauber nor the other drivers had “established that it would be contrary to public policy to enforce that determination”. Contempt proceedings Immediately following the dismissal of Sauber’s appeal, and on the eve of the opening practice rounds at Albert Park, van der Garde commenced contempt of court proceedings against Sauber on the grounds it had failed to comply with the orders of the trial judge (which had been upheld by the Court of Appeal). [page 208] Van der Garde sought, among other things, a freezing order over Sauber’s assets located in Victoria, a declaration that Sauber was guilty of contempt, an order that Sauber’s CEO be punished b contempt committed by Sauber, and orders that sequestatrators be appointed with the power to take possession of Sauber’s assets. Van der Garde argued that Sauber had breached the orders of the trial judge by preparing to participate in the Australian Grand Prix without van der Garde as driver, and by refusing or declining to prepare to participate in the Australian Grand Prix with van der Garde as driver. Van der Garde relied on an email sent by Sauber the night before which asserted that the relevant contracts with him had been terminated. The contempt proceedings were adjourned to enable the representatives to

have discussions. Following those discussions, and on the resumption of the application the following morning, the parties submitted consent orders whereby van der Garder sought leave to withdraw its summons filed in the contempt proceedings and to discontinue the proceedings following successful negotiations between the parties. Application by Sauber to vacate, discharge or alternatively set aside orders by consent Following the resolution of the contempt proceeding, and the staging of the Australian Formula One Grand Prix, Sauber made an application to the Supreme Court of Victoria to vacate, or alternatively discharge or set aside the final orders of the Court (enforcing the arbitral award) by consent of van der Garde. In Giedo van der Garde BV v Sauber Motorsport AG (No 2) [2015] VSC 109; BC201501928, Croft J heard and determined the application. Sauber submitted that following the successful negotiations between the parties, settlement agreements were entered into requiring the parties to discharge certain obligations. Sauber argued that as a result of its discharge of its obligations under the relevant driver agreements and the termination of those agreements, the basis of the orders made by the court enforcing the arbitral award ceased to exist. It was accepted that the arbitral award which the orders of the court recognise and enforce remans extant and has not been the subject of proceedings or annulled by the court of the seat of the arbitration (namely Switzerland). The application was based on the inherent power of the court to discharge or suspend any order where there is a change of circumstances that renders it just and proper that further continuance of that order should be discharged. The general rule (with the exception of appeals) is that the a judgment or order, once authenticated, cannot be amended other than to correct the mistake or clerical error. However, there are three classes of exceptions — first, those which are founded on the inherent jurisdiction of the court to ensure its procedures do not effect injustice; second, those which are authorised by statute; and third, those which override the general rule in order to give relied where the judgment is obtained by fraud or by an agreement which is void or voidable (referring to Permanent Trustee Co (Canberra) Ltd (Executor estate of Andrews) v Socks & Holdings (Canberra) Pty Ltd (1976) 15 ATSR 45 at 48). Sauber submitted that having discharged its obligations, the basis for the continuation of an permanent injunction restraining Sauber from taking any action the effect of which would be to deprive van der Garde of his entitlement to participate in the 2015 Formula One season has been removed by events subsequent to the judgment and the orders. Accordingly, it submitted that the

interests of justice require the lifting of the permanent injunction so Sauber can continue the racing season with its two nominated drivers without acting in contravention of an order of the Supreme Court of Victoria. Sauber also submitted that the orders are sought by consent, and that the court may act by consent of the parties to vary or set aside a judgment. In this regard, Sauber relied on, among others, Tomlie Nominees Pty Ltd v Dextrone Pty Ltd (VSC, No 5244/93, 13 August 1993, unreported, BC9300749). Croft J had particular regard to the decision of Kaye J (as his Honour then was) in Lollis v Loulatzis (No 3) [2008] VSC 231; BC200804935, where his Honour held that the court does not have power, either by way of inherent power or under Or 66.14 of the Supreme Court Rules to vary or rescind an order which had been authenticated in the circumstances of that case, and which had been made by application by one of the parties without the consent of the other parties. [page 209] Ultimately, Croft J did not consider the present circumstances to be properly characterised as a situation where it is open to the parties to seek to vacate, vary or discharge the orders by consent. His Honour noted that if one were to characterise the orders made as being equitable in nature (on the basis the orders were permanent injunctive relief), the orders are operating within and are constrained by the nature and context of the international arbitral regime (which is given the force of law by a statute, the IAA). In this case, the nature of the Orders made by the court are orders recognising and enforcing a foreign arbitral award under the statutory provisions of the IAA. The provisions of this statute mandate the enforcement of foreign arbitral awards in terms that mirror the New York Convention and the UNCITRAL Model Law. Critically, there is no provision in the IAA, the New York Convention or the UNCITRAL Model law that allows a party or parties to undo recognition and enforcement of an arbitral award, although it is pen to an enforcing court to stay enforcement of an award in appropriate circumstances. His Honour held that having regard to the nature and purpose of the IAA, the New York Convention and the Model Law, it would be expected that an enforcing court “. . . would only in very clear circumstances act to stay enforcement of a foreign arbitral award where that award was otherwise properly recognised and enforceable within the jurisdiction of that Court.” (at [19]). Croft J held that the international arbitral regime does provide some flexibility

for circumstances such as the present. His Honour held that Article III of the New York Convention, by way of example, within appropriate constrained limits, allows for orders “regulating” the process of enforcement. Accordingly, his Honour held that an order staying enforcement until further order of the enforcing court is an order consistent with the New York Convention, but not an order vacating, discharging or permanently staying an enforcement order. Accordingly, Croft J held that it was only appropriate to stay the orders of the court until further order (and not permanently) having regard to the mandate under the provisions of the IAA, the New York Convention and the Model Law that foreign arbitral awards must be recognised and enforced subject only to the exceptions provided for in that legislation, the New York Convention and the Model Law. [s 34.75] Subsection 34(3) In accordance with s 34(3), a party to the arbitration has only three months from the date of the making of the award to make an application to set aside the award. If the party had made an application under s 33 then they have three months from the date of disposal of that request by the arbitral tribunal. The time period ought to be strictly adhered to. This has been the view held by the Singapore courts. In ABC Co v XYZ Co Ltd [2003] 3 SLR(R) 546, Judith Prakash J said, at [9]: [9] . . . On the aspect of time, art 34(3) is brief. All it says is that the application may not be made after the lapse of three months from a specified date. Although the words used are “may not” these must be interpreted as “cannot” as it is clear that the intention is to limit the time during which an award may be challenged. This interpretation is supported by material relating to the discussions amongst the drafters of the Model Law. It appears to me that the court would not be able to entertain any application lodged after the expiry of the three-month period as Art 34 has been drafted as the all encompassing, and only, basis for challenging an award in court. It does not provide for any extension of the time period and, as the court derives its jurisdiction to hear the application from the article alone, the absence of such a provision means the court has not been conferred with the power to extend time. This view was also supported in PT Pukuafu Indah v Newmont Indonesia Ltd [2012] SGHC 187 where Lee Seiu Kin J said, at [30]: [30] . . . While the word “may” often conveys some measure of discretion in

contradistinction to the mandatory “shall”, “may not” is clearly mandatory and in the context of Art 34 of the Model Law, imposes a time bar. This interpretation is consistent with O 69A r 2(4) of the Rules of Court, which provides that an application to set aside [page 210] an award under s 24 of the IAA and Art 34 of the Model Law “shall be made within 3 months from the date of receipt by the plaintiff of the award” [emphasis added]. The court’s powers in relation to international arbitration proceedings are limited to those conferred by the IAA and the jurisdiction to set aside an award must therefore be construed narrowly. In the absence of an express provision, the phrase “may not” cannot be read as implicitly enlarging the scope of the court’s powers by giving a discretion to extend the time limit. I add that finality is one of the fundamental principles of arbitration, and a definitive time limit for challenging an arbitral award is necessary to ensure the expeditious and effective resolution of parties’ disputes. In any case, this view has also been shared by commentators noting Art 34(3) of the Model Law; see J Lew, L Mistelis, and S Kroll, Comparative International Commercial Arbitration, Kluwer Law International, 2003, at [25]–[26] where the authors noted that: The word “may” indicates that there is some discretion afforded to a court which would decide to hear a case after the expiration of the time limit. This use of language in Article 34 is justified: an action for challenge is the only recourse the unsuccessful party has in the country where the award was made; it also manifests confidence that the courts will exercise their discretion wisely. It is unlikely that courts will allow challenges after the expiration of time limits given the pro-finality of awards policy in most countries. Further, the Model Law Working Party rejected a proposal to make the three month period of time subject to contrary agreement of the parties. The importance of parties complying with procedural time limits in relation to filing and serving proceedings to challenge an arbitral award is highlighted by the recent decision of the Supreme Court of Victoria in Limin James Chen v Kevin McNamara & Son Pty Ltd [2013] VSC 539; BC201313670. While this case concerned an application for leave to appeal an arbitral award under the

repealed Act, Croft J considered a number of principles relevant to extensions of time for filing and serving an originating motion and summons associated with bringing an application for leave to appeal under the Supreme Court (Civil Procedure Rules) 2005 (“Rules”). His Honour also considered the application of the Civil Procedure Act 2010 (Vic) to proceedings seeking to challenge an arbitral award. R3.02 of the rules gives the court the discretionary power to extend time limits fixed by the rules, such as those that apply to the filing and service of a summons and originating motion to challenge an arbitral award. The court noted that the discretionary factors to be taken into consideration in determining whether to exercise its discretion to extend time include the following considerations: length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice to the opposing party if the extension is granted (citing, among other cases, Peter Schwarz (Overseas) Pty Ltd v Morton (2004) 20 BCL 133; [2003] VSC 144; BC200302358 (Byrne J), which considered the exercise of the discretion in an arbitral context). In this case, the court considered the plaintiff’s delay in filing the originating motion by 5 days was not excessive. However, the Court held that the plaintiff’s delay in serving the summons on the originating motion on the defendant (by 51 days) and on the arbitrator (by 68 days) was excessive and without a reasonable or adequate explanation; particularly having regard to R4.06 of the rules which requires a summons to be served “as soon as practicable”. Furthermore, the court considered that the defendant would suffer prejudice if an extension of time were permitted, given the defendant had among other things an award in its favour which entitled it to an immediate benefit. This decision also highlights the application of the Civil Procedure Act 2010 (Vic) in relation to civil proceedings commenced in respect of the arbitral process (which may include, for example, applications to challenge and to enforce arbitral awards, or for other interim relief). In this case, the court considered the plaintiff had failed to comply with the provisions of the Civil Procedure Act which mandates an “overarching purpose” on participants to civil proceedings to “facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute”. The court held that the plaintiff had contravened its overarching obligation to act promptly and to [page 211] minimise delay in bringing the application to seek leave to appeal the arbitral

award, noting the conduct of the plaintiffs with respect to the entire appeal process had been “most unsatisfactory”. Having regard to the language of ss 34(3) and 34A(6) of the CAA, a party will be prohibited from bringing an application to set aside an award or bringing an application to seek leave to appeal an award if 3 months have elapsed since the date on which the party making the application had received the award (or if a request had been made under s 33 of the Act, from the date on which that request had been disposed of by the arbitral tribunal). Having regard to the language of the provisions, it appears that the court will not be permitted to exercise its discretion under the rules to extend time and allow a party to file and serve a summons and originating motion to set aside or appeal an award outside of the stipulated 3 month time period. In any event, the decision of Croft J in Limin James Chen v Kevin McNamara & Son Pty Ltd [2013] VSC 539; BC201313670 highlights how modern courts will take a very dim view of significant delays in bringing applications for leave to challenge arbitral awards, having regard to the Civil Procedure Act (and other state equivalents) and principles of efficient case management. [s 34.80] Subsection 34(4) Under this subsection when the court has been requested by a party to set aside an award it may suspend the proceedings for such period as it thinks fit to enable the tribunal the opportunity to resume proceedings or to take such actions as the tribunal thinks fit to eliminate the grounds for setting aside the award.

Appeals against awards 34A (1) An appeal lies to the Court on a question of law arising out of an award if— (a) the parties agree, before the end of the appeal period referred to in subsection (6), that an appeal may be made under this section; and (b) the Court grants leave. (2) An appeal under this section may be brought by any of the parties to an arbitration agreement. (3) The Court must not grant leave unless it is satisfied— (a) that the determination of the question will substantially affect the rights of one or more parties; and

that the question is one which the arbitral tribunal was asked to (b) determine; and (c) that, on the basis of the findings of fact in the award— (i) the decision of the tribunal on the question is obviously wrong; or (ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt; and (d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the Court to determine the question. (4) An application for leave to appeal must identify the question of law to be determined and state the grounds on which it is alleged that leave to appeal should be granted. (5) The Court is to determine an application for leave to appeal without a hearing unless it appears to the Court that a hearing is required. (6) An appeal may not be made under this section after 3 months have elapsed from the date on which the party making the appeal received the award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal (in this section referred to as the appeal period). [page 212] (7) On the determination of an appeal under this section the Court may by order— (a) confirm the award; or (b) vary the award; or (c) remit the award, together with the Court’s opinion on the question of law which was the subject of the appeal, to the arbitrator for reconsideration or, where a new arbitrator has been appointed, to that arbitrator for consideration; or (d) set aside the award in whole or in part. (8) The Court must not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the arbitral tribunal for reconsideration. (9) Where the award is remitted under subsection (7)(c) the arbitrator must, unless the order otherwise directs, make the award within 3 months after the date

of the order. (10) The Court may make any leave which it grants under subsection (3)(c) subject to the applicant complying with any conditions it considers appropriate. (11) Where the award of an arbitrator is varied on an appeal under this section, the award as varied has effect (except for the purposes of this section) as if it were the award of the arbitrator. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 34A.5] Extension of appeal grounds under s 34A In the domestic context the grounds provided for in s 34 of Act were thought, at least potentially, to be too narrow. Consequently there is a broader appeal right given under s 34A. Section 34A only applies to domestic arbitrations, and allows an appeal on a question of law if the parties agree that such an appeal may be made and the court grants leave. This section is the high point of the court’s supervisory role and goes further than the grounds set out in s 34; although the appeal right is still restricted. Determinations of fact cannot be subject to appeal, but, of course, there is often difficulty in separating law from fact to the extent that a failure with respect to the determination of factual matters may amount to an error of law. The decision of the tribunal must be “obviously wrong” or the question must be one of “general public importance” and the arbitral decision is open to “serious doubt”. These tests are somewhat similar to those under the repealed Act, but they appear to be more constrained and should be seen as at least incorporating the more restrictive approach to appeals contained in the Nema guidelines: see Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724 at 742. [s 34A.10] Appeal limited to “a question of law arising out of the award” The requirements for an appeal have changed significantly, reflecting the trend against judicial intervention in the decision of the tribunal. The difference between questions of law and questions of fact is difficult to distinguish. This difficulty is further increased given that a finding of fact that is not open on the evidence falls within the ambit of an error of law: see Chidiac v R (1991) 171 CLR 432. In Compensation Tribunal [1998] 1 VR 83 Phillips JA said, at 89–90:

It cannot be said as a matter of legal principle that a determination of fact can never give rise to an error of law, but ordinarily it will not be so unless it is shown the that fact-finding tribunal arrived at a finding that was simply not open to it. In so referring to a “finding” I use the term not only to include a finding of fact derived from the acceptance of direct evidence to that effect; I include also an inference of fact drawn by the tribunal from other facts found by it. If the finding (be it a finding on direct evidence or inference) was not open to the tribunal, that may bespeak a relevant error of law. [page 213] In a decision of the Singapore High Court in Permasteelisa Pacific Holdings Ltd v Hyundai Engineering & Construction Co Ltd [2005] 2 SLR(R) 270, Judith Prakash J considered the scope of a challenge to an award on the basis of error of law, at [9]–[13]: [9] As regards leave to appeal to the court under s 28 of the Act, the principles to be applied are well known. They emanate from Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724 (The Nema) and the Court of Appeal decision of Hong Huat Development Co (Pte) Ltd v Hiap Hong & Co Pte Ltd [2000] 2 SLR 609, and have been further clarified in the recent Court of Appeal decision of Northern Elevator Manufacturing Sdn Bhd v United Engineers (Singapore) Pte Ltd [2004] 2 SLR(R) 494 (the Northern Elevator case). The first point to be made is that, as stated in s 28(1) of the Act, the court cannot set aside an award because there has been an error of law on the face of the award. Nor does an error of law give rise to a right of appeal. It is only when there is a question of law that arises from the award that leave to appeal is permissible. In the Northern Elevator case, the Court of Appeal (per Choo Han Teck J at [19]) held: [A] “question of law” must necessarily be a finding of law which the parties dispute, that requires the guidance of the court to resolve. When an arbitrator does not apply a principle of law correctly, that failure is a mere “error of law” (but more explicitly, an erroneous application of law) which does not entitle an aggrieved party to appeal. This holding was an endorsement of the statement of the law by G P Selvam JC in Ahong Construction (S) Pte Ltd v United Boulevard Pte

Ltd [2000] 1 SLR 749 at [7]: A question of law means a point of law in controversy which has to be resolved after opposing views and arguments have been considered. It is a matter of substance the determination of which will decide the rights between the parties. . . If the point of law is settled and not something novel and it is contended that the arbitrator made an error in the application of the law there lies no appeal against that error for there is no question of law which calls for an opinion of the court. (emphasis added) By reason of the foregoing authorities, it would seem that, in Singapore, the view of Robert Goff J in Italmare Shipping Co v Ocean Tanker Co Inc (The Rio Sun) [1981] 2 Lloyd’s Rep 489 that it does not follow that “simply because there is no dispute as to the general law, the application of the law to the facts cannot itself raise a question of law”, at 492, has been rejected. [10] As discussed in The Nema, there are two types of questions of law that can arise from an arbitration award. The first is a question relating to the proper construction of a contract, because English law (and thus Singapore law too) regards the interpretation of a written document as being a question of law rather than a question of fact. When such a question arises, how the court approaches it depends on whether the contract is a “one-off” contract or a standard-form contract. In the first case, leave to appeal will only be given if it is apparent upon a perusal of the reasoned award that the meaning ascribed to the clause by the arbitrator is obviously wrong. In the other case, leave will be given only if the judge considers that first, the resolution of the question of construction would add significantly to the clarity, certainty and comprehensiveness of Singapore commercial law, and second, that a strong prima facie case has been made out that the arbitrator has been wrong in his construction. However, even in this latter situation, when the events to which the standard clause falls to be applied are themselves “one-off” events, stricter criteria must be applied along the same line as those appropriate to “one-off” clauses: see Lord Diplock in The Nema at 742–3. [11] The other type of question of law that may arise is the kind that requires the arbitrator to determine whether the facts proved in evidence before him lead to a particular legal conclusion. It can be a pure question of law or a mixed question of fact and law. An example of this type of question of law arose in The Nema itself, where the arbitrator had to decide

whether the charterparty between the parties had been frustrated. As Lord [page 214] Diplock stated (at 738), the question of frustration is never a pure question of fact, but involves a conclusion of law as to whether the frustrating event or series of events has made the performance of the contract a thing that is radically different from that which was undertaken by the contract. Lord Diplock went on to hold (at 744) that where the second type of question of law arises, the judge deciding whether to give leave to appeal against the arbitrator’s decision should not ask himself whether he agrees with the decision reached by the arbitrator, but rather, whether it appears upon perusal of the award either that the arbitrator misdirected himself in law or that his decision was such that no reasonable arbitrator could reach. This will be the normal approach, and only if there is a situation where the events involved are not “one-off” events but events of a general character that affect similar transactions between many other parties engaged in the same kind of commercial activity, will the judge be justified in taking a different approach. [12] Distinguishing between questions of law and questions of fact may not always be straightforward. As pointed out in D Rhidian Thomas, The Law and Practice Relating to Appeals from Arbitration Awards, Lloyd’s of London Press Ltd, 1994 at para 3.2.6: A question may, however, remain one of fact notwithstanding that it arises in the context of legal criteria and therefore cannot in strictness be described as one of the pure fact. Such questions arise when what is in issue is the application of evaluated facts to an abstract legal proposition. What is a partnership is a question of law with the legal concept defined by the Partnership Act 1890, section 1. But whether a particular relationship amounts to a partnership is characterised as a question of fact. [13] Finally, even if the questions of law raised by PISA meet the tests set out above, the court cannot give leave to appeal unless it considers that the determination of the question of law concerned could substantially affect the rights of one or more to the arbitration agreement (s 28(4) of the

Act). Thus, the questions of law must have a substantial impact on the rights of at least one of the parties in order for leave to be given. Under s 34A(1)(b) the appeal is on a question of law arising out of the award and is not to be used as a means of attacking the award on any legal question. If leave is granted on issues not considered by the arbitrator then leave should also be sought to raise countervailing issues: see Gordian Runoff Ltd v Westport Insurance Corp (2010) 267 ALR 74 at 123 per Allsop P. In Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 43 WAR 91; 287 ALR 315; [2012] WASCA 50, which arose under the former legislation, appeals were sought from decisions of the primary judge that: Pursuant to section 33 of the Commercial Arbitration Act 1985 (WA), the plaintiff have leave to enforce in the same manner as a judgment of the court the award made on 16 August 2010 by the arbitrator, the Honourable Mr Murray Gleeson AC QC in the arbitration between the plaintiff and the defendant. The issues in each appeal were identical, and arose from awards made in arbitration proceedings which were heard simultaneously before the same arbitrator. The appeals embodied the same basic proposition, that the primary judge erred by dealing with the enforcement of the awards under the Commercial Arbitration Act 1985 (WA) (the CAA 1985), when the only source of jurisdiction for the enforcement of the awards was the IAA. The plaintiff relied on alternative lines of reasoning to support its proposition. First, that the IAA has never permitted parties to an agreement providing for international arbitration to opt-out of the provisions of the Model Law relating to the recognition and enforcement of awards which are made applicable to international arbitrations by the IAA. Second, the amendments to the IAA (which came into effect on 6 July 2010) prevented parties to an agreement providing for international arbitration from opting out of the provisions of the Model Law relating to recognition and enforcement of awards. Therefore the IAA as amended applied to the proceedings before the primary judge. [page 215] The second ground was allegedly supported by three alternative arguments. First, because the relevant amendments related to matters of procedure, not substantive law, and should therefore be construed as applying to all

international arbitration agreements, whenever they were entered into. Second, because the amended legislation, properly construed, manifests an intention that the amended law should apply to all international arbitration agreements whenever entered into. Third, because the amended laws apply to all proceedings for recognition and enforcement commenced after the amendments came into operation on 6 July 2010. If any of the alternative lines of reasoning were successful, the plaintiff stated that the provisions of the CAA 1985 relating to the enforcement of awards must be read down so as to prevent them applying to these awards and to avoid the invalidity of the CAA 1985 pursuant to the operation of s 109 of the Constitution of the Commonwealth of Australia. The defendant raised two procedural issues in opposition to these appeals. First, the decision of the primary judge granting leave to enforce the award as a judgment was an interlocutory decision, with the result that leave to appeal was required and with the further result that an application for leave to appeal had to be brought within 14 days of the decision of the primary judge. Therefore, an extension of time within which to apply for leave to appeal was required, and a grant of leave was needed before the appeal could be entertained. Second, the plaintiff should not have been permitted to raise on appeal an issue which it did not raise before the primary judge. In addition, if the plaintiff was correct in asserting that the court did not have jurisdiction to enforce the awards under the CAA 1985, the decision of the primary judge should in any event have been upheld, as the orders which he made were within the jurisdiction conferred upon the court by the IAA and should have been upheld on that basis. Martin CJ (with whom Buss JA agreed) and with whom Murphy JA in separate reasons agreed found that that the orders below were final and not interlocutory and that the plaintiff could not raise a new point on appeal. The new point sought to be raised on appeal was that the Supreme Court’s only source of jurisdiction to enforce the arbitral awards was the IAA, but no reference was made to this point in its written or oral submissions, nor did it seek an adjournment for the purpose of further researching this issue and considering its position. Before the primary judge, the plaintiff had sought the exercise of the court’s discretion on the basis of the applications for leave to appeal from the awards which it had brought pursuant to s 38 of the CAA 1985. Martin CJ held that the plaintiff sought to obtain a forensic advantage by its reliance upon the CAA 1985 in its appeal from the decision to refuse its applications for leave to appeal from the awards, while at the same time asserting that the decisions of the primary judge to grant leave to enforce the

awards should be set aside because the CAA 1985 had no application. Later the plaintiff decided which of its inconsistent contentions it would maintain, by discontinuing its application is for leave to appeal from the decision to refuse its application for leave to appeal from the arbitral awards, at [71]–[88]. Martin CJ held, at [150], that the amendment of s 21 of the IAA in 2010 did not have the effect of applying the Model Law to the arbitrations the subject of these proceedings, or to prevent the continuing operation of the parties agreement that all aspects of the arbitral proceedings are to be governed by the CAA 1985. Murphy JA gave further reasons of the current operation of s 21 of the IAA and why he would not accept the appellant’s contention that the repeal and substitution effected by the Amendment Act in relation to s 21 of the IAA merely operated as a law with respect to procedure and did not affect accrued rights in this case or the continuing operation of the CAA 1985 with respect to the enforcement of the arbitral awards in this case, at [182]–[185]. Both Murphy JA and Martin CJ referred to and in respect to the issue of the retroactivity of amendments to the Act, distinguished the decision in Castel Electronics Pty Ltd v TCL Air Conditioner (Zongshan) Co Ltd (2012) 201 FCR 209; 287 ALR 297; [2012] FCA 21. [s 34A.15] Parties must agree to an appeal — s 34A(1)(a) must agree to an appeal before the end of the appeal period.

The parties

[page 216] The preconditions for an appeal are stricter under s 34A(1) of the Act than under s 38(4) of the repealed Act as there is the need for the parties to agree and the court must grant leave under s 34(1)(a). A discussion of this provision arose in Ashjal Pty Ltd v Elders Toepfer Grain Pty Ltd [2012] NSWSC 545 before Hammerschlag J. In this case, the plaintiff sold Australian origin wheat to the defendant. The contract provided for all disputes, controversies all claims arising out of, relating to or in connection with them to be resolved by arbitration in accordance with the Grain Trade Australia (GTA) Trade Rules. These rules incorporate the GTA Dispute Resolution Rules. The arbitrator made a final award in which finding that the plaintiff had wrongfully cancelled the contract and was liable to indemnify the defendant for $119,000 for the non-delivery of grain. The plaintiff accepted that there was no express agreement between the parties but that it was to be implied from the

terms of the contract that either party may appeal on a question of law with the leave of the court. It was accepted that the terms sought to be implied must meet the well-known test for an implied term laid down in BP Refinery Western Port Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 and adopted in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 which are the following: (1) It must be reasonable and equitable. (2) It must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it. (3) It must be so obvious that it goes without saying. (4) It must be capable of clear expression. (5) It must not contradict any express term of the agreement. These tests must be met at the time that the contract is entered into. The term contended for fails to satisfy at least three of the tests. First, as at the date of the contract the Commercial Arbitration Act 1984 (NSW) (CAA 1984) gave a right of appeal with the leave or by agreement. The implied term contended for was thus not necessary to give the contract business efficacy at that time. The contract still operated without it. Second, given the state of the legislation at the time, the term contended for was not obvious. Indeed, such a term was obviously not required. Finally, Art 13 of the GTA Dispute Resolution Rules contemplated amendments to the CAA 1984. The notion that the agreement would be inconsistent with subsequent legislation failed the test that the implied term must not contradict any express term of a contract. For the above reasons it was held that there was no implied term that either party may appeal on a question of law with the leave of the court. [s 34A.20] And the court grants leave — s 34A(1)(b) The court must also grant leave. Both s 34A(1)(a) and s 34A(1)(b) must be met. Absent some other basis for setting aside the award or resisting enforcement, the court will uphold the award unless the requirements of s 34A are met. Rather than grant an appeal against an award the court may remit the matter back to the arbitrator under s 34A(7)(c). [s 34A.25] Appeal by any of the parties Under s 34A(2) an appeal can be brought by any of the parties to an arbitration agreement. See also s 7 in regard to parties to the arbitration. Some difficulties may arise if a party is a party incorporated by reference. The former provision under the repealed Act was s 38(4). An unusual situation arose in Victoria v Grawin Pty Ltd [2012] VSC 157 where the state

initially sought to leave to set aside an award pursuant to s 38(4)(b) of the repealed Act. A dispute the subject of the award was pursuant to the Port Bellarine Tourist Resort Act 1981 (Vic). Two distinguished arbitrators were appointed but agreement could not be reached. An umpire was appointed to determine the issues unresolved by the arbitrators. After further evidence and submissions the umpire delivered an award. On 16 March 2012, in a directions hearing the state sought to fix the hearing of the leave application later rather than sooner because on the 13 March 2012, the Port Bellarine Tourist Resort (Repeal) Bill had been introduced into State Parliament, with the Second Reading Speech anticipated the next [page 217] day. The bill was adjourned until the 28 March but if it became law the proceeding would be rendered nugatory. The Bill subsequently passed both Houses of the Victorian Parliament and received the Royal Assent on 3 April 2012. The state sought leave to discontinue the proceedings. Three issues arose: (1) Should leave to discontinue be granted? (2) Does the court have jurisdiction to order the state to pay Grawin’s costs of the proceeding? (3) If the court does have jurisdiction, should the state be ordered to pay those costs on a party-party or an indemnity basis? Grawin Pty Ltd (Grawin) did not oppose the application for leave to discontinue and the controversy between the parties continued with respect to the question of costs and the basis upon which any costs might be awarded. The state argued that Grawin’s claim for costs was precluded because, in terms of s 10(2) of Port Bellarine Tourist Resort (Repeal) Act 2012 (Vic) (Repeal Act), the claim arose out of or in connection with “the termination of the Agreement (however that termination was effected)”. In addition, the termination of the agreement necessitated the application to discontinue the proceedings and that application immediately generated the claim for costs. There, was, an immediate and direct causal connection between the termination of the agreement and Grawin’s claim for costs. For these reasons the state submitted that the claim arose “out of or in connection with” the termination of the agreement. Grawin argued that the causal connection between the claim for costs and the termination of the agreement was not a “one-step” process and that there was an

additional factor intervening, namely the decision of the state to commence the present proceedings. It was held by Croft J, at [17]: . . . Unless that step had been taken, there would have been no costs incurred, the subject of the present claim by Grawin, and no issue would have arisen in relation to the operation of s 10 of the Repeal Act with respect to costs. Without some direct causal link with the termination of the Agreement, it is difficult to see how the language of s 10(2) of the Repeal Act could accommodate a claim for costs. Furthermore, it is clear that, in general terms, a claim for costs is not regarded as a claim in itself. Rather, it is part of the relief that may be sought in pursuit of a civil claim by litigation. . . Grawin also submitted that, to the extent that s 10 of the Repeal Act purports to extinguish any possibility of an award of costs to Grawin when it constitutes an implied modification of s 85 of the Constitution Act by removing jurisdiction in the Supreme Court to award costs were the provisions of the Repeal Act apply. Croft J continued, at [19]: The effect of the provision of s 85 is that any amendment of its provisions must, to be effective, satisfy certain manner and form requirements. Thus, a Bill to amend s 85 must, by reason of these provisions and other provisions (see s 18(2A)) of the Constitution Act, receive the support of an absolute majority of both Houses of Parliament; be the subject of a statement during the second reading speech of the member introducing the Bill or after not less than 24 hours notice is given of the intention to make the statement but before the third reading of the bill (or with the leave of the Legislative Council or the Legislative Assembly, as the case requires, at any time before the third reading of the Bill); and the Bill itself must contain an express statement of an intention to amend the s 85 of the Constitution Act (See The Broken Hill Proprietary Company Ltd v Dargi [1996] 2 VR 117 at 184–7 per Phillips JA; and as to the requirements of these provisions, see also G Taylor, The Constitution of Victoria, The Federation Press, 2006, pp 496–509.) On this issue Croft J said, at [21] and [22]: [21] . . . if the provisions of s 10 of the Repeal Act did, properly construed, extend to circumscribe the powers and jurisdiction of the court to award costs, those provisions would be

[page 218] ineffective because the manner and form provisions of s 85 of the Constitution Act were not invoked to amend its provisions to accommodate such a circumscription of the court’s powers and jurisdiction. [22] There was no suggestion, however, that the fact that the manner and form provisions of s 85 of the Constitution Act were not invoked was anything but a conscious decision on the part of the Victorian Government to seek enactment of the Bill in the form in which it was introduced into Parliament. That being the case, it follows, in my view, that an inference can be drawn that the Parliamentary intention was not to circumscribe the powers and jurisdiction of the court with respect to costs by the provisions of s 10 of the Repeal Act . . . The remaining issue was whether the state should pay costs on an indemnity basis or on a party-party basis. On this question, Croft J said, at [24]: It is well settled that the usual award of costs is on a party and party basis and that this usual position will only be departed from in “special circumstances”. Although the categories of “special circumstances” are not closed, they include: (i)

The making of an allegation, and known to be false, that the opposite party is guilty of fraud. . . (ii) The making of an irrelevant allegations of fraud. . . (iii) Conduct which causes loss of time to the court and to other parties. . . (iv) The commencement or continuation of proceeding for an ulterior motive. . . (v) Conduct which amounts to a contempt of court. . . (vi) The commencement or continuation of proceedings in wilful disregard of known facts or clearly established law. . . (vii) The failure until after the commencement of the trial, and without explanation, to discover documents the timely discovery of which would have considerably shortened, and very possibly a avoided, the trial . . . (Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 at [7] per Harper J; and see Manderson M & F Consulting v Incitec Pivot Ltd (No 3) [2011] VSC 441 at

[8], [12] per Croft J. His Honour concluded, at [33]: . . . the state is correct in its submission that no “special circumstances” exist which would justify the award of costs other than on a party-party basis. I accept the state’s submission in relation to the commencement of these proceedings. The dispute raised complex construction issues in relation to the terms of the Agreement, particularly clause 5(1)(b), questions upon which the minds of very skilled and experienced lawyers call, including two former judges and a very senior member of the Victorian Bar, clearly differed. In response to Grawin’s submissions that the state commenced these proceedings as a delaying tactic and, or alternatively, never intended that to pursue them to compilation, his Honour said, at [34]: . . . in my view, there is no basis for questioning the right and power of the Executive to consider its position following the delivery of the Umpire’s reasons for decision and then to decide to institute the present proceedings which, for the reasons indicated, I regard as having at the least a reasonable and arguable basis. If, in the course of considering its position, the Executive decided to introduce legislation to affect the rights of the parties to the dispute between them, then it is constitutionally within its power to do so. [s 34A.30] Subsection 34A(3) based on s 69(3) of the Arbitration Act 1996 (Eng) The wording of s 34A(3) has only minor differences from s 69(3) of the Arbitration Act 1996 (Eng). The jurisprudence developed in the case law in the England applies to this section: see M Mustill and S Boyd, Commercial Arbitration, 2nd ed, LexisNexis Butterworths, 1989, 383, et seq. [s 34A.35] The granting of leave by the court is conditional Subsection 34A(3) is mandatory in that the court “must not grant leave unless” it is satisfied that the conditions set out [page 219] in s 34A(3)(a)–(d) are met. These conditions are cumulative and establish a much higher threshold than s 38(5)(a) of the repealed Act. [s 34A.40] Subsection 34A(3)(a) will substantially affect the rights of one

or more of the parties The word “will” and not the word “could” is used in s 34A(3)(a) (see s 38(5)(a) of the repealed Act). For a discussion as to the application of the word “could” see Vodafone Pty Ltd v Supercall Pty Ltd [2003] NSWSC 302 at [57]. In the course of finding that the former s 38(5)(a) was satisfied Allanson J in Cole v Gebauer Nominees Pty Ltd [2012] WASC 9 stated, at [31]: . Questions of law, however important should not go forward for decision if, as between the immediate parties, the matter is largely academic: Ipswich Borough Council v Fisons PLC [1990] 1 Ch 709 at 721. Relevant factors include the amount in issue, and the relationship between the costs of the appeal and the significance of the question of law to be determined: Cargill International SA v Peabody Australia Mining Ltd (2010) 78 NSWLR 533; [2010] NSWSC 887 at [139]. [s 34A.45] Subsection 34A(3)(b) — question must be one that the arbitral tribunal was asked to determine The question must have been one that the tribunal was asked to determine. An appeal cannot be launched on a question that of law that was not before the arbitral tribunal: see the discussion in CMA CGM SA v Beteiligungs-Kommanditgesellschaft MS “Northern Pioneer” [2003] 3 All ER 330; [2003] 1 WLR 1015 at 1031. [s 34A.50] Subsection 34A(3)(c) — The Nema guidelines Subsection 34A(3)(c) sets out the grounds of appeal as set out in the decision in Pioneer Shipping Ltd v BTP Tioxide (The Nema) No 2 [1982] AC 724. The Nema guidelines were incorporated into s 38 of the repealed Act by the passing of identical legislation by the states and territories. There are differences in wording and in judicial interpretation of s 69(3) of the Arbitration Act 1996 (Eng) to that formerly found in s 38 of the repealed Act. The Act follows s 69(3) of the Arbitration Act 1996 (Eng) and not s 38 of the repealed Act (see [s 34A.15].) [s 34A.55] Subsection 34A(3)(c) — on the basis of the findings of fact in the award Whether s 34A(3)(c)(i) and (ii) are satisfied is a matter to be determined on the basis of the findings of fact in the award. Arbitrators have encountered difficulty in distinguishing questions of fact from questions of law. It has been held to be an error of law if the arbitrator or arbitrators “acted without any evidence or upon a view of the facts which could not reasonably be maintained”: Edwards v Bairstow [1956] AC 14; and see M Mustill and S Boyd, Commercial Arbitration, 2nd ed, LexisNexis Butterworths, 1989, p 592.

Australian decisions have allowed this contentious ground of appeal: see Gordian Runoff Ltd v Westport Insurance Corp (2010) 267 ALR 74; and Cargill International SA v Peabody Australia Mining Ltd (2010) 78 NSWLR 533; [2010] NSWSC 887. Doubts have been raised about maintaining this ground of appeal: see M Mustill and S Boyd, Commercial Arbitration, 2nd ed, LexisNexis Butterworths, 1989, p 596. This ground of appeal was viewed unfavourably by the New Zealand Law Reform Commission: see Arbitration Act 1996 (NZ) Sch 2 s 5(10); see also the Report on the Arbitration Bill (February 1996) of the Departmental Advisory Committee; M Mustill and S Boyd, Commercial Arbitration, 2nd ed, LexisNexis Butterworths, 1989, p 395 et seq. The authors prefer the New Zealand approach to eliminating this type of appeal by legislative action in defining the phrase “error of law” rather than to hope that the courts will change an established course of decision making. Section 5(10) of Sch 2 of the Arbitration Act 1996 (NZ) provides: (10) For the purposes of this clause, question of law— (a) includes an error of law that involves an incorrect interpretation of the applicable law (whether or not the error appears on the record of the decision); but [page 220] (b)

does not include any question as to whether— (i) the award or any part of the award was supported by any evidence or any sufficient or substantial evidence; and (ii) the arbitral tribunal drew the correct factual inferences from the relevant primary facts. In Westport Insurance Corp v Gordian Runoff Ltd (2011) 244 CLR 239; 281 ALR 593, the majority judgment held, at [36], that “failure to provide a statement of the reasons for the making of the award, as required by s 29(1)(c), may itself amount to a manifest error of law on the face of the award within the meaning of s 38(5)(b)(i) of the Arbitration Act (Ridler v Walter [2001] TASSC 98 at [9])”. (See [s 31.30].) It has been observed (B Harris, R Planterose, and J Tecks, The Arbitration Act 1996, 4th ed, Blackwell Publishing, 2007, at [69I]: It is our view that the wording of the Act precludes an appeal on a point of

law on the basis that there was either no or insufficient evidence to make a particular finding of fact. Authority is divided. For instance, a distinction is drawn in Fence Gate Ltd v NEL Construction Ltd [2001] 1 All ER (D) 214 between the situation where there is some evidence and that where there no evidence [sic], the latter giving rise to a question of law. But, since the last edition, in Demco Investments & Commercial SA v SE Banken Forsakring Holding Aktiebolag [2005] 2 Lloyd’s Rep 650, Cooke J has taken a stronger line, making it clear that neither situation, in his view, gives rise to a question of law.We respectfully agree with him. The general principle that a party should not be permitted to dress up a question of fact as one of law was more recently, and very strongly, endorsed in Surefire Systems Ltd v Guardian ECL Ltd [2005] BLLR 534. [s 34A.60] Use of extrinsic evidence Subsection 34A(3)(c) is based on the findings of fact in the award. The aim was to try and reduce disputes of fact and law in applications for leave to appeal against an award and in particular appeals on alleged errors of law on the basis of findings of fact in the absence of supporting evidence. The question whether extrinsic evidence can be used in applications for leave to appeal and in appeals is difficult with decisions for and against. The applicant will have to set out in its submissions with sufficient particularity the reasons why the court should in that case direct its attention to extrinsic evidence. Some factors the court may consider include: Was the document incorporated into the award? Is the appeal on s 34(3)(c)(i) or (ii) or both? Does the document sought to be considered assist the court in determining any of the grounds of s 34A? Does the document assist the court’s understanding of the grounds of the leave application? Courts are reluctant to allow extrinsic evidence where certain conclusions in the award were not, on an overview, reasonably open. [s 34A.65] Subsection 34A(3)(c)(i) — “obviously wrong” The words “obviously wrong” in s 34A(3)(c)(i) replace the words “manifest error of law on the face of the award” formerly found in s 38(5)(b)(i) of the repealed Act. The expression “obviously wrong” is a higher threshold than “manifest error of law on the face of the award” in the sense that the decision of the tribunal was obviously wrong is decided without any adversarial argument unless it appears to the court that a hearing is necessary: see s 34A(5). The provision is modelled

from the first limb of The Nema guidelines. The decision to follow the s 69(3) of the Arbitration Act 1996 (Eng) with different wording to s 38 of the repealed Act limits the usefulness of decisions made under the s 38: see Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203; Qantas Airways Ltd v Joseland & Gilling (1986) 6 NSWLR 327; Leighton Contractors Pty Ltd v South Australian [page 221] Superannuation Fund Investment Trust (1994) 63 SASR 444; Leung v Hungry Jacks Pty Ltd [1999] VSC 477; Murrin Holdings Pty Ltd v Fluor Australia Pty Ltd [2003] VSC 275; Gordian Runoff Ltd v Westport Insurance Corp (2010) 267 ALR 74; Westport Insurance Corp v Gordian Runoff Ltd (2011) 244 CLR 239; 281 ALR 593). [s 34A.70] Subsection 34A(3)(c)(ii) — question is one of general importance and the decision is open to serious doubt An appeal can only be brought if the question is one of general importance and the decision of the tribunal is at least open to serious doubt. This is a reflection of the second limb of The Nema guidelines. The words in the former s 38(5)(b) of the repealed Act were: “strong evidence that the arbitrator or umpire made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law”. The majority of the High Court in Westport Insurance Corp v Gordian Runoff Ltd (2011) 244 CLR 239; 281 ALR 593 said, at [29], that: . . . The statute does not provide that if s 38(5) is satisfied then leave must be given. The distinction was explained by Sheller JA in Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203 at 225–6; and in Qantas Airways Ltd v Joseland & Gilling (1986) 6 NSWLR 327 at 33 iving the judgment of himself, Glass and Priestley JJA, emphasised that the discretion to grant leave is “to be exercised after considering all the circumstances of the case”. The majority of the High Court held, at [57], that there was “strong evidence that the arbitrators made an error of law, the determination of which may add substantially to the certainty of commercial law (s 38(5)(b)(ii))”. Under the new provision, there are two tests which need to be met and an

application for appeal may fail at either point. First, some applications for appeal will fail because they are not of general public importance. Second, applications for appeal that pass this test must also pass the second test that “the decision of the tribunal is at least open to serious doubt”. For a discussion of the expression “open to serious doubt”, see CMA CGM SA v BeteiligungsKommanditgesellschaft MS “Northern Pioneer” [2003] 3 All ER 330; [2003] 1 WLR 1015. [s 34A.75] Subsection 34A(3)(d) — just and proper in all the circumstances Subsection 34A(3)(d) provides that when the court is considering whether leave should be given a factor is whether it is just and proper in the circumstances for the court to determine the question. This subsection is in addition to the other requirements of s 34A(3). In regard to the equivalent provision in s 69(3)(d) of the Arbitration Act 1996 (Eng), it has been observed that (M Mustill and S Boyd, Commercial Arbitration, 2nd ed, LexisNexis Butterworths, 1989) 358): Some further reason for intervention must be present: the court is likely to refuse leave to appeal if there are circumstances which indicate that the parties wished speed and finality to prevail even if the tribunal decided a question of law in a way which was obviously wrong or at least open to serious doubt. [s 34A.80] Subsection 34A(4) The application for leave to appeal must identify the question or questions of law to be determined and the grounds on which it is alleged that leave to appeal should be granted. This is essential for the expeditious resolution of the dispute. This requirement is similar to those applying in regard to an appeal in litigation. [s 34A.85] Subsection 34A(5) Under this subsection the court “is to” determine the application for leave to appeal without a hearing unless the court considers that at a hearing is required. Section 34A follows s 69 of the Arbitration Act 1996 (UK). The only difference between s 34A(5) and s 69(5) is that the words “is to” in s 34A (5) are substituted for the word “shall” in s 69(5). The degree of difficulty of the appeal or its complexity will be a significant factor in the court deciding whether or not a hearing is required. The error will need to be evident for a decision to [page 222]

be made without adversarial argument. This will be easier in applications for leave based solely on the “obviously wrong” ground in s 34A(3)(c)(i) rather than the more complex ground in s 34A(3)(c)(ii). If an application for leave is based on both grounds the court will probably have to hold a hearing and decide both applications. Judges may as they do in litigation and hear the application for leave and then go on in the same hearing and hear the appeal. The course adopted by the court may depend on the time available. If only the leave application is listed there may not be sufficient time for a hearing of the appeal. If the appeal is listed separately then sufficient time would be allocated to hear the detailed submissions. This latter approach was favoured by Allsop P in Gordian Runoff Ltd v Westport Insurance Corp (2010) 267 ALR 74 at 94. Allsop P expressed concern that a “rolled up” application for leave to appeal in the determination of the appeal, if leave were granted, is at odds with the legislative purpose of s 38 and related provisions because of the likelihood that the practice would encourage and likely result in more lengthy and costly interference in the arbitral process than was intended by these provisions. Having regard to the views of Allsop P, in Yesodei Hatorah College Inc v Trustees of the Elwood Talmud Torah Congregation [2011] VSC 622, Croft J, nevertheless, allowed an appeal under s 38(2), (4) and (5) of the repealed Act where the parties agreed that if the judge granted leave to appeal the award under s 38 that he should also determine the appeal without any further hearing or submissions. Croft J held, at [14], that this case fell within the class of special exceptional cases where the treatment of an application for leave to appeal in the appeal itself are properly heard and determined in a single hearing if leave is to be granted. First, the parties consented to this course of action…. This is consistent with the consensual nature of the arbitration itself…. Second, the principal and decisive issue in these proceedings is the proper construction, and application on this basis, of the provisions of s 22(2) of the repealed Act. In the relative absence of judicial authorities, less than full argument of issues would not necessarily provide the court with even a reasonably considered basis for deciding whether to grant leave to appeal on the basis of error of law in the application of its provisions. Third, submissions on this principle and decisive issue did not involve any “any prolonged adversarial argument”, which the authorities indicate is the position the legislation seeks to avoid, for reasons both of time and cost and also because it involves interference in the

arbitration process beyond that sanctioned by s 38 and leaves the related provisions. Fourth, in the absence of circumstances that would indicate a single hearing would be at odds with the legislative intent of commercial arbitration legislation, regard should be had to the cost and time of separate hearings, one by way of a leave application and the other by way of appeal if leave were given, where it is reasonably clear that full argument of critical issues could be heard expeditiously…. Fifth, the application under the provisions of s 42(1) of the repealed Act, which is an application which does not require leave, necessarily involves more than a preliminary approach to the proper construction of s 22(2) of the repealed Act. In Limin James Chen v Kevin McNamara & Son Pty Ltd [2013] VSC 539; BC201313670, Croft J refused the plaintiff’s application for the court to hear and determine an application for leave to appeal and the appeal itself in a single hearing. The court, citing Yesodei Hatorah College Inc v Trustees of the Elwood Talmud Torah Congregation [2011] VSC 622; BC201109954 and Gordian Runoff Ltd v Westport Insurance Corp (2010) 267 ALR 74; [2010] NSWCA 57; BC201001877, considered that the cases did not fall within the class of special or exceptional circumstances justifying a “rolled up” hearing. In any event, the court noted that the parties had not consented to a “rolled up” hearing. [s 34A.90] Review of the arbitration awards — previous position The power of the court with respect to the review of arbitration awards which are subject to the repealed Act were regulated by ss 38 to 41. The repealed Act only provides for judicial review on a question of law not a question of fact: see s 38(2); and see Leighton Contractors Pty Ltd v South Australian Superannuation Fund Investment Trust (1994) 63 SASR 444 at 448 per Debelle J. The repealed [page 223] Act does not provide for merit appeals on questions of law but, rather, restricts appeals, principally on the basis provided for in s 38(5): see Gordian Runoff Ltd v Westport Insurance Corporation (2010) 267 ALR 74. Under s 38(5) of the Commercial Arbitration Act 1984, the court could not grant leave unless the requirements of s 38(5)(a) were met and either s 38(5)(b) (i) or s 38(5)(b)(ii) were satisfied. But, even if, the requirements of s 38(5) were met there was a residual discretion in the court to refuse leave to appeal: see s 38(4)(b) and (5)(b); and see Promenade Investments Pty Ltd v New South Wales

(1992) 26 NSWLR 203 at 225-6 per Sheller JA; and Westport Insurance Corporation v Gordian Runoff (2011) 244 CLR 239; 281 ALR 593 at [29] per French CJ and Gummow, Crennan and Bell JJ; and see also Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic), r 4.09(1)). The discretion to grant leave is “to be exercised after considering all of the circumstances of the cases”: s 38(5)(b). The residual discretion is not unfettered but involves a balancing of factors including the merits of assured finality on the one hand and the resolution of doubts as to the accuracy of the legal reasoning of the arbitrator: see Westport Insurance Corporation v Gordian Runoff (2011) 244 CLR 239; 281 ALR 593 at [38] and [165]; Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203 at 225–6; and in Qantas Airways Ltd v Joseland & Gilling (1986) 6 NSWLR 327 at 333. The first requirement under s 38(5) is that the question of law “could substantially affect the rights of one or more parties. . .” Whether the rights of a party could be substantially affected is a question of fact: see Mowby Pty Ltd v Moose Property Service Pty Ltd (in liq) [2007] VSC 111 at [51]. This requirement should not be narrowly confined and, in particular, not confined to cases in which the nature of the effect is purely monetary: see Vodafone Pty Ltd v Supercall Pty Ltd [2003] NSWSC 302 at [57] and [58] per Nicholas J. If the question of law involved the existence or otherwise of a contract, or in this case the agreement for lease or lease between the parties, then it is a question the determination of which could substantially affect the rights of one or more parties within the meaning of s 38(5)(a). In the Yesodei case, Croft J said, at [18], that the determination of the questions of law raised by the plaintiff’s application would substantially affect the rights of the plaintiff to occupy the land and operate the school upon it in the future. This in turn, could adversely affect the ongoing viability of the plaintiff. The seriousness of the effect of the award upon the plaintiff was acknowledged by the defendant in the course of the arbitration. In Limin James Chen v Kevin McNamara & Son Pty Ltd [2013] VSC 539; BC201313670, Croft J conveniently derived by way of summary five general principles that apply to leave to appeal applications under s 38 of the repealed legislation, having regard to Westport Insurance Corp v Gordian Runoff Ltd (2011) 244 CLR 239; 281 ALR 593; [2011] HCA 37; BC201107579 and the authorities. The five general principles are stated at [95]–[99] in the following terms: [95] First, in order to constitute a manifest error of law on the face of the award, the existence of the error must be manifest on the face of the

award, including the reasons given by the arbitrator, “in the sense of apparent to that understanding by the reader of the award” (citing Westport Insurance at [42]). [96] Second, what is required is swift and easy persuasion and rapid recognition of the suggested error (citing Thoroughvision Pty Ltd v Sky Channel Pty Ltd [2010] VSC 139; BC201002353 at [41]–[43]). [97] Thirdly, the alleged errors need to be evident or obvious, rather than arguable (citing Winter v Equuscorp Pty Ltd [2010] VSC 419 at [12]). [98] Fourthly, with respect to the other bases upon which leave may be sought, namely pursuant to s 38(5)(b)(ii) of the Act, there must be strong evidence that the arbitrator made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law. The fact that the reference to “error” in the context of these provisions is not qualified by the word “manifest” is not a basis, having regard to the provisions of ss 38 to 41 of the Act which constrain merits [page 224] appeals, for supposing that this second basis on which leave might be granted could be used to avoid the apparently stricter requirements of the first ground, where the reference to an error of law is qualified by the word “manifest” (citing Winter v Equuscorp Pty Ltd [2010] VSC 419 at [15]). [99] Fifthly, strong evidence means that it must be shown that there was a strong prima facie case that the arbitrator was wrong on a question of law and in this context the task of the Court is to assess the strength of the case for error, not to decide the case for error (citing Winter v Equuscorp Pty Ltd [2010] VSC 419 at [15]). In this case, the substantive dispute related to the construction of an underground water tank, a tennis court and associated landscaping works at a property in the affluent Melbourne suburb of Toorak. The plaintiffs, the owners of the property, commenced proceedings against the builder, alleging the builder caused them loss and damage in remedying and reinstating part of their property which lay at the bank of the Yarra river. The arbitral tribunal found in favour of the builder. The plaintiffs sought to appeal the arbitral award. The issues falling for consideration on the application for leave to appeal concerned whether the

second plaintiff (Mrs Chen) was a contracting party, whether the builder was aware of the detailed conditions in the planning permit, whether the builder contravened alleged duties of care in respect of compliance with the planning permit, whether the builder breached the conditions on the planning permit, the issue of compound interest and jurisdiction to order costs. The court refused to grant leave to the plaintiff on each proposed ground of appeal, on the basis the plaintiff had not established the requirements of s 38(5) of the Act. A number of other cases have considered a number of applications for leave to appeal awards under the former legislative regimes, with differing results. In Alvaro v Amaral (No 2) [2013] WASCA 232; BC201303381, the Court of Appeal dismissed an appeal against the order of a Master of the Supreme Court of Western Australia who refused to grant leave to appeal the partial award of an arbitrator under s 38 of the Commercial Arbitration Act 1985 (WA). The arbitrator’s partial award concerned whether the arbitrator had jurisdiction to act as an arbitrator and to determine the dispute relating to the construction of a house between the parties. The Master had concluded that there was no manifest error on the face of the award, which had determined that the builder was estopped from denying the existence of the arbitrator’s jurisdiction. The Master held that the arbitrator had dealt with the issue on the basis of estoppel, and that the builder had participated in the conduct of the arbitration. The Court of Appeal held that there was no error in the Master’s exercise of discretion and dismissed the appeal. In D & Z Constructions Pty Ltd v IHI Corp [2013] WASC 265 (S); BC201303219 the plaintiff applied for leave to appeal the interim award of an arbitrator pursuant to s 38 of the Commercial Arbitration Act 1985 (WA). The plaintiff alleged that the interim award, which concerned a dispute in connection with the construction of the Bluewaters Power Station in WA, contained manifest errors of law on the face of the interim award, and that the determination of those questions of law could substantially affect the rights of one or more parties to the arbitration agreement. The court refused to grant leave to appeal, on the basis the plaintiff had failed to establish on the grounds of appeal any manifest error on the fact of the award which could substantially affect the rights of one or more parties to the arbitration. The contract required the parties to monitor the actual costs incurred by them under the contract, and to take reasonable steps to minimise cost overruns in actual costs from the budget estimate. The arbitrator found that the burden of proving the claim for actual costs fell on the plaintiff, D & Z Constructions, and that he could not rely on the figures claimed by D & Z Constructions as reflecting the actual costs properly

payable under the contract. The court held that having regard to the award and the relevant contractual provisions, there had been no error on the face of the award by the arbitrator, and refused the application for leave to appeal. In Murray & Roberts Australia Pty Ltd v GB Lifestyles Pty Ltd [2013] WASC 345; BC201303334, the court granted an application for leave to appeal the interim award of an arbitrator pursuant to s 38 of the Commercial Arbitration Act 1985 (WA). The interim award [page 225] declared that the plaintiff had breached a contracted entered into between it and the defendant by failing to transfer a “blast unit” (a piece of equipment used in commercial painting) to the defendant in accordance with the terms of the contract. The court considered that there was a manifest error of law on the face of the award. The court considered that the documents other than the award itself should be taken to be incorporated into the award for the purposes of s 38 of the Act. These documents included the notice of reference to arbitration, the draft agreed statement of facts dated 26 October 2012 and the agreed statement of facts dated 26 November 2012. The court held that these documents were intended to form part of the interim award by the arbitrator because the arbitral award cannot be understood without reference to these documents. The central ground of the appeal related to the construction of the contract by the arbitrator as providing a call option to the defendant. It was submitted that this construction constituted a manifest error on the face of the award. The court held that it was strongly arguable that there had been a denial of procedural fairness arising from the arbitrator’s failure to allow the parties to make further submissions with respect to the interpretation of the contract, or to provide submissions or evidence on the question of whether the call option in respect of the blast unit was validly exercised. The court also held that this error of law would substantially affect the rights of the parties to the arbitration, also having regard to the arbitrator’s reliance on documents which were not agreed by the parties (in particular the draft statement of agreed facts which was not agreed to by both parties to the arbitration). In Mackay Sugar Ltd v Sugar Australia Pty Ltd [2013] QSC 233; BC201312554, the Supreme Court of Queensland granted leave to the plaintiff to appeal an arbitral award pursuant to s 38 of the Commercial Arbitration Act 1990 (Qld) on the basis the arbitrator had failed to give adequate reasons. The

arbitration related to a contract for the supply of raw sugar that was disrupted by unseasonal weather. The court considered that the arbitrator had given inadequate reasons which amounted to a manifest error on the face of the award. Conversely, in Civil Mining & Construction Pty Ltd v Queensland [2013] QSC 214; BC201312099, the court refused an application to set aside an arbitral award under the former s 38(4)(b) of the Commercial Arbitration Act 1990 (Qld). The substantive dispute the subject of an arbitral award related to disputed variations under a large scale government construction contract. [s 34A.95] Manifest error on the face of the award Unlike s 38 of the repealed Act, the expression “manifest error on the face of the award” is not present in s 34A of the Act. The word “manifest” where it is used in s 38(5)(b)(i) carries significant meaning which is not to be read down or effectively ignored. The phrase “manifest error of law on the face of the award” (see the English Arbitration Act 1979 and the Commercial Arbitration Act 1984 (NSW)) was considered to be one which is”evident or obvious rather than one which is arguable”: Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203 This was reaffirmed by the High Court in Westport Insurance Corp v Gordian Runoff Ltd (2011) 244 CLR 239; 281 ALR 593 where the majority stated, at [42]: . . . but the words “a manifest error of law on the face of the award” comprise a phrase which is to be read and understood as expressing one idea. An error of law either exists or does not exist; there is no twilight zone between the two possibilities. But what is required here is that the existence of error be manifest on the face of the award, including the reasons given by the arbitrator, in the sense of apparent to that understanding by the reader of the award. . . [s 34A.100] Need strong evidence, in the form of a strong prima facie case showing something more than obvious error Once this element is established consideration is given to determining the question (of law) “may add or be likely to add substantially to the certainty of commercial law”. The proper interpretation of s 22(2) of the repealed Act was held to be significant in adding to the certainty of commercial law and satisfying s 38(5)(b)(ii) requirements: see now s 34A(3)(c)(ii) of the Act.

[page 226] [s 34A.105] Subsection 34A(6) Under s 34A(6) the appeal period is three months from the date of receipt of the award within which time period an appeal must be lodged. If a request had been made for the correction or interpretation of the award or for an additional award under s 33, from the date on which that request had been disposed of by the arbitral tribunal. This is the same period of time under s 34 of the Act (see [s 34.75]). Following the approach taken under s 34 of the Act, this time period should also be strictly adhered to. [s 34A.110] Subsection 34A(7) Under s 34A(7) the orders that the court may make on determining an appeal against an award are set out in paras (a)– (d): see M Mustill and S Boyd, Commercial Arbitration, 2nd ed, LexisNexis Butterworths, 1989, 616–20. The court may confirm the award under s 34A(7)(a). In doing so the court is not making any variations or adjustments to the award. The court may vary the award under s 34A(7)(b). This occurs where the court differs from the decision of the arbitrators to the extent that, on one or more issues the award was incorrect on a matter of law and the duty of the court was to vary it. The court when considering the question of law on the subject of appeal, if the reasons of the arbitrator were inadequate, may remit the award to the arbitrator for reconsideration by that arbitrator, or arbitrators, or by a new arbitrator if one has been appointed under s 34A(7)(c): see Westport Insurance Corp v Gordian Runoff Ltd (2011) 244 CLR 239; 281 ALR 593 at [59]. The court may set aside the award in whole or in part under s 34A(7)(d). This occurs where the court considers that the award, in whole or in part, was incorrect and in the interests of justice the setting aside of the award was appropriate. The power under s 34A(7)(d) is subject to s 34A(8). If the award is set aside, it is then possible for the court to remit the matter back to the same arbitrator, who has some considerable knowledge of the matter and may dispose of it in a shorter time and at less expense than a new arbitrator. McPherson J said in Re Scibilia and Lejo Holdings Pty Ltd [1985] 1 Qd R 94 at 102: [A]s is said by Mustill & Boyd in the passage from their book earlier referred to, the effect of the order setting aside the award is that the arbitration reverts to the position in which it stood immediately before the arbitrator published his award. At that stage the arbitrator is not functus officio and is therefore

entitled to reconsider the award, which ex hypothesi is to be regarded as not then made. In Alvaro v Temple [2009] WASC 205, Murphy J noted that a different view has been taken in England to the setting aside of an award, and stated, at [69]– [70], that “an order setting aside the award not only avoids the award, but also desseizes the arbitrator of the reference” so that to avoid any doubt, it may be prudent to order a remitter expressly. See also Sabemo Pty Ltd v Malaysia Hotel (Aust) Pty Ltd (NSWSC, Giles J, 4 June 1992, unreported). The authorities referred to above were followed by McMurdo J in Sugar Australia Pty Ltd v Mackay Sugar Ltd [2012] QSC 38 when setting aside an award and remitting it to the arbitrator for further consideration. The arbitrator had failed to hear submissions on a matter fundamental to the decision on liability. The parties had not considered the matter relevant and had failed to address it. It was held that the conduct of the arbitrator amounted to a breach of natural justice sufficient to set aside the award under s 42 of the Commercial Arbitration Act 1990 (Qld). If after the award has been remitted to the same arbitrator and an amended interim award has been produced, leave to appeal may be granted but if there is some evidence in support of the award the appeal will fail: see Alvaro v Temple [2012] WASC 98. [s 34A.115] Subsection 34A(8) Under s 34A(8) the court must not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matter in question to the arbitrators for reconsideration. The aim of the subsection is to avoid unnecessary costs if severance, in whole or part, occurs and to keep the arbitration alive, and the arbitrators reconsidering the remitted award. For severance, see also s 34(2)(a) (iii) and the annotations following. [page 227] [s 34A.120] Subsection 34A(9) Under s 34A(9) where the award is remitted back to the arbitrator or arbitrators then, unless the order otherwise directs, the arbitrators must make the award within three months after the date of receipt of the order. The time frame in which the arbitrator must make the award is the same as that for the appeal period in subs (6).

[s 34A.125] Subsection 34A(10) Under s 34A(10) the court may grant leave subject to any conditions it considers appropriate. This wide discretion allows the court to adjust this procedure for particular facts and circumstances that in applications for leave to appeal and in appeals against awards. [s 34A.130] Subsection 34A(11) If an award is varied on appeal under s 34A, the award has the effect, except for the purposes of s 34A, as if it were the award of the arbitrator: see Westport Insurance Corp v Gordian Runoff Ltd (2011) 244 CLR 239; 281 ALR 593 at [58], [59].

PART 8 — RECOGNITION AND ENFORCEMENT OF AWARDS

Recognition and enforcement 35 (cf Model Law Art 35)

(1) An arbitral award, irrespective of the State or Territory in which it was made, is to be recognised in this State as binding and, on application in writing to the Court, is to be enforced subject to the provisions of this section and section 36. (2) The party relying on an award or applying for its enforcement must supply the original award or a copy of the original award. (3) If the award is not made in English, the Court may request the party to supply a translation of it into English. Note So much of Art 35(2) of the Model Law as provides for the translation of an award that is not in the official language of the enforcing State has been modified.

ANNOTATIONS [s 35.5] Article V of the New York Convention similar to s 34 Article V of the New York Convention, which was incorporated in s 8 of the IAA, had also been incorporated in s 36 of the Act concerning recognition and enforcement of

awards. The New York Convention has been adopted in many countries, including Australia (by the IAA), and is the basis for the recognition and enforcement of international arbitral awards in most countries of the world (see the Appendix for the text of the New York Convention). For background and history as to the drafting and implementation of the New York Convention, generally, see A J van den Berg, The New York Arbitration Convention of 1958, Towards a Uniform Judicial Interpretation, Wolters Kluwer, 1981; and R Wolff (Ed), The New York Convention: A Commentary, Beck/Hart Publishing, 2012. The Act only applies to domestic arbitral awards, not international arbitral awards: see paragraph in relation s 1 of theAct above. This is made clear from the wording of s 35(1), which refers to awards made in a “state or territory”. The prima facie right to recognition and enforcement of an arbitral award is consonant with the common law view that the issuing of an arbitral award gives rise to an implied promise that the award will be honoured: Andent Pty Ltd v Thornhill Machine Tools Australia Pty Ltd [2014] VSC 647; BC201410774 at [17] citing Agromet Motoimport Ltd v Maulden Engineering Co (Beds) Ltd [1985] 2 All ER 436; 1 WLR 762 where Evans LJ said: [page 228] . . . Conceptually the claim arises under a contractual undertaking to honour the award. This may mean that the party against whom the award is made becomes under an immediate obligation to pay the amount of the award, which strictly should be construed as a liquidated debt obligation. Alternatively, if the claim is for damages for breach of the implied promise to pay then a reasonable period should be allowed for the necessary payment to be made. This period would be co-extensive with whatever is allowed by “forthwith”. If regard is had to the time need for the payment process, then this period might be, say, 28 days. It could hardly be longer than, say, three months. [s 35.10] Recognition of arbitral award Recognition occurs in arbitration law when a state recognises an arbitral award made in another state. In the Act, adopting the same approach with respect to recognition and enforcement as the New York Convention, an arbitral award made in one Australian state or territory is recognised by all other state or territory courts as binding in regard to the subject matter of that dispute. Recourse against the award can only be made

under s 34 and the award appealed against under s 34A. Upon recognition, the parties are bound by the award and the doctrine of res judicata applies allowing the successful party to claim issue estoppel: see K R Handley, The Doctrine of Res Judicata, 4th ed, Butterworths LexisNexis, Sydney, 2009. Recognition can be characterised as a defensive process such as might arise when a party seeks to litigate a dispute that has been the subject of an arbitral award: see N Blackaby, C Partasides, A Redfern, and M Hunter, Redfern and Hunter on International Arbitration, 5th ed, Oxford University Press, 2009, pp 627–8, as cited in Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 43 WAR 91; 287 ALR 315; [2012] WASCA 50 at [58]. See also [s 35.15] and the Case Study: TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 311 ALR 387; [2014] FCAFC 83; BC201405606. [s 35.15] Enforcement Enforcement is the process whereby the court makes orders enforcing the award so as to ensure compliance with the terms of the award. This is an important stage for a party who seeking damages to be paid pursuant to the terms of the award. Enforcement goes further than recognition and enables the powers of the court to be applied to ensure compliance with the terms of the award: (See: Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 43 WAR 91; 287 ALR 315; [2012] WASCA 50 at [58]). Section 3(2) of the Act provides that “enforcement” includes “recognition”. In Australia when “enforcement” of a foreign award is under consideration, there is no need to regard the concepts of “recognition” and “enforcement” as separate concepts requiring separate treatment. The latter in incorporates the former. “Enforcement” means applying legal sanctions to compel the party against whom the award has been made to carry out its obligations thereunder. [s 35.20] Prescriptive language The language of s 35(1) is prescriptive: an “arbitral award . . . is to be enforced” subject to the provisions of ss 35 and 36. Contrast this with s 33(1) of the repealed Act which provided that an “award . . . may, by leave of the court, be enforced”. With respect, the approach taken towards s 33 of the repealed Act, as set out in Rolfe J’s judgment in Cockatoo Dockyard Pty Ltd v Commonwealth (No 3) (1994) 35 NSWLR 689 at 695-6, was, in effect, pro-arbitration; however, the wording of the provision ensured that there was no certainty as to whether an arbitral award would be enforced. See, for example, ACD Tridon Inc v Tridon Australia [2003] NSWSC 1230. [s 35.25] “court” Court is not defined in this Act. Generally, the word “court” would mean the Supreme Court of the relevant state or territory.

Supreme Courts of the states and territories have power to hear applications in relation to arbitrations including the recognition and enforcement of arbitral awards. In the Rules of the Supreme Court in most states and territories there are rules applicable to applications under the Commercial Arbitration Act for that state or territory. It is envisaged that [page 229] these rules will be modified to include applications under this Act. In Victoria there is a separate list of the Commercial Court dedicated to arbitrations which is under the supervision of Croft J. In New South Wales there is also a similar list. The Supreme Courts of the states and territories are also empowered to also enforce international arbitral awards which fall under the umbrella of the IAA. See s 8(2) and (3); and also, Passlow v Butmac Pty Ltd [2012] NSWSC 225. See also discussion at [s 8.15B] of Subway Systems Australia Pty Ltd v Ireland [2014] VSCA 142. [s 35.30] Federal Court of Australia — enforcement of arbitral awards An international arbitral award can be enforced in the Federal Court of Australia if the requirements set out in s 8(5), (7) and (9) of the IAA are met. There is no requirement for leave to enforce a foreign award following the International Arbitration Amendment Act 2010 (Cth). The amendments make clear that courts charged with the responsibility of enforcing an award under the IAA might refuse to enforce such an award only in the limited circumstances mentioned in s 8(5) and 8(7) of the IAA. There is no general discretion unrelated to the grounds specified in s 8(5) and 8(7) reposed in those courts to refuse to enforce such an award. The IAA does not prescribe any procedure for registering a foreign award in the records of this court nor does it lay down any process or procedure for “recognising” a foreign award. The emphasis is on “enforcement”. Section 3(2) provides that “enforcement” includes recognition, and accommodates the relevant language of Arts IV, V and V1 of the New York Convention. Following the introduction of the International Arbitration Amendment Act 2010 (Cth), the Federal Court of Australia has taken, what can only be described as, a “pro-arbitration” approach to enforcement of international arbitral awards. In Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) (2012) 201 FCR 535; 291 ALR 99; [2012] FCA 276, Foster J said, at [72]:

. . . Section 8(3) should, therefore, be interpreted to mean: Subject to Pt II of the IAA, a foreign award (as defined in the IAA), may be enforced in the Federal Court of Australia as it would be if it were a judgment order of this court. That is to say, such an award is not, and is not deemed to be, by dint of the operation of s 8(3) alone, a judgment or order of this court. Steps have to be taken to render it such a judgment or order. But, once those steps have been taken, the terms of the decision embodied in the award become a judgment or order of this court. That judgment or order must reflect the Award and cannot differ in any material way from the terms thereof. Section 53 of the Federal Court Act defines the term “judgment” to include “a judgment, degree or order whether final or interlocutory”. The judgment will be a formal order made by the court which disposes of, or deals with the preceding then before it: Moller v Roy (1975) 132 CLR 622 at 639 per Mason J; and see also the references to “judgment” in s 35 of the Judiciary Act 1902 (Cth) and in s 73 of The Constitution. Section 53 also provides that the person in whose favour a judgment of the court is given is entitled to the same remedies for enforcement of the judgment in a state or territory, by execution or otherwise, as are allowed in like cases by the laws of that state or territory to persons in whose favour a judgment of the Supreme Court of that state or territory is given. The presence of the judgment is the starting point for the engagement of r 41.10 of the Federal Court Rules 2011 and the equivalent state or territory Supreme Court Rules. There must be a judgment in terms of the award or the application for such relief dismissed on the grounds specified in s 8(5) or (7) of the IAA: see s 36(1) and (2) of the Act. [s 35.35] Subsection 35(2) The original, or a copy of the original award, must be filed at the court when seeking recognition or the enforcement of an award. Where a party can furnish proof of the award, there is a strong presumption in favour of the enforcement of the award: see the decision of Foster J in Traxys Europ SA v Balaji Coke Industry Pvt Ltd (No 2) (2012) 201 FCR 535; 291 ALR 99; [2012] FCA 276. [s 35.40] Subsection 35(3) If the award to be recognised or enforced is not in English the court may request a translation into English. [page 230]

[s 35.45] Time limit to bring an enforcement proceeding The time limit for initiating a proceeding to enforce an arbitral award is set out in s 5(1)(c) of the Limitation of Actions Act 1958 (Vic): 5. Contracts and torts (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued— . . . (c) Actions to enforce an award, where the submission is not by an instrument under seal; (See: also Limitation Act 1974 (Tas), s 4(1); Limitation of Actions Act 1936 (SA), s 35(a) for a 6 year period to enforce; but see: Limitation Act 1969 (NSW), s 20; and Limitation Act 1981 (NT), s 18(2); Limitation Act 1985 (ACT) for a 12 year period to enforce).

Grounds for refusing recognition or enforcement 36 (cf Model Law Art 36)

(1) Recognition or enforcement of an arbitral award, irrespective of the State or Territory in which it was made, may be refused only— (a) at the request of the party against whom it is invoked, if that party furnishes to the Court proof that— (i) a party to the arbitration agreement was under some incapacity, or the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication in it, under the law of the State or Territory where the award was made; or (ii) the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present the party’s case; or (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted

to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the State or Territory where the arbitration took place; or (v) the award has not yet become binding on the parties or has been set aside or suspended by a court of the State or Territory in which, or under the law of which, that award was made; or (b) if the Court finds that— (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or (ii) the recognition or enforcement of the award would be contrary to the public policy of this State. [page 231] (2) If an application for setting aside or suspension of an award has been made to a court referred to in subsection (1)(a)(v), the Court may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the party to provide appropriate security.

ANNOTATIONS [s 36.5] Limited grounds for refusing recognition and enforcement of arbitral award There are only very limited grounds on which a Supreme Court of a state or territory can refuse recognition or enforcement of an arbitral award. This approach accords with that under the New York Convention with respect to the enforcement of foreign arbitral awards. Historically speaking, Australian courts have been concerned to adopt a narrow approach to the grounds for refusing recognition and enforcement of an arbitral award. This was explored in Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd (2011) 277 ALR 415; [2011] FCA 131 in the context of an application to

enforce an international arbitral award. Foster J then referred to the decision of McDougall J in Corvetina Technology Ltd v Clough Engineering Ltd (2004) 183 FLR 317; [2004] NSWSC 700 as an example of the conservative and outdated approach, and where McDougall J said, at [18]: . . . The very point of provisions such as s 8(7)(b) is to preserve to the court in which enforcement is sought, the right to apply its own standards of public policy in respect of the award. In some cases the inquiry that is required will be limited and will not involve detailed examination of factual issues. In other cases, the inquiry may involve detailed examination of factual issues. But I do not think that it can be said that the court should forfeit the exercise of the discretion, which is expressly referred to it, simply because of some “signal” that this might send to people who engage in arbitrations under the Act. In Uganda Telecom Limited, above, Foster J concluded, at [132], that despite the traditional view towards arbitration, the legislative changes introduce to arbitration (which applied to both domestic and international arbitration in Australia) a pro-arbitration approach needs to be taken: Whether or not, in 2004, there was a general discretion in the court to refuse to enforce a foreign award which was brought to the court for enforcement, the amendments effected by the 2010 Act make clear that no such discretion remains. Section 8(7)(b) preserves the public policy ground. However, it would be curious if that exception were the source of some general discretion to refuse to enforce a foreign award. While the exception in s 8(7)(b) has to be given some room to operate, in my view, it should be narrowly interpreted consistently with the United States cases. The principles articulated in those cases sit more comfortably with the purposes of the Convention and the objects of the Act. To the extent that McDougall J might be thought to have taken a different approach, I would respectfully disagree with him. Foster J also repeated his pro-arbitration approach views in the more recent decision of Traxys Europ SA v Balaji Coke Industry Pty Ltd (No 2) (2012) 201 FCR 535; 291 ALR 99; [2012] FCA 276. The pro-arbitration approach of the current legislation is clear from the opening words in s 36(1) that recognition or enforcement of an arbitral award “may be refused only” (emphasis added) if the grounds in that subsection have been made out.

[s 36.10] Burden of proof on party resisting recognition and/or enforcement The party resisting an application for recognition and/or enforcement bears the burden of proof if the successful party files with the court in support of its application the original or a copy of the original award. This is clear from the wording of s 36(1)(a), “. . . if that party furnished to the court proof that . . .”. See Foster J in Traxys Europ SA v Balaji Coke Industry Pvt Ltd (No 2) (2012) 201 FCR 535; 291 ALR 99; [2012] FCA 276; cf with IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (2011) 282 ALR 717; 253 FLR 9; [2011] VSCA 248. [page 232] Contrast this with the wording of s 8 of the IAAwhich requires the party resisting to prove “to the satisfaction of the court”: see Dampskibsselskabet Nordon A/S v Gladstone Civil Pty Ltd (2013) 216 FCR 1 469; [2013] FCAFC 107; BC201313043 at [78]–[84]. [s 36.15] Implied term to perform arbitration award In Antclizo Shipping Corporation v The Food Corporation of India [1998] WASC 342, the plaintiff sought to enforce the award as a form of action based on breach of contract. The limitation period, under s 38(1)(c)(i) of the Limitation Act 1935 (WA) for a contract not under seal is six years. The charter party was a simple contract. It was not under seal. The decision of IBSSL v Minerals Trading Corp of India [1996] 1 All ER 1017 was followed, where Evans LJ had said, at 1022: . . . [C]onceptually the claim arises under a contractual undertaking to honour the award. This may mean that the party against whom the award is made becomes under an immediate obligation to pay the amount of the award, which strictly should be construed as a liquidated debt obligation. Alternatively, if the claim is for damages for breach of the implied promise to pay, than a reasonable period should be allowed for the necessary payment to be made. This period would be co-extensive with whatever is allowed by “forthwith”. If regard is had to the time need for the payment process, then this period might be, say, 28 days. It could hardly be longer than, say, three months. [s 36.20] Limitation periods In regard to limitation periods, see P Handford, Limitation of Actions — the Laws of Australia, 3rd ed, Lawbook Co,

2011. Grounds for refusal The grounds include the following: (i) incapacity (s 36(1)(a)(i)); (ii) the arbitral agreement is invalid under the law the parties have subjected it to or, failing any such indication, the law where the award was made (s 36(1)(a)(i)); (iii) improper notice of appointment of arbitrator (s 36(1)(a)(ii)); (iv) improper notice of arbitral proceedings (s 36(1)(a)(ii)); (v) a party is unable to present its case at the arbitration (s 36(1)(a) (ii)); (vi) the award deals with dispute not contemplated by or falling in the terms of the submission to arbitration (s 36(1)(a)(iii)); (vii) the award contains decisions on matters beyond the scope of the submission to arbitration (s 36(1)(a)(iii)); (viii) the composition of arbitral tribunal not in accordance with the arbitration agreement ((s 36(1)(a)(iv)); (ix) the arbitral procedure was not in accordance with the agreement of the parties (s 36(1)(a)(iv)); (x) the award not yet binding or has been set aside or suspended (s 36(1)(a)(v)); (xi) the court finds that the subject-matter of the dispute is not capable of settlement by arbitration under the law of the state/territory (s 36(1)(b)(i)); or (xii) or the recognition or enforcement of the award would be contrary to the public policy of the state/territory (s 36(1)(b) (ii)). It is important to note that the grounds set out in s 36(1)(a)(i)–(v) must be established by the party seeking to resist enforcement of the award. The grounds set out in s 36(1)(b)(i) and (ii) may be found by the court itself; with no necessary implication of onus with respect to the parties. [s 36.25]

[s 36.30] Grounds for refusing recognition or enforcement of an award The grounds for refusing recognition or enforcement of an award under s 36 are the same as the grounds for setting aside an award under s 34(2)(a)(i)–(iv) (see s 34(2)(a) for details of grounds (i)–(iv)) with the addition in s 36(1)(a)(v)). The grounds in s 36 are similar to, but not identical to, the grounds for refusing

recognition or enforcement of interim measures under s 17I of the Act. In Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd [2011] NSWSC 1331, Hammerschlag J rejected Lloyd’s reliance on s 36(1)(a)(iii) that the award deals with a dispute not contemplated by, [page 233] or not falling within, the terms of the submission to arbitration after considering the terms of the Licencing Agreement entered into by the parties, especially cl 5.4(a). (See: s 36(1)(b)(ii).) [s 36.35] Section 36(1)(a)(v) This ground is: (v) the award has not yet become binding on the parties or has been set aside or suspended by a court of the state or territory in which, or under the law of which, that award was made, or . . . The award may not be binding on the parties for various reasons including that it may be an interim or interlocutory award and is not a final award that resolves the dispute between the parties: see Resort Condominiums International Inc v Bolwell [1995] 1 Qd R 406 at 415; (1993) 118 ALR 655. Alternatively, if the award is set aside by a court of a state or territory in which or under which the award was made then these are sufficient reasons why the court will not recognise or enforce the award. Section 36(1)(a)(v) is read in conjunction with s 36(2). Where an award has been set aside by a court in another state or territory, it is most likely that the award can not be enforced. The general principle is that an award that has been set aside by the court at the seat of arbitration means the award is annulled. A recent and vexed issue has arisen with respect to international arbitral awards where the award, despite it being set aside by a court in the seat of the arbitration, has still been enforced by a court of a different nation state: see, for example, Yukos Capital SARL v OJSC Rosneft Oil Company [2012] EWCA Civ 855. Although it is theoretically possible for a court in Victoria to enforce a domestic award rendered in New SouthWales, but set aside by the NSW Supreme Court, it is a most unlikely scenario with respect to domestic awards. [s 36.40] Is recognition/enforcement needed in the state/territory where the award was made before recognition and/or enforcement in another

state/territory? Following the New York Convention it will not be necessary to obtain recognition or enforcement in the state or territory where the award was made before it can be enforced in another state/territory. The New York Convention does not seek to regulate the enforceability of arbitral awards in the state in which the award is made which, in a sense, follows from the abandonment of the double exequatur approach as originally adopted in the Geneva Convention on the Execution of Foreign Awards of 1927. This shedding of the double exequatur was an advance in internationalisation and “delocalisation” that the New York Convention does not seek to limit more favourable recognition or enforcement provisions under any local law, treaty or otherwise. (See: A van den Berg, The New York Arbitration Convention of 1958, Kluwer, 1981 and A Tweedale and K Tweedale, Arbitration of Commercial Disputes, Oxford University Press, 2005.) [s 36.45] The state or territory in which, or under the law of which, that award was made. The Model Law adopted Art V(1)(e) of the New York Convention that allows any party to an arbitration to apply to any court having jurisdiction, for an order confirming the award unless one of the grounds for deferral of recognition or enforcement apply. [s 36.50] Under the law of which, that award was made . . . The phrase “under the law of which” has been held to be exclusively procedural and not substantive law under which the arbitration was conducted and not the substantive law of the contract: see International Standard Electric Corp (ISEC) v Bridas Sociedad Anonima Petrolera, Industrial y Commercial 745 F Supp 172 (SDNY) (1990) at 178; M & C Corp v Ewin Behr GmbH & Co 87 F 3d 844 (6th Cir) (1996). [s 36.55] Applicant does not have to prove that there are assets within the enforcement jurisdiction In Traxys Europ SA v Balaji Coke Industry Pvt Ltd (No 2) (2012) 201 FCR 535; 291 ALR 99; [2012] FCA 276, in rejecting Balaji Coke Indstry Pvt Ltd’s submission that the court could not entertain the application to enforce a foreign award unless the court was first satisfied that there are assets in Australia against which execution might be levied Foster J said, at [82]–[83]: [page 234]

[82] There is nothing in the IAA that, as a matter of law, prevents an Australian court from directing the entry of judgment or the making of an order in the terms of the relevant award if there is evidence which proves that, at that time such a judgment is entered or such an order is made, there may be or, even, definitely are, no assets within Australia against which execution might be levied. [83] The ordinary entitlement of a successful party in litigation to a judgment is a fundamental entitlement and is not dependent upon that party proving to the satisfaction of the court that there are likely to be assets available to the judgment creditor at any particular time against which execution might be levied. The litigious process which culminates in the entry of judgment or the making of an order and the processes of living execution in order to obtain satisfaction in respect of that judgment or order are quite separate processes. [s 36.60] Subsection 36(1)(b) — arbitrability or public policy grounds Under s 36(1)(b) there are two grounds for refusing enforcement of an award. First, if the court finds that the matter is not capable of settlement by arbitration under the laws of the state. The issue under s 36(1)(b)(i) is one of the arbitrability of the dispute (see [s 36.65] and [s 34.65]). Second, the alternative ground is that where recognition and enforcement is contrary to public policy, in which case recognition and enforcement may be refused. The “public policy” ground has been the basis of many applications seeking to resist enforcement of an arbitral award. This is certainly the case with respect to international arbitral awards. As Foster J observed in Traxys Europ SA v Balaji Coke Industry Pvt Ltd (No 2) (2012) 201 FCR 535; 291 ALR 99; [2012] FCA 276, the “public policy” ought not be given a broad interpretation, lest it undermines certainty and efficiency that arbitration provides. His Honour said, at [90]: Clearly the pro-enforcement bias of the Convention, as reflected in the IAA, requires that the public policy ground for refusing enforcement not be allowed to be used as an escape route for a defaulting award debtor. That ground should not be made available too readily, lest it undermine the purpose of encouraging and facilitating the enforcement of foreign arbitral awards embodied in the Convention and in the IAA. As previously observed, arbitration facilitates international trade and commerce by providing an efficient and certain dispute resolution process to commercial parties. If the enforcement of awards is to be subjected to the vagaries of the entire domestic

public policy of the enforcement jurisdiction, there is the potential to lose all of the benefits of certainty and efficiency that arbitration provides and which international traders seek. [s 36.65] “Under the law of this state . . .” The words “this state” refer to the state in which recognition or enforcement is sought. This issue raises the concept of arbitrability, whether the dispute is capable of resolution by arbitration. Although it may seem like an unlikely event, there may be in circumstances when an arbitral award made in one state cannot be enforced in another due to the question of arbitrability. For example, the parties may agree to hold an arbitration in Western Australia with West Australian law to apply to the substantive arguments as well as being the lex arbitri. However, the dispute is in fact in relation to a leased property located in Victoria. Under the Retail Leases Act 2003 (Vic) (RLA), any retail tenancy dispute concerning retail premises in Victoria is governed by the RLA. Further, under the RLA, the Victorian Civil and Administrative Tribunal (VCAT) has exclusive jurisdiction to decide all retail tenancy disputes. Therefore, it may be the case that an arbitral award rendered in Western Australia dealing with retail premises in Victoria may not be enforced by the Victorian Supreme Court on the basis of arbitrability. [s 36.70] Contrary to the public policy of this state The parameters of what constitutes public policy are not clarified by the Act. Contrast this with s 8(7A) of the IAA which assists with a provision that public policy includes, though is not limited to: [page 235] (a) the making of the award was induced or affected by fraud or corruption; or (b) a breach of the rules of natural justice occurred in connection with the making of the award. In Hebei Import and Export Corporation v Polytek Engineering Co Ltd [1999] HKCFA 16 (Hebei), Bokhary PJ said, at [27]: In my view there must be compelling reasons before the enforcement of a Convention award can be refused on public policy grounds. But the reasons must go beyond a minimum which would justify setting aside a domestic

judgment or award. A point to similar effect was made in a comparable context by the United States Supreme Court in Mitsubishi Motors Corp v Soler Chrysler-Plymouth Inc [1985] USSC 203; 473 US 614 (1985). The leading decision in the United States of America on the public policy defence in Art V of the New York Convention is Parsons & Whittemore Overseas Co, Inc v Société Générale De L’Industrie Du Papier (RAKTA) [1974] USCA2 836; 508 F 2D 969 (2D Cir) (1974) (Parsons) at 974 where the court held that the enforcement of foreign arbitral awards should only be refused where enforcement would “violate the forum state’s most basic notions of morality and justice”. The court went on to say, at 974: In equating “national” policy with United States “public” policy, the appellant quite plainly misses the mark. To read the public policy defense as a parochial device protective of national political interests would seriously undermine the Convention’s utility. This provision was not meant to enshrine the vagaries of international politics under the rubric of “public policy”. Rather, a circumscribed public policy doctrine was contemplated by the Convention’s framers and every indication is that the United States, in acceding to the Convention, meant to subscribe to the supranational emphasis. Cf Scherk v Alberto-Culver Co [1974] USSC 173; 417 US 506, 94 S Ct 2449; 41 L.Ed 2d 270 (1974). (Moreover, the facts here failed to demonstrate that considered government policy forbids completion of the contract itself by a private party). To deny enforcement of this award largely because of the United States’ falling out with Egypt in recent years would mean converting a defense intended to be of narrow scope into a major loophole in the Convention’s mechanism for enforcement. We have little hesitation, therefore, in disallowing Overseas’ proposed public policy defence. The court in Parsons applied the principle that the relevant public policy to be applied is that of the enforcement state. However, the court in Parsons went on to explain that the public policy to be applied is not the entirety of the public policy of the domestic jurisdiction. Enforcement is only to be refused on the basis that the “most basic notions of morality and justice” have been violated: see also MGM Productions Group Inc v Aeroflot Russian Airlines (2004) WL 234871. In Hebei, when refusing to grant relief to a defendant on public policy grounds, Bockhary PJ said, at [31], that: Before a Convention jurisdiction can, in keeping with its being a party to the

Convention, refuse enforcement of a Convention award on public policy grounds, the award must be so fundamentally offensive to that jurisdiction’s notions of justice that, despite its being a party to the Convention, it cannot reasonably be expected to overlook the objection. Consistently with the authorities to which reference has been made in Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) (2012) 201 FCR 535; 291 ALR 99; [2012] FCA 276, Foster J said, at [105]: Thus, in my view, the scope of the public policy ground of refusal is that the public policy to be applied is that of the jurisdiction in which enforcement is sought, but it is only those aspects of public policy that go to the fundamental, core questions of morality and justice in that jurisdiction which enliven this particular statutory exception to enforcement. The public policy ground does not reserve to the enforcement court a broad discretion and should not be seen as a catch-all defence of last resort. It should not be used to give effect to parochial and [page 236] idiosyncrasy tendencies of the courts of the enforcement state. This view is consistent with the language of s 8(7), the terms of s 8(7A), the text of Art V(2) of the Convention, the fundamental objects of the Convention and the objects of the IAA. This approach also ensures that due respect is given to Convention-based awards as an aspect of international comity in our interconnected and globalised world which, after all, are the product of freely negotiated arbitration agreements entered in to between relatively sophisticated parties. In Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd [2011] NSWSC 1331, Hammerschlag J rejected a submission by Lloyd that recognition and enforcement of a number of paragraphs of the award would be contrary to the public policy of New South Wales, as the complaints did not pertain to the state’s basic notions of morality and justice with which public policy is more appropriately concerned; see Resort Condominiums International Inc v Bolwell [1995] 1 Qd R 406; (1993) 118 ALR 655 at 676 per Lee J; see also Deutsche Schachtbau-und Tiefbohr-Gessellschaft mbH v Ras Al-Khaimah National Oil Co [1990] 1 AC 295 at 316 per Lord Donaldson MR.

[s 36.75] Subsection 36(2) Subsection 36(2) is to be read in conjunction with s 36(1)(a)(v), so that if an application has been made under s 36(1)(a)(v), the court has a discretion to adjourn its decision and on application of the party claiming recognition or enforcement of the award order the other party to provide appropriate security. The court exercises its discretion by weighing various factors. In Toyo Engineering Corp v John Holland Pty Ltd [2000] VSC 553, Byrne J held that the fact that the adjournment was only for a short time was the determinative factor. Rolfe J in Hallen v Anggledal [1999] NSWSC 552 held that the party resisting the application had to show more than that an application in relation to the award had been made in the place where the award was made. Full details of any such application are needed including the result of the application. [s 36.80] Effects of a failure to challenge the award or an unsuccessful challenge of the award Because the grounds to resist recognition or enforcement of an award under s 36 mirror the grounds to challenge an award under s 34, there is a real question as to whether a party, which has either: (a) failure to challenge the award; or (b) been unsuccessful in its challenge of the award; is effectively estopped from resisting the enforcement of the award.

PART 9 — MISCELLANEOUS

Death of party 37 (1) Unless otherwise agreed by the parties, if a party to an arbitration agreement dies the agreement is not discharged (either as respects the deceased or any other party) and the authority of an arbitral tribunal is not revoked by the death but that agreement is enforceable by or against the personal representative of the deceased. (2) Nothing in subsection (1) affects the operation of any enactment or rule of law by virtue of which a right of action is extinguished by the death of a person. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS

[s 37.5] Unless otherwise agreed by the parties The parties have the power to opt-out of this section. Some parties may prefer to do so and rely on the common law position. [s 37.10] Common Law position altered Section 37 follows s 52 of the Commercial Arbitration Act 1984 in altering the common law position. The repealed Act followed the English position described in M Mustill and S Boyd, Commercial Arbitration, 2nd ed, LexisNexis Butterworths, 1989 at 267: [page 237] At common law an arbitration agreement and a submission of a dispute to arbitration were both brought to an end by the death of one of the parties. That rule was reversed by the Arbitration Act 1934, which was re-enacted in the Arbitration Act 1950 s 2(1). Section 2(3) of the 1950 Act preserved the statutory and common law rules by virtue of which causes of action were extinguished on death. The Arbitration Act 1996 s 8 re-enacts, with improved drafting, the Arbitration Act 1950 s 2(1) and (3). The law is unchanged except that the provision is no longer mandatory, where upon the death of a party the arbitration agreement is discharged. Also upon the death of a party the referral of the dispute to arbitration is terminated. [s 37.15] Enforcement against the legal personal representative of the deceased Upon the death of a party the arbitration agreement can be enforced by or against the legal personal representative of the deceased. [s 37.20] Subsection 37(2) does not alter the existing law The existing law under enactment or rule of law is not affected by s 37(1).

Interpleader 38 Where relief by way of interpleader is granted in any court and it appears to that court that the claims in question are matters to which an arbitration agreement (to which the claimants are parties) applies, the court must, unless it is satisfied that there is sufficient reason why the matters should not be referred to arbitration in accordance with the agreement, make an order directing

the issue between the claimants to be determined in accordance with the agreement. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 38.5] Interpleader Interpleader is proceeding to determine the rights of claimants, by which a person who is sued regarding some property or debt can require competing claims to that property or debt to resolve their rights. The interpleading party must have control of property but have no interest in it. The interpleader may fear injury of conflicting claims and called upon the other parties to claim against each other so that the title to the property or debt is decided: see Concise Australian Legal Dictionary, 4th ed, LexisNexis, Sydney 2011. [s 38.10] Interpleader is governed by the rules of the court The Rules of the Supreme Court or the Federal Court of Australia govern the use of an interpleader. [s 38.15] Court must be satisfied there is sufficient reason why matter should not be referred to arbitration The court is required to send an interpleader to arbitration unless it is satisfied there is a sufficient reason or reasons the matter should not referred to arbitration, in accordance with the arbitration agreement. [s 38.20] No provision in Model Law There is no equivalent to this section in the Model Law but there is a very similar provision in s 54 of the repealed Act that this Act replaces.

Immunity 39 (1) An arbitrator is not liable for anything done or omitted to be done in good faith in his or her capacity as arbitrator. [page 238]

(2) An entity that appoints, or fails to appoint, a person as arbitrator is not liable in relation to the appointment, failure or refusal if done in good faith. (3) In this section, a reference to an arbitrator includes an arbitrator acting as a mediator, conciliator or other non-arbitral intermediary under section 27D. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 39.5] Immunity of arbitrators Section 39 provides arbitrators with immunity where they are acting in good faith in their capacity as arbitrators. The circumstances where an arbitrator is acting in his or her capacity would include the usual functions, and would appear to include communications with respect to the arbitration, its preliminaries and any aftermath. Determination whether an arbitrator has acted in good faith would require consideration of the concept as it is understood at general law. The obligation of good faith is sometimes defined with respect to bad faith. See for example, s 29 of the Arbitration Act 1996 (Eng) where an arbitrator “is not liable for anything done or omitted in the discharge of his functions as an arbitrator unless the act or omission is shown to have been in bad faith”. [s 39.10] Immunity of appointing authorities Appointing authorities are also provided with immunity in connection with the appointment — or nonappointment — of an arbitrator: see the comments in Road Regenerating & Repair Services Pty Ltd v Mitchell Water Board (VSC, Nathan J, 15 June 1990, unreported). [s 39.15] Immunity for persons acting under s 27D Immunity is also afforded to arbitrators acting as mediators under s 27D, conciliators or nonarbitral intermediaries.

Supreme Court — limitation of jurisdiction 40 It is the intention of sections 5, 11(5), 13(5), 14(3), 16(10), 27H(5) and 27I(4) to alter or vary section 85 of the Constitution Act 1975. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 40.5] Limiting the jurisdiction of the Supreme Court to intervene under the Act The provisions listed in s 40 are of almost identical wording to s 5 and prevent intervention by the Supreme Court. Section 5 expressly limits the circumstances when a court can intervene to circumstances provided in the Act only. The other subsections referred to in s 40 are similarly worded. For example s 11(5), dealing with the appointment of arbitrators and the court’s powers provides: (5) A decision within the limits of the court’s authority on a matter entrusted by subsection (3) and (4) to the court is final. [s 40.10] Limiting court intervention In order to limit court intervention there must be compliance with s 85(5) of the Constitution Act 1985 (Vic). [s 40.15] Section 85 of the Constitution Act 1975 (Vic) 85(1)–(6) of the Constitution Act 1985 (Vic) provide:

Subsections

[page 239] 85

Powers and jurisdiction of the court (1) Subject to this Act the Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior court of Victoria with unlimited jurisdiction. . . . (3) The Court has and may exercise such jurisdiction (whether original or appellate) and such powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986. (4) This Act does not limit or affect the power of the Parliament to confer additional jurisdiction or powers on the Court. (5) A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary this section unless— (a) the Act expressly refers to this section in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal, alter or vary this section; and

(b) the member of the Parliament who introduces the Bill for the Act or, if the provision is inserted in the Act by another Act, the Bill for that other Act, or a person acting on his or her behalf, makes a statement to the Council or the Assembly, as the case requires, of the reasons for repealing, altering or varying this section; and (c) the statement is so made— (i) during the member’s second reading speech; or (ii) after not less than 24 hours’ notice is given of the intention to make the statement but before the third reading of the Bill; or (iii) with the leave of the Council or the Assembly, as the case requires, at any time before the third reading of the Bill. (6) A provision of a Bill which excludes or restricts, or purports to exclude or restrict, judicial review by the Court of a decision of another court, tribunal, body or person is to be taken to repeal, alter or vary this section and to be of no effect unless the requirements of subsection (5) are satisfied. . . . See also the discussion with respect to Victoria v Grawin Pty Ltd [2012] VSC 157 at [s 34A.20].

Court rules 41 (1) Rules of court may be made for carrying the purposes of this Act into effect and, in particular, for or with respect to the following— (a) applications to a court under this Act and the costs of such applications; (b) the payment or bringing of money into and out of a court in satisfaction of claims to which arbitration agreements apply and the investment of that money; (c) the examination of witnesses before a court or before any other person and the issue of commissions or requests for the examination of witnesses outside Victoria, for the purposes of an arbitration; (d) offers of compromise in relation to claims to which arbitration

agreements apply; (e) any other matter or thing for or with respect to which rules are by this Act authorised or required to be made by a court. (2) Subsection (1) does not limit the rule-making powers conferred on a court by any other Act. Note There is no equivalent to this section in the Model Law. [page 240]

ANNOTATIONS [s 41.5] Court rules In most Rules of the state Supreme Courts the existing provision for applications under the state Commercial Arbitration Act will be amended to allow for the hearing and determination of applications made under this Act. It is anticipated that a high degree of uniformity will be maintained between the state and territory Supreme Court Rules and those of the Federal Court of Australia (which only apply to arbitrations on other matters to which the IAA applies).

Regulations 42 The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. Note There is no equivalent to this section in the Model Law.

ANNOTATIONS [s 42.5] Regulations The Governor means the Governor of the state/territory. There is a need to keep Regulations across Australia uniform to avoid different state variations of the regulations under this Act. [s 42.10]

Section subject to local variations

This clause or section is

subject to local variations. At this current stage, there are no regulations with respect to the 2011 Act.

PART 10 — SAVINGS AND TRANSITIONAL PROVISIONS

Savings and transitional provisions 43 (1) Subject to subsection (2)— (a) this Act applies to an arbitration agreement (whether made before or after the commencement of this Act) and to an arbitration under such an agreement; and (b) a reference in an arbitration agreement to the Commercial Arbitration Act 1984, or a provision of that Act, is to be construed as a reference to this Act or to the corresponding provision (if any) of this Act. (2) If an arbitration was commenced before the commencement of this Act, the law governing the arbitration and the arbitration agreement is to be that which would have been applicable if this Act had not been enacted. (3) For the purposes of this section, an arbitration is taken to have been commenced if— (a) a dispute to which the relevant arbitration agreement applies has arisen; and (b) the arbitral tribunal has been properly constituted.

ANNOTATIONS [s 43.5] Application of 2011 Act Section 43 provides that arbitrations which are commenced after the 2011 Act has been enacted will be governed by the provisions of the 2011 Act — regardless of whether the parties had referred to in their arbitration agreement to the repealed Act. The equivalent provision in the WA Act was briefly referred to in Murray & Roberts Australia Pty Ltd v GB Lifestyles Pty Ltd [2013] WASC 345;

BC201303334. In that case, the court held that [page 241] the Commercial Arbitration Act 2012 (WA) had no impact on the present proceedings because s 43(2) of the 2012 Act provides that if an arbitration was commenced before that section came into operation, the law governing the arbitration is that which would have been application if the 2012 Act had not been enacted, which was the law provided by the Commercial Arbitration Act 1985 (WA). [s 43.10] Application of Commercial Arbitration Act 1984 The Commercial Arbitration Act 1984 only has application where the arbitration was commenced before commencement of the 2011 Act. Section 43(3) requires that for an arbitration to have commenced a dispute within the scope of the arbitration agreement must have arisen and an arbitral tribunal must have been properly constituted. The requirement that an arbitral tribunal must have been properly constituted necessitates a consideration of ss 10–15 of the 2011 Act.

Regulations of a savings or transitional nature 44 (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act. (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act or a later date. (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Government Gazette, the provision does not operate so as— (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication; or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of any thing done or omitted to be done before the date of its publication.

1

Williams and Kawharu, Williams & Kawharu on Arbitration (LexisNexis, Wellington, 2011), 5, [1.1.3].

[page 243]

New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) [9001] New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awatrds (1958) can be viewed at go to ‘UNCITRAL’, then ‘UNCITRAL Texts and Status’, then to International Commercial Arbitration and Conciliation’, then ‘Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the “New York Convention”), (accessed 1 August 2015).

[page 245]

ACICA and IAMA Arbitration Rules [10001] ACICA Arbitration Rules incorporating Emergency Arbitrator Provisions 2011 The ACICA Arbitration Rules incorporating Emergency Arbitrator Provisions 2011 can be viewed at , go to ‘Rules and Clauses’, then ACICA Arbitration Rules (accessed 1 August 2015). [10005] ACICA Expedited Arbitration Rules of 2010 The ACICA Expedited Arbitration Rules of 2010 can be viewed at , go to ‘Rules and Clauses’, then ACICA Expedited Arbitration Rules (accessed 1 August 2015). [10007] IAMA Arbitration Rules 2014 The IAMA Arbitration Rules 2014, effective 2 May 2014 can be viewed at , go to ‘Resources’, then ‘ADR Rules and Guidelines’, then ‘IAMA Arbitration Rules’ (accessed 1 August 2015). [10010] IAMA Arbitration Rules 2007 (incorporating the IAMA Fast Track Arbitration Rules) The IAMA Arbitration Rules 2007 (incorporating the IAMA Fast Track Arbitration Rules) can be viewed at , go to ‘Resources’ , then ‘ADR Rules and Guidelines’, then ‘IAMA Arbitration Rules’, see note at bottom of page for previous verions of the rules (accessed 1 August 2015).

[page 247]

International Arbitration Rules [11001] ICC Arbitration Rules 2012 The ICC Arbitration Rules 2012 can be viewed at go to ‘Products and Services’, then ‘Arbitration and ADR’, then ‘Arbitration’ (accessed 1 August 2015). [11005] LCIA Arbitration Rules (London Court International Arbitration) The LCIA Arbitration Rules (London Court International Arbitration) can be viewed at go to ‘Arbitration’, (accessed 1 August 2015). [11010] HKIAC Arbitration Rules (Hong Kong International Arbitration Rules) The HKIAC Arbitration Rules (Hong Kong International Arbitration Rules) can be viewed at go to ‘Arbitration’ then ‘Arbitration Rules and Guidelines’ (accessed 1 August 2015). [11015] Arbitration Rules of the Singapore International Arbitration Centre and SIAC Rules (5th Edition, 1 April 2013) The Arbitration Rules of the Singapore International Arbitration Centre can be viewed at go to ‘Rules’ (accessed 1 August 2015). The SIAC Rules (5th edition, 1 April 2013) can be viewed at go to ‘Rules’, then ‘SIAC Rules 2013’, (accessed 1 August 2015).

[page 249]

Australian Court Procedure In each jurisdiction that has enacted the Uniform Commercial Arbitration legislation, the conduct of commercial arbitration matters commenced under the uniform legislation is governed by the rules of court. Extracts from the relevant rules of court in each jurisdiction are reproduced on the following pages.

[page 251]

Civil Procedure Act 2010 (Vic) (Extracts) TABLE OF PROVISIONS Section

Title

Paragraph

CHAPTER 5 — APPROPRIATE DISPUTE RESOLUTION 66 67 68 69

Court may order proceeding to appropriate dispute resolution Evidence of things said and done in appropriate dispute resolution which is judicial resolution conference Protection of conduct of judicial resolution conference Interaction with other Acts and rules of court

[12001] [12005] [12010] [12015]

[page 253]

Civil Procedure Act 2010 (Vic) TABLE OF AMENDMENTS Civil Procedure Act 2010 No 47 was assented to on 24 October 2010 and commenced on 1 Janaury 2011. Only amendments to this Act made since the commencement of the Commercial Arbitation Act 2011 No 50 on 17 November 2011 will be included in this Table. The Act has been amended as follows: Amending Legislation

Date of Assent

Date of Commencement

[page 255]

CHAPTER 5 — APPROPRIATE DISPUTE RESOLUTION [12001] Court may order proceeding to appropriate dispute resolution 66 (1) A court may make an order referring a civil proceeding, or part of a civil proceeding, to appropriate dispute resolution. (2) Subject to any rules of court, an order under subsection (1) may be made without the consent of the parties if the type of appropriate dispute resolution to which the civil proceeding or part of the civil proceeding is referred is not— (a) arbitration; or (b) reference to a special referee; or (c) expert determination; or (d) any other type of appropriate dispute resolution which results, directly or indirectly, in a binding outcome. (3) An order under subsection (1) may be made at any stage in the proceeding.

[12005] Evidence of things said and done in appropriate dispute resolution which is judicial resolution conference 67 If a court orders that a judicial resolution conference be conducted in relation to a civil proceeding, no evidence shall be admitted at the hearing of any proceeding of anything said or done by any person in the course of the conduct of the judicial resolution conference unless the court otherwise orders, having regard to the interests of justice and fairness.

[12010] Protection of conduct of judicial resolution conference 68 (1) Without limiting any other law, whether written or unwritten, a judicial officer performing duties in connection with any judicial resolution conference has the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge. (2) Without limiting section 16 of the Evidence Act 2008, a judicial officer is not compellable to give evidence in any proceeding, whether civil or criminal, of anything said or done or arising from the conduct of a judicial resolution conference. Note See also sections 24A and 27A of the Supreme Court Act 1986, sections 47B and 48C of the County Court Act 1958 and sections 108 and 108A of the Magistrates” Court Act 1989.

[12015] Interaction with other Acts and rules of court 69 The powers of a court under this Chapter are in addition to, and do not derogate from, any powers a court has under any other Act (including any Commonwealth Act) or the rules of court in relation to appropriate dispute resolution.

[page 257]

Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) (Extracts) TABLE OF PROVISIONS Rule

Title

Paragraph

ORDER 9 — ARBITRATION RULES PART 1 — GENERAL 9.01 9.02

9.03 9.04 9.05 9.06 9.07 9.08

Definition Documents not in English language

[12205] [12210]

PART 2 — INTERNATIONAL COMMERCIAL ARBITRATION Application for stay and referral to arbitration [12215] — foreign arbitration agreements Application to enforce foreign award [12220] Application for referral to arbitration — article [12225] 8 of the Model Law Subpoenas [12230] Application relating to evidence for arbitration [12235] Application relating to disclosure of [12240] confidential information

9.09 9.10 9.11 9.12

9.13 9.14 9.15 9.16

Application for relief under miscellaneous provisions of the Model Law Application to set aside award — Model Law Enforcement of award under Model Law Enforcement of Investment Convention award

[12245] [12250] [12255] [12260]

PART 3 — DOMESTIC COMMERCIAL ARBITRATION Application for referral to arbitration [12265] Subpoenas [12270] Application relating to evidence for arbitration [12275] Application relating to disclosure of [12280] confidential information [page 258]

Section 9.17 9.18 9.19 9.20 9.21

Title Application for relief under miscellaneous provisions of Commercial Arbitration Act Preliminary point of law Application to set aside award Appeal Application to enforce award

Paragraph [12285] [12290] [12295] [12300] [12305]

[page 259]

Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) TABLE OF AMENDMENTS Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 SR 94 were notified in Gaz S217 of 1 August 2008 and commenced on 4 August 2008. Only amendments to the Rules made since the commencement of the Commercial Arbitration Act 2011 No 50 on 17 November 2011 will be included in this Table. The Rules are amended as follows: Amending Legislation Date of Gazette Supreme Court (Chapter II Arbitration 30 October 2014 Amendment) Rules 2014 SR 205

Date of Commencement 1 December 2014

[page 261]

ORDER 9 — ARBITRATION RULES PART 1 — GENERAL

[12205] Definition 9.01 (1) In this Order— arbitration means an arbitration to which the Commercial Arbitration Act or the International Arbitration Act applies, as the case requires; Commercial Arbitration Act means the Commercial Arbitration Act 2011; International Arbitration Act means the International Arbitration Act 1974 of the Commonwealth; Model Law means the UNCITRAL Model Law on International Commercial Arbitration, adopted by the United Nations Commission on International Trade Law on 21 June 1985, as amended by the United Nations Commission on International Trade Law on 7 July 2006, the English text of which is set out in Schedule 2 to the International Arbitration Act. (2) Unless the contrary intention appears— (a) expressions used in this Part have the same meaning as in the International Arbitration Act or the Commercial Arbitration Act, as the case requires; (b) expressions used in Part 2 of this Order and in the Forms prescribed by that Part have the same meaning as in the International Arbitration Act; and (c) expressions used in Part 3 of this Order and in the Forms prescribed by that Part have the same meaning as in the Commercial Arbitration Act.

[12210] Documents not in English language 9.02 A party to a proceeding to which this Order applies who seeks to rely on a document that is not in the English language shall provide a certified English translation of the document— (a) to the Court; and (b) to any other party to the proceeding. Note 1 Section 9 of the International Arbitration Act also deals with the translation of awards and arbitration agreements in proceedings to which Part II of the International Arbitration Act applies. Note 2 Section 35 of the Commercial Arbitration Act also deals with the translation of awards and arbitration agreements in proceedings to which the Commercial Arbitration Act applies.

PART 2 — INTERNATIONAL COMMERCIAL ARBITRATION

[12215] Application for stay and referral to arbitration — foreign arbitration agreements 9.03 (1) An application under section 7 of the International Arbitration Act to stay the whole or part of a proceeding and refer the parties to arbitration shall be in Form 2-9A. [page 262] (2) The application shall be accompanied by— (a) a copy of the arbitration agreement; and (b) an affidavit stating the material facts on which the application for relief is based.

[12220] Application to enforce foreign award 9.04 (1) An application under section 8(2) of the International Arbitration Act to enforce a foreign award shall be in Form 2-9B. (a) shall be supported by affidavit; and (b) may be made without notice to any person. (2) The application shall be accompanied by— (a) the documents referred to in section 9 of the International Arbitration Act; and (b) an affidavit stating— (i) the extent to which the foreign award has not been complied with, at the date the application is made; and (ii) the usual or last-known place of residence or business of the person against whom it is sought to enforce the foreign award or, if the person is a company, the last-known registered office of the company.

[12225] Application for referral to arbitration — article 8 of the Model Law 9.05 (1) An application under article 8 of the Model Law to refer parties to arbitration shall be in Form 2-9C. (2) The application shall be accompanied by— (a) a copy of the arbitration agreement; and (b) an affidavit stating the material facts on which the application for relief is based.

[12230] Subpoenas 9.06 (1) An application for the issue of a subpoena under section 23(3) of the International Arbitration Act shall be in Form 2-9D. (2) The application shall be accompanied by— (a) a draft subpoena in accordance with paragraph (3); and (b) an affidavit stating the following— (i) the names of the parties to the arbitration;

(ii)

the name of the arbitrator or the names of the arbitrators constituting the arbitral tribunal conducting the arbitration; (iii) the place where the arbitration is being conducted; (iv) the nature of the arbitration; (v) the terms of the permission given by the arbitral tribunal for the application; (vi) the conduct money (if appropriate) to be paid to the addressee; and (vii) the witness expenses payable to the addressee. (3) For the purposes of paragraph (2)(a), the draft subpoena shall be— (a) for a subpoena to attend for examination before an arbitral tribunal — in Form 2-9E; [page 263] (b) for a subpoena to produce to the arbitral tribunal the documents mentioned in the subpoena — in Form 2-9F; or (c) for a subpoena to attend for examination and produce documents — in Form 2-9G. (4) The Court may— (a) fix an amount that represents the reasonable loss and expense the addressee will incur in complying with the subpoena; and (b) direct that the amount be paid by the applicant to the addressee before or after the addressee complies with the subpoena. (5) An amount fixed under paragraph (4) may be in addition to any conduct money or witness expenses referred to in paragraph (2)(b). (6) A subpoena shall be— (a) for a subpoena to attend for examination before an arbitral tribunal — in Form 2-9E; (b) for a subpoena to produce to the arbitral tribunal the documents mentioned in the subpoena — in Form 2-9F; or (c) for a subpoena to attend for examination and produce documents — in Form 2-9G. (7) A person served with a subpoena shall comply with the subpoena in accordance with its terms. (8) Order 42 of Chapter I applies so far as is practicable to a subpoena referred

to in this Rule.

[12235] Application relating to evidence for arbitration 9.07 (1) An application for an order under section 23A(3) of the International Arbitration Act shall be in Form 2-9H. (2) An application under paragraph (1) shall be accompanied by an affidavit stating— (a) the name of the person against whom the order is sought; (b) the order sought; (c) the ground under section 23A(1) of the International Arbitration Act relied on; (d) the terms of the permission given by the arbitral tribunal for the application; and (e) the material facts relied on.

[12240] Application relating to disclosure of confidential information 9.08 (1) An application under section 23F or 23G of the International Arbitration Act for an order prohibiting or allowing the disclosure of confidential information shall be in Form 2-9I. (2) An application under paragraph (1) shall be accompanied by an affidavit stating— (a) the name of the person against whom the order is sought; (b) the order sought; (c) the material facts relied on; (d) if the application is made under section 23F of the International Arbitration Act — the terms of the order of the arbitral tribunal allowing disclosure of the information and the date the order was made; and [page 264]

(e) if the application is made under section 23G of the International Arbitration Act either— (i) the date the arbitral tribunal’s mandate was terminated; or (ii) the date and the terms— (A) of the request made to the arbitral tribunal for disclosure of the confidential information; and (B) of the arbitral tribunal’s refusal to make the order.

[12245] Application for relief under miscellaneous provisions of the Model Law 9.09 (1) An application for relief under article 11(3), 11(4), 13(3), 14, 16(3), 17H(3), 17I, 17J or 27 of the Model Law shall be in Form 2-9J. (2) The application shall be accompanied by an affidavit stating the material facts on which the application for relief is based.

[12250] Application to set aside award — Model Law 9.10 (1) An application under article 34 of the Model Law to set aside an award shall be in Form 2-9K. (2) The application shall identify— (a) if the applicant relies on article 34(2)(a) of the Model Law — which subparagraph of article 34(2)(a) is relied upon; (b) if the applicant relies on article 34(2)(b) of the Model Law — which subparagraph of article 34(2)(b) is relied upon; and (c) brief grounds for seeking the order. (3) The application shall be accompanied by an affidavit— (a) exhibiting— (i) a copy of the arbitration agreement; and (ii) a copy of the award including the reasons of the arbitral tribunal for the award; and (b) identifying— (i) the detailed grounds for seeking the order;

(ii) (iii)

the material facts relied on; and the date on which the applicant received the award or, if a request was made under article 33 of the Model Law to the arbitral tribunal to correct the award, the date on which that request was disposed of by the arbitral tribunal. (4) The application and supporting affidavit shall be served on any person whose interest might be affected by the setting aside of the award. (5) Any application by a party to the arbitration under article 34(4) of the Model Law shall be made by summons in the proceeding commenced under paragraph (1).

[12255] Enforcement of award under Model Law 9.11 (1) An application under article 35 of the Model Law to enforce an award shall be in Form 2-9L. [page 265] (2) The application shall be accompanied by an affidavit— (a) exhibiting the documents referred to in article 35(2) of the Model Law; and (b) stating— (i) the extent to which the award has not been complied with, at the date the application is made; and (ii) the usual or last-known place of residence or business of the person against whom it is sought to enforce the award or, if the person is a company, the last-known registered office of the company.

[12260] Enforcement of Investment Convention award

9.12 (1) An application under section 35(2) of the International Arbitration Act for leave to enforce an award to which Part IV of the Act applies shall be in Form 2-9M. (2) The application shall be accompanied by an affidavit stating— (a) the extent to which the award has not been complied with, at the date the application is made; and (b) the usual or last-known place of residence or business of the person against whom it is sought to enforce the award or, if the person is a company, the last-known registered office of the company.

PART 3 — DOMESTIC COMMERCIAL ARBITRATION

[12265] Application for referral to arbitration 9.13 (1) An application under section 8 of the Commercial Arbitration Act to refer the parties to arbitration shall be in Form 2-9N. (2) The application must be accompanied by an affidavit— (a) exhibiting a copy of the arbitration agreement; and (b) stating the material facts on which the application for relief is based.

[12270] Subpoenas 9.14 (1) An application for the issue of a subpoena under section 27A of the Commercial Arbitration Act shall be in Form 2-9O. (2) The application shall be accompanied by— (a) a draft subpoena in accordance with paragraph (3); and (b) an affidavit stating— (i) the names of the parties to the arbitration; (ii) the name of the arbitrator or the names of the arbitrators constituting the arbitral tribunal conducting the arbitration; (iii) the place where the arbitration is being conducted; (iv) the nature of the arbitration; (v) the terms of the permission given by the arbitral tribunal for the

application; (vi) the conduct money (if appropriate) to be paid to the addressee; and (vii) the witness expenses payable to the addressee. (3) For the purposes of paragraph (2)(a), the draft subpoena shall be— (a) for a subpoena to attend for examination before an arbitral tribunal — in Form 2-9P; (b) for a subpoena to produce to the arbitral tribunal the documents mentioned in the subpoena — in Form 2-9Q; or [page 266] (c) for a subpoena to attend for examination and produce documents — in Form 2-9R. (4) The Court may— (a) fix an amount that represents the reasonable loss and expense the addressee will incur in complying with the subpoena; and (b) direct that the amount be paid by the applicant to the addressee before or after the addressee complies with the subpoena. (5) An amount fixed under paragraph (4) may be in addition to any conduct money or witness expenses referred to in paragraph (2)(b). (6) A subpoena shall be— (a) for a subpoena to attend for examination before an arbitral tribunal — in Form 2-9P; (b) for a subpoena to produce to the arbitral tribunal the documents mentioned in the subpoena — in Form 2-9Q; or (c) for a subpoena to attend for examination and produce documents— in Form 2-9R. (7) A person served with a subpoena shall comply with the subpoena in accordance with its terms. (8) Order 42 of Chapter I applies so far as is practicable to a subpoena referred to in this Rule.

[12275] Application relating to evidence for

arbitration 9.15 (1) An application for an order under section 27B of the Commercial Arbitration Act shall be in Form 2-9S. (2) An application under paragraph (1) shall be accompanied by an affidavit stating— (a) the name of the person against whom the order is sought; (b) the order sought; (c) the ground under section 27B of the Commercial Arbitration Act relied on; (d) the terms of the permission given by the arbitral tribunal for the application; and (e) the material facts relied on.

[12280] Application relating to disclosure of confidential information 9.16 (1) An application under section 27H or 27I of the Commercial Arbitration Act for an order prohibiting or allowing the disclosure of confidential information shall be in Form 2-9T. (2) An application under paragraph (1) shall be accompanied by an affidavit stating— (a) the name of the person against whom the order is sought; (b) the order sought; (c) the material facts relied on; (d) if the application is made under section 27H of the Commercial Arbitration Act — the terms of the order of the arbitral tribunal allowing disclosure of the information and the date the order was made; and (e) if the application is made under section 27I of the Commercial Arbitration Act either— [page 267] (i)

the date the arbitral tribunal’s mandate was terminated; or

(ii)

the date and terms— (A) of the request made to the arbitral tribunal for disclosure of the confidential information; and (B) of the arbitral tribunal’s refusal to make the order.

[12285] Application for relief under miscellaneous provisions of Commercial Arbitration Act 9.17 (1) An application for relief under section 11(3), 11(4), 13(4), 14, 16(9), 17H, 17I, 17J, 19(6) or 27 of the Commercial Arbitration Act shall be in Form 2-9U. (2) The application shall be accompanied by an affidavit stating the material facts on which the application for relief is based.

[12290] Preliminary point of law 9.18 (1) An application under section 27J of the Commercial Arbitration Act for leave to apply for determination of a question of law arising in the course of an arbitration and, if leave is granted, for the determination of the question of law, shall be in Form 2-9V. (2) The application shall be accompanied by an affidavit— (a) exhibiting— (i) a copy of the arbitration agreement; and (ii) evidence of the consent of the arbitrator or the consent of all the other parties as required by section 27J(2) of the Commercial Arbitration Act; and (b) identifying— (i) the name and usual or last known place of residence or business of any person whose interest might be affected by the proposed determination of the question of law or, if the person is a company, the last known registered office of the company; (ii) the nature of the dispute with sufficient particularity to give an understanding of the context in which the question of law arises;

the facts on the basis of which the question of law is to be determined and the basis on which those facts are stated, including whether they are agreed, assumed, found by the arbitral tribunal or otherwise; and (iv) the detailed grounds on which it is contended that leave should be granted. (3) The application and supporting affidavit shall be served on any person whose interest might be affected by determination of the question of law. (4) The Court may, if it thinks fit, hear and determine the question of law at the same time as the application for leave to apply for the determination of the question. (5) If the Court first hears and grants the application for leave, it may make such orders as it thinks fit for the hearing and determination of the question of law. (iii)

[12295] Application to set aside award 9.19 (1) An application under section 34 of the Commercial Arbitration Act to set aside an award shall be in Form 2-9W. [page 268] (2) The application shall identify— (a) if the applicant relies on section 34(2)(a) of the Commercial Arbitration Act — which subparagraph of section 34(2)(a) is relied upon; (b) if the applicant relies on section 34(2)(b) of the Commercial Arbitration Act — which subparagraph of section 34(2)(b) is relied upon; and (c) brief grounds for seeking the order. (3) The application shall be accompanied by an affidavit— (a) exhibiting— (i) a copy of the arbitration agreement; and (ii) a copy of the award including the reasons of the arbitral tribunal for the award; and

(b) identifying— (i) the detailed grounds for seeking the order; (ii) the material facts relied on; and (iii) the date on which the applicant received the award or, if a request was made under section 33 of the Commercial Arbitration Act to the arbitral tribunal to correct the award, the date on which that request was disposed of by the arbitral tribunal. (4) The application and supporting affidavit shall be served on any person whose interest might be affected by the setting aside of the award. (5) Any application by a party to the arbitration under section 34(4) of the Commercial Arbitration Act shall be made by interlocutory application in the proceeding commenced under paragraph (1).

[12300] Appeal 9.20 (1) An application under section 34(A) of the Commercial Arbitration Act for leave to appeal on a question of law arising out of an award shall be in Form 2-9X. (2) The application shall state— (a) the question of law to be determined; and (b) the grounds on which it is alleged that leave to appeal should be granted. (3) The application shall be accompanied by an affidavit showing that, before the end of the appeal period referred to in section 34A(1) and (6) of the Commercial Arbitration Act, the parties agreed that an appeal may be made under section 34(A) of that Act. (4) The affidavit shall exhibit— (a) a copy of the arbitration agreement; and (b) a copy of the award, including the reasons of the arbitral tribunal for the award. (5) The application shall be accompanied by a submission setting out— (a) the name and usual or last known place of residence or business of any person whose interest might be affected by the proposed appeal or, if the person is a company, the last known registered office of the company; (b) the nature of the dispute with sufficient particularity to give an

understanding of the context in which the question of law arises; (c) when and how the arbitral tribunal was asked to determine the question of law and where in the award or the reasons, and in what way, the arbitral tribunal determined it; (d) the relevant facts found by the arbitral tribunal on the basis of which the question of law is to be determined by the Court; [page 269] (e) the basis on which it is contended that the determination of the question of law will substantially affect the rights of one or more parties; (f) the basis on which it is contended that— (i) the decision of the arbitral tribunal on the question of law is obviously wrong; or (ii) the question of law is of general public importance and the decision of the arbitral tribunal is open to serious doubt; (g) the basis on which it is contended that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in the circumstances for the Court to determine the question; and (h) a succinct statement of the argument in support of the application for leave and the appeal if leave is granted. (6) The application and the supporting material shall be served on any person whose interest might be affected by the proposed appeal. (7) Within 14 days after service on a party or within such further period as the Court may allow, that party shall file and serve any answering material, including a succinct statement of any argument in opposition to the application for leave and the appeal if leave is granted. (8) If it appears to the Court that an oral hearing of the application for leave to appeal is required, the Court may, if it thinks fit, hear and determine the appeal on the question of law at the same time as it hears the application for leave to appeal. (9) If the Court grants the application for leave before hearing the appeal, it may make such orders as it thinks fit for the hearing and determination of the appeal. (10) When an application for leave to appeal is brought or leave to appeal is granted, the Court may suspend or discharge any enforcement order made in

respect of the award the subject of the proposed appeal.

[12305] Application to enforce award 9.21 (1) An application under section 35 of the Commercial Arbitration Act to enforce an award shall be in Form 2-9Y. (2) The application shall be accompanied by— (a) the documents referred to in section 35 of the Commercial Arbitration Act; and (b) an affidavit stating— (i) the extent to which the award has not been complied with, at the date the application is made; and (ii) the usual or last-known place of residence or business of the person against whom it is sought to enforce the domestic award or, if the person is a company, the last-known registered office of the company. [page 271]

Forms Form 2-9A 2-9B 2-9C 2-9D 2-9E 2-9F

CONTENTS Title Interlocutory Application for Stay And Referral to Arbitration — Foreign Arbitration Agreement Originating Application to Enforce Foreign Award Interlocutory Application for Referral to Arbitration Under Article 8 of the Model Law Originating Application for Issue of Subpoena Subpoena to Attend for Examination Subpoena to Produce Documents

Paragraph [12,500] [12,505] [12,510] [12,515] [12,520] [12,525]

2-9G 2-9H 2-9I 2-9J 2-9K 2-9L

2-9M

2-9N 2-9O 2-9P 2-9Q 2-9R 2-9S 2-9T 2-9U 2-9V 2-9W

Subpoena to Attend for Examination and [12,530] Produce Documents Originating Application for Order to Give [12,535] Evidence or Produce Documents Originating Application to *Prohibit/*Allow [12,540] Disclosure of Confidential Information Originating Application for Relief under Certain Miscellaneous Provisions of the Model [12,545] Law Originating Application to Set Aside Award [12,550] under Article 34 of the Model Law Originating Application to Enforce Award [12,555] under Article 35 of the Model Law Originating Application for Leave to Enforce Award to which Part IV of the International [12,560] Arbitration Act 1974 of the Commonwealth Applies Interlocutory Application for Referral to [12,565] Arbitration Originating Application for Issue of Subpoena [12,570] Subpoena to Attend for Examination [12,575] Subpoena to Produce Documents [12,580] Subpoena to Attend for Examination and [12,585] Produce Documents Originating Application for Order to Give [12,590] Evidence or Produce Documents Originating Application to *Prohibit/*Allow [12,595] Disclosure of Confidential Information Originating Application for Order under Certain Miscellaneous Provisions of the Commercial [12,600] Arbitration Act 2011 Originating Application for Determination of a [12,605] Question of Law Originating Application to Set Aside Award [12,610]

[page 272] Form 2-9X 2-9Y

Title Originating Application for Leave to Appeal Against Award Originating Application to Enforce Award

Paragraph [12,615] [12,620]

[page 273]

[12,500]

Form 2-9A

INTERLOCUTORY APPLICATION FOR STAY AND REFERRAL TO ARBITRATION — FOREIGN ARBITRATION AGREEMENT

[page 274]

[page 275]

[12,505]

Form 2-9B

ORIGINATING APPLICATION TO ENFORCE FOREIGN AWARD

[page 276]

[page 277]

[page 278]

[12,510]

Form 2-9C

INTERLOCUTORY APPLICATION FOR REFERRAL TO ARBITRATION UNDER ARTICLE 8 OF THE MODEL LAW

[page 279]

[page 280]

[12,515]

Form 2-9D

ORIGINATING APPLICATION FOR ISSUE OF SUBPOENA

[page 281]

[page 282]

[page 283]

[12,520]

Form 2-9E

SUBPOENA TO ATTEND FOR EXAMINATION

[page 284]

[page 285]

[page 286]

[12,525]

Form 2-9F

SUBPOENA TO PRODUCE DOCUMENTS

[page 287]

[page 288]

[page 289]

[page 290]

[12,530]

Form 2-9G

SUBPOENA TO ATTEND FOR EXAMINATION AND PRODUCE DOCUMENTS

[page 291]

[page 292]

[page 293]

[page 294]

[page 295]

[12,535]

Form 2-9H

ORIGINATING APPLICATION FOR ORDER TO GIVE EVIDENCE OR PRODUCE DOCUMENTS

[page 296]

[page 297]

[page 298]

[12,540]

Form 2-9I

ORIGINATING APPLICATION TO *PROHIBIT/*ALLOW DISCLOSURE OF CONFIDENTIAL INFORMATION

[page 299]

[page 300]

[page 301]

[12,545]

Form 2-9J

ORIGINATING APPLICATION FOR RELIEF UNDER CERTAIN MISCELLANEOUS PROVISIONS OF THE MODEL LAW

[page 302]

[page 303]

[page 304]

[12,550]

Form 2-9K

ORIGINATING APPLICATION TO SET ASIDE AWARD UNDER ARTICLE 34 OF THE MODEL LAW

[page 305]

[page 306]

[page 307]

[12,555]

Form 2-9L

ORIGINATING APPLICATION TO ENFORCE AWARD UNDER ARTICLE 35 OF THE MODEL LAW

[page 308]

[page 309]

[page 310]

[12,560]

Form 2-9M

ORIGINATING APPLICATION FOR LEAVE TO ENFORCE AWARD TO WHICH PART IV OF THE INTERNATIONAL ARBITRATION ACT 1974 OF THE COMMONWEALTH APPLIES

[page 311]

[page 312]

[page 313]

[12,565]

Form 2-9N

INTERLOCUTORY APPLICATION FOR REFERRAL TO ARBITRATION

[page 314]

[page 315]

[12,570]

Form 2-9O

ORIGINATING APPLICATION FOR ISSUE OF SUBPOENA

[page 316]

[page 317]

[page 318]

[12,575]

Form 2-9P

SUBPOENA TO ATTEND FOR EXAMINATION

[page 319]

[page 320]

[page 321]

[12,580]

Form 2-9Q

SUBPOENA TO PRODUCE DOCUMENTS

[page 322]

[page 323]

[page 324]

[page 325]

[12,585]

Form 2-9R

SUBPOENA TO ATTEND FOR EXAMINATION

AND PRODUCE DOCUMENTS

[page 326]

[page 327]

[page 328]

[page 329]

[page 330]

[12,590]

Form 2-9S

ORIGINATING APPLICATION FOR ORDER TO GIVE EVIDENCE OR PRODUCE DOCUMENTS

[page 331]

[page 332]

[page 333]

[12,595]

Form 2-9T

ORIGINATING APPLICATION TO *PROHIBIT/*ALLOW DISCLOSURE OF CONFIDENTIAL INFORMATION

[page 334]

[page 335]

[page 336]

[12,600]

Form 2-9U

ORIGINATING APPLICATION FOR ORDER UNDER CERTAIN MISCELLANEOUS PROVISIONS OF THE COMMERCIAL ARBITRATION ACT 2011

[page 337]

[page 338]

[page 339]

[12,605]

Form 2-9V

ORIGINATING APPLICATION FOR DETERMINATION OF A QUESTION OF LAW

[page 340]

[page 341]

[page 342]

[12,610]

Form 2-9W

ORIGINATING APPLICATION TO SET ASIDE AWARD

[page 343]

[page 344]

[page 345]

[12,615]

Form 2-9X

ORIGINATING APPLICATION FOR LEAVE TO APPEAL AGAINST AWARD

[page 346]

[page 347]

[page 348]

[12,620]

Form 2-9Y

ORIGINATING APPLICATION TO ENFORCE AWARD

[page 349]

[page 350]

[page 351]

Supreme Court Practice Notes CONTENTS Paragraph

Practice Note No 8 of 2014 — Commercial Arbitration Business

[12,900]

[page 352]

[12,900] Practice Note No 8 of 2014 Commercial Arbitration Business Court Support for arbitration 1. The Court is supportive of the wishes of disputants to resolve all or part of their dispute by arbitration and will assist parties in a variety of ways, including — (a) assistance and support for the arbitration process (eg subpoenas to witnesses or for production of documents, interim measures of protection (injunctive relief or otherwise) and orders with respect to the constitution of the arbitral tribunal); (b) recognition and enforcement of arbitration awards and orders of arbitral tribunals (to the extent permitted under the statutory or other bases of the arbitration process); (c) determination of discrete questions of law which arbitrators or parties are able to refer to the Court (depending on the statutory or other bases of the arbitration process); and (d) expeditious hearing and determination of appeals from domestic (Australian) arbitration processes (to the extent permitted under the statutory or other bases of the arbitration process). 2. Court assistance and support is provided for all arbitration proceedings, international or domestic (Australian), and whether conducted under the International Arbitration Act 1974 (Cth) or the Commercial Arbitration Act 2011 (Vic). Enforcement or other proceedings with respect to arbitration conducted under these statutory provisions or under legislation in other jurisdictions (international and other Australian jurisdictions) are also available in the Court, subject to the provisions of the International Arbitration Act 1974 or the Commercial Arbitration Act 2011, to the extent applicable. All applications under the 2 provisions of these Acts are provided for under the Supreme Court (Chapter II Arbitration Amendment) Rules 2014 (No 205/2014) (“the Arbitration Rules”). International Arbitration

3. The International Arbitration Act 1974 (s 18) confers jurisdiction on the Court to provide assistance and support with respect to the matters specified in Article 6 of the United Nations Commission on International Trade Law (“UNCITRAL”) Model Law on International Commercial Arbitration 1985 (“the Model Law”)— (a) appointment of a sole or presiding arbitrator failing agreement by the parties or co-arbitrators (Article 11(3)); (b) appointment of an arbitrator or arbitrators where the appointment procedure agreed by the parties fails (Article 11(4)); (c) deciding on challenges to an arbitrator or arbitrators (Article 13(3)); (d) termination of the mandate of an arbitrator as a result of a failure or impossibility to act (Article 14); (e) determining whether the arbitral tribunal has jurisdiction (Article 16); and (f) setting aside arbitral awards on the limited grounds specified in Article 34. 4. In addition to providing assistance and support under Article 6 of the Model Law, the International Arbitration Act 1974 confers jurisdiction on the Court to — (a) enforce foreign arbitral agreements by staying a proceeding or part of a proceeding that is before the Court which invites the determination of a matter capable of settlement by arbitration which is subject to such an agreement (section 7(2)); [page 353] (b) make interim or supplementary orders for the preservation of the rights of the parties or in relation to any property for the purpose of providing effective enforcement of arbitration agreements (section 7(3)); (c) enforce foreign arbitral awards to which the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (“the New York Convention”) applies (section 8); (d) recognition and enforcement of interim measures of protection (Model Law, Articles 17H, 17I and 17J); (e) issuing subpoenas for the attendance of a person before the arbitral tribunal for examination or further production of documents or for assistance to the arbitral tribunal in the taking of evidence (sections 23

and 23A); and (f) prohibiting or allowing the disclosure of confidential information (sections 23F and 23G). 5. It is noted that the jurisdiction of the Court to provide interim measures of protection (eg interlocutory injunctive relief for the preservation of assets or evidence, Mareva injunctions, search orders and the like) in parallel with the arbitration process is recognised in Article 9 of the Model Law. Domestic (Australian) Arbitration 6. Domestic (Australian) arbitration is currently subject to the operation of the substantially uniform commercial arbitration acts of the various States and Territories. The Victorian legislation is contained in the Commercial Arbitration Act 2011. 7. The Commercial Arbitration Act 2011 confers jurisdiction on the Court to provide assistance and support for the arbitration process in a variety of matters and circumstances, including— (a) reference to arbitration (section 8); (b) appointment of a sole or presiding arbitrator failing agreement by the parties or co-arbitrators (section 11(3)); (c) appointment of an arbitrator or arbitrators where the appointment procedure agreed by the parties fails (section 11(4)); (d) deciding on challenges to an arbitrator or arbitrators (section 13(4)); (e) termination of the mandate of an arbitrator as a result of a failure or impossibility to act (section 14); (f) determining whether the arbitral tribunal has jurisdiction (section 16(a)); (g) recognition and enforcement of interim measures (sections 17H and 17I); (h) court ordered interim measures (section 17J); (i) enforcement of an order or directions of an arbitral tribunal (section 19(6)); (j) court assistance in the taking of evidence in arbitral proceedings (section 27); (k) court assistance in issuing subpoenas requiring a person to attend before the arbitral tribunal for examination or for production of documents to the arbitral tribunal (sections 27A and 27B); (l) prohibition of the disclosure of confidential information (section 27H); (m) allowing the disclosure of confidential information (section 27I); (n) determination of a preliminary point of law (section 27J); (o) assessment of costs of an arbitration (other than the fees and expenses of

an arbitrator) (section 33B); (p) orders in relation to the costs of an abortive arbitration (section 33D); (q) application for setting aside as exclusive recourse against arbitral award (cf Model Law, Article 34) (section 34); [page 354] (r)

appeal on a question of law (with party agreement and leave of the Court) (section 34A); and (s) recognition and enforcement of arbitral awards (sections 35 and 36). 8. Maintenance of arbitration proceedings, rather than court proceedings, with respect to matters the subject of an arbitration agreement and court assistance and support for the arbitration process in the form of interim measures of protection are expressly provided for in sections 8 and 9 of the Commercial Arbitration Act 2011, as follows: 8. Arbitration agreement and substantive claim before court (cf Model Law Art 8): (1) A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party’s first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. (2) Where an action referred to in subsection (1) has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court. 9. Arbitration agreement and interim measures by court (cf Model Law Art 9) It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant the measure. Procedural Matters 9. All applications under the International Arbitration Act 1974 must be commenced in accordance with the Arbitration Rules and in the prescribed form

of application. In determining whether an arbitration is international, reference should be made to the provisions of the International Arbitration Act 1974 and also to the UNCITRAL Model Law (the provisions of which are applied by the International Arbitration Act 1974) — particularly, Article 1 of the Model Law. Applications under the Commercial Arbitration Act 2011 must also be commenced in accordance with the Arbitration Rules and in the prescribed form of application. Some of the more significant provisions of the Arbitration Rules are as follows— (a) An application to enforce a foreign award pursuant to the International Arbitration Act 1974 (section 8) must comply with the requirements of Rule 9.04 (Form 2-9B). An application to enforce a domestic (Australian) award pursuant to the Commercial Arbitration Act 2011 must comply with the requirements of Rule 9.21 (Form 2-9Y); (b) An application to set aside a foreign award pursuant to Article VI of the New York Convention or Article 34 of the Model Law (see Part II and sections 16 and 20 of the International Arbitration Act 1984) must comply with the requirements of Rule 9.10 (Form 2-9K). An application to set aside a domestic (Australian) award pursuant to section 34 of the Commercial Arbitration Act 2011 must comply with the requirements of Rule 9.19 (Form 2-9W); (c) An application under section 27J of the Commercial Arbitration Act 2011 for leave to apply for determination of a question of law arising in the course of a domestic (Australian) arbitration must comply with the requirements of Rule 9.18 (Form 2-9V); and (d) An application for leave to appeal against a domestic (Australian) award under section 34(A) of the Commercial Arbitration Act 2011 must comply with the requirements of Rule 9.20 (Form 2-9X). [page 355] Applications under miscellaneous provisions of the International Arbitration Act 1974 and the Commercial Arbitration Act 2011 are provided for under Rules 9.09 (Form 2-9J) and 9.17 (Form 2-9U), respectively. 10. Parties seeking to bring an application must first consult with the Associate to the Judge managing the Commercial Court — Arbitration List to establish a hearing date and to appoint a Judge to hear the application. The Commercial Court Registrar will only accept a summons with a return date

authorised by this Associate. 11. Subject to any direction of the Judge hearing the application, practitioners must deliver to the Judge, not less than two clear days before the time appointed for the hearing of the application, a copy of all affidavits, including exhibits, as required by the Arbitration Rules, together with a brief outline of argument in support of the application. 12. From time to time urgent interlocutory applications arise in the course of arbitration proceedings. The Court is available on very short notice and at any time (during business hours or at any other time) to hear and promptly determine these applications. The following applies to applications which are accepted by the Judge managing the Commercial Court — Arbitration List, as urgent— (a) The applicant must deliver to the Associate to the Judge managing the Commercial Court — Arbitration List at the time of seeking to bring the application a copy of the application and of all affidavits including exhibits as required by the Arbitration Rules and a brief outline of argument in support of the application; (b) The practitioner for the respondent should as soon as practicable and in any event on the day prior to the hearing of the application (if possible in all the circumstances) deliver to the Associate to the Judge appointed to hear the application, a copy of all affidavits including exhibits filed in opposition together with a brief outline of argument; (c) If all parties to the application so request, the Judge appointed to hear the application may agree to determine the application within 24 hours of the completion of argument provided that in such a case no reasons for the decision will be provided at the time of determination. Any party requiring reasons must so advise the Judge at the time of the determination and the Judge will provide reasons, but they will be in short form. Reasons in short form will be simply statements, without elaboration, of the findings of fact and principles of law which lead to the determination; (d) If the application is one that is properly made ex parte, this should be clearly stated in all communications with the Associate to the Judge managing the Commercial Court — Arbitration List or the Judge appointed to hear the application, as the case may be. Such communications need not be copied to the respondent until the interim determination of the application; and (e) Where an applicant for an interlocutory order offers, or the Court accepts, or an order or other Court document records, the giving of “the

usual undertaking as to damages”, this shall be taken to mean the following undertaking given to the Court: To abide by any order which this Court might make as to damages, in case this Court shall be of the opinion that any person shall have sustained any loss, by reason of this order, which the party giving the undertaking ought to pay. [page 356] 13. These procedural arrangements will apply notwithstanding the Commercial Court Practice Note No 10 of 2011. Otherwise, the Commercial Court Practice Note is applicable to the extent that it is not inconsistent with these procedural arrangements. Commercial Court — Arbitration Proceedings 14. The Chief Justice has appointed the Hon. Justice Croft to manage the Commercial Court — Arbitration List. All arbitration proceedings, any applications in arbitration proceedings, and any urgent applications with respect to arbitration matters, should be directed to His Honour’s Associate. (Telephone: 03 9603 7731 or email [email protected]). 15. Arbitration matters arising in proceedings already allocated to the Technology, Engineering and Construction List (TEC List) will continue to be managed within that List by the Hon. Justice Vickery, though they may be transferred to the Arbitration List in accordance with the usual practice applied in the Commercial Court with respect to the transfer of matters between lists in that Court. The same position applies with respect to the possibility of transfer of arbitration matters from the Arbitration List to the TEC List. 16. Any changes in these arrangements will be notified from time to time on the Commercial Court section of the Supreme Court website. 17. This Practice Note takes effect on and from 1 December 2014 — which is also the date of commencement of the Arbitration Rules. 18. This Practice Note is in substitution for Practice Note No 2 of 2010 which is hereby revoked. Vivienne Macgillivray Executive Associate to the Chief Justice 28 November 2014

[page 357]

Supreme Court Rules 2000 (Tas) (Extracts)

TABLE OF PROVISIONS Rule

Title Paragraph PART 32 — PROCEEDINGS UNDER PARTICULAR STATUTES DIVISION 1 — PROCEEDINGS UNDER THE COMMERCIAL ARBITRATION 2011 771 Interpretation of Division 1 of Part 32 [13001] 772 Applications [13005] 773 Determination of preliminary point of law [13010] 774 Referral to mediation [13015] 775 Subpoena [13020] 776 Court assistance in taking of evidence [13025] 776A Appeal and application for leave for appeal [13030] 776B Enforcement of awards [13035] 776C Payment into Court [13040] 776D Offers of compromise [13045] Application of rules to proceedings under the Commercial 777 [13050] Arbitration Act 1986

[page 359]

Supreme Court Rules 2000 (Tas) TABLE OF AMENDMENTS Supreme Court Rules 2000 SR 8 commenced on 1 May 2000. Only amendments to these Rules made since the commencement of the Commercial Arbitration Act 2011 No 13 on 1 October 2012 will be included in this Table. The Rules have been amended as follows: Amending Legislation

Date of Gazette

Date of Commencement

Supreme Court Amendment (Miscellaneous) Rules 2012 No 90

Gaz of 17 October 2012

17 October 2012

[page 361]

PART 32 — PROCEEDINGS UNDER PARTICULAR STATUTES DIVISION 1 — PROCEEDINGS UNDER THE COMMERCIAL ARBITRATION 2011 [Div 1 subst SR 90 of 2012 r 16, opn 17 Oct 2012]

[13001] Interpretation of Division 1 of Part 32 771 In this Division – arbitral tribunal has the same meaning as in the Commercial Arbitration Act 2011; arbitration has the same meaning as in the Commercial Arbitration Act 2011; arbitration agreement has the same meaning as in the Commercial Arbitration Act 2011; award means an arbitral award under the Commercial Arbitration Act 2011.

[13005] Applications 772 (1) An application under the Commercial Arbitration Act 2011 must specify the relief claimed by the applicant and the provision of the Act under which the relief is claimed. (2) An application referred to in subrule (1) must be accompanied by— (a) a copy of the arbitration agreement; and (b) if the application relates to an award, a copy of that award; and

(c) an affidavit – (i) stating the material facts on which the claim for relief is based; and (ii) to which is attached any documents in support of the relief claimed. (3) An application referred to in subrule (1) is to— (a) be served on each person who may be affected by any order made on the application; or (bi) contain a request for directions as to who is to be served with the application.

[13010] Determination of preliminary point of law 773 An application to the Court for a determination under section 27J of the Commercial Arbitration Act 2011 must be made within 14 days after the date on which the consent of the arbitrator or the consent of all other parties has been obtained.

[13015] Referral to mediation 774 A request under section 8 of the Commercial Arbitration Act 2011 to refer the parties to arbitration is to be made by filing an interlocutory application.

[13020] Subpoena 775 (1) Subject to this rule, Division 3 of Part 19 applies, with any necessary modification, to the issue of a subpoena under section 27A of the Commercial Arbitration Act 2011. (2) The material to be lodged with the Court in accordance with Division 3 of Part 19 must be accompanied by a letter – [page 362]

(a) addressed to the registrar requesting the issue of the subpoena; and (b) setting out— (i) the Act and the provisions of the Act under which the request for the issue of the subpoena is made; and (ii) details of the arbitration agreement pursuant to which the subpoena is requested; and (iii) details of the connection of the person or documents sought to be subpoenaed to the arbitration proceedings; and (c) to which is attached a document signed by the members of the arbitral tribunal indicating that the request for the issue of a subpoena is made with the permission of the arbitral tribunal. (3) On receipt of a letter under subrule (2), and prior to issuing the subpoena, the registrar may refer the letter to a judge who is to— (a) determine the request; and (b) endorse the determination on the letter. (4) A subpoena for production before an arbitral tribunal may, with the leave of the Court or the arbitral tribunal, require production at such time, date and place as specified in the subpoena. (5) Unless the Court or a judge otherwise orders, a subpoena requiring production of any document or thing before an arbitral tribunal must permit the person named, instead of attending and producing it before the arbitral tribunal, to produce the document or thing— (a) to a person, and at a place, nominated in writing by the arbitral tribunal and stated in the subpoena; and (b) by hand or by post— so that the person nominated receives it no later than 2 days before the first date on which the production before the arbitral tribunal is required. (6) If a document or thing is produced in accordance with subrule (5) the person nominated – (a) if required to do so, must give a receipt to the person producing the document or thing; and (b) must produce the document or thing as the nature of the case requires or as the arbitral tribunal may direct. (7) Subrule (5) does not apply to a requirement in a subpoena that a person attend before an arbitral tribunal to give evidence.

[13025] Court assistance in taking of evidence 776 (1) Subject to this rule, Division 2 of Part 19 applies, with any necessary modification, to any arbitration when a request for the assistance of the Court is made in accordance with section 27 of the Commercial Arbitration Act 2011. (2) At the conclusion of the examination of any witness before an examiner, the Court may make orders relating to the transmission of depositions which vary from the rules relating to the transmission prescribed in rule 485. (3) The Court may make orders for the transmission of depositions to an arbitral tribunal. [page 363]

[13030] Appeal and application for leave for appeal 776A (1) An appeal pursuant to section 34A of the Commercial Arbitration Act 2011 is— (a) commenced by notice of appeal stating the grounds of appeal; and (b) accompanied by a statement— (i) briefly setting out the question of law that arises out of the award to which the appeal relates and the essential facts found by the arbitral tribunal from which that question arises; and (ii) any other material relevant to the determinations required under section 34A(3) of that Act; and (iii) the date relevant to the calculation of the appeal period specified in section 34A(6) of that Act; and (iv) if applicable, stating that the parties agree that an appeal can be brought under section 34A of that Act and providing the date that the parties reached such agreement. (2) A notice of appeal is to— (a) be served on any person who may be affected by any order made on the

application; or (b) contain a request for directions as to who is to be served with the application. (3) An application under section 34A(1) of the Commercial Arbitration Act 2011 for leave to appeal to the Court is to be served on each person who may be affected by the proposed appeal at least 7 days before the day appointed for the hearing of the application. (4) Subject to this rule, Division 4 of Part 27 applies, with any necessary modification, to an appeal under section 34A of the Commercial Arbitration Act 2011.

[13035] Enforcement of awards 776B An application for an order under section 35 of the Commercial Arbitration Act 2011 for the enforcement of an award must— (a) be accompanied by— (i) the material, or the equivalent of the material, required to be produced to the Court under section 9 of the International Arbitration Act 1974 of the Commonwealth; and (ii) an affidavit stating— (A) the extent to which the award has not been complied with at the date the application is made; and (B) the usual or last known place of residence or business of the person against whom it is sought to enforce the award or, if that is a corporation, its last known registered office; and (b) be served on the person against whom enforcement is sought.

[13040] Payment into Court 776C (1) A party to an arbitration agreement may pay into Court a sum of money in satisfaction of all or any of the claims made by an opposite party— (a) within 28 days after the date fixed for the commencement of the arbitration; or (b) with the leave of the arbitral tribunal, after the expiry of that period.

[page 364] (2) A person who pays a sum of money into Court under subrule (1) within the period set out in that subrule is to give notice of the payment in accordance with the prescribed form. (3) With the leave of the arbitral tribunal, a party may increase, decrease or withdraw a sum of money paid into Court by that party. (4) With the leave of the arbitral tribunal, the party in respect of whose claim the sum of money was paid may accept that sum of money in full satisfaction of the claim. (5) An arbitral tribunal who gives leave under subrule (3) or (4) is to deliver to the Principal Registrar a memorandum providing for the disposition of the money in Court. (6) The arbitral tribunal is to deliver to the Principal Registrar any part of an award providing for the disposition of money in Court. (7) The Principal Registrar may deal with money in Court in accordance with the instructions of the arbitral tribunal. (8) If any doubt or dispute arises as to the action to be taken by the Principal Registrar, the Principal Registrar, after giving notice to the parties, may refer the doubt or dispute to a judge. (9) Part 8 applies, with any necessary modifications, to a payment into Court under the Act.

[13045] Offers of compromise 776D Part 9 applies, with any necessary modification, to an offer of compromise of arbitration proceedings under the Commercial Arbitration Act 2011.

[13050] Application of rules to proceedings under the Commercial Arbitration Act 1986 777 (1) In this rule— commencement day means the day on which the Supreme Court Amendment (Miscellaneous) Rules 2012 commence;

former arbitration rules means the rules contained in this Division as in force immediately before the commencement day. (2) The former arbitration rules apply to any proceedings in respect of an arbitration to which the Commercial Arbitration Act 1986 applies.

[page 365]

Supreme Court Civil Rules 2006 (Extracts) TABLE OF PROVISIONS Rule

Title Paragraph CHAPTER 10 — ALTERNATIVE DISPUTE RESOLUTION PART 2 — ARBITRATION 221 Court’s power to refer action for arbitration [14001] 222 Conduct of arbitration [14005] CHAPTER 15 — STATUTORY PROCEEDINGS PART 2 — PROCEEDINGS UNDER PARTICULAR ACTS 309A Commercial Arbitration Act 2011 [Supreme Court only] [14205] 309A Commercial Arbitration Act 2011 [District Court only] [14210] PART 4 — ARBITRATION PROCEEDINGS DIVISION 1 — GENERAL 323 Interpretation [14300] 324 Commencement of proceeding [14305] 325 Documents not in English language [14310] DIVISION 2 — INTERNATIONAL COMMERCIAL ARBITRATION Application for stay and referral to arbitration — foreign 326 [14315] arbitration agreements 327 Application to enforce foreign award [14320] 328 Application for referral to arbitration — Model Law [14325] 329 Subpoenas [14330]

330 331 332 333

Application relating to evidence for arbitration Application relating to disclosure of confidential information Application for other order — Model Law Application to set aside award — Model Law

[14335] [14340] [14345] [14350] [page 366]

Rule Title Paragraph 334 Enforcement of award — Model Law [14355] 335 Enforcement of Investment Convention award [14360] DIVISION 3 — DOMESTIC COMMERCIAL ARBITRATION 336 Application for referral to arbitration [14365] 337 Subpoenas [14370] 338 Application relating to evidence for arbitration [14375] 339 Application relating to disclosure of confidential information [14380] 340 Application for other order [14385] 341 Preliminary point of law [14390] 342 Application to set aside award [14395] 343 Appeal [14400] 344 Application to enforce award [14405]

[page 367]

Supreme Court Civil Rules 2006 (SA) TABLE OF AMENDMENTS Supreme Court Civil Rules 2006 were notified in Gaz 44 of 27 July 2006 and commenced on 4 September 2006. Only amendments to the Rules made since the commencement of the Commercial Arbitration Act 2011 No 32 on 1 January 2012 will be included in this Table. The Rules have been amended as follows: Amending Legislation Supreme Court Civil Rules 2006 (Amendment No 18) District Court Civil Rules 2006 (Amendment No 19) South Australia Supreme Court Civil Rules 2006 (Amendment No 26)

Date of Gazette Gaz 84 of 15 December 2011 p 4979 Gaz 84 of 15 December 2011 p 4965 Gaz 69 of 11 September 2014 p 4419

Date of Commencement 1 January 2012

1 January 2012

1 October 2014

[page 369]

CHAPTER 10 — ALTERNATIVE DISPUTE RESOLUTION PART 2 — ARBITRATION

[14001] Court’s power to refer action for arbitration 221 (1) The Court may, on its own initiative or on application by a party, appoint an arbitrator in an action and refer the action or a particular issue arising in the action for arbitration. (2) The arbitrator is to be appointed if practicable with the agreement of the parties (but their agreement is not essential). (3) A Judge or Master is eligible to be appointed as an arbitrator.

[14005] Conduct of arbitration 222 (1) An arbitration is to be conducted as directed by the Court. Example— The Court might direct that an arbitration be conducted in the same way as an arbitration under the Commercial Arbitration Act 2011.* (2) An arbitrator is an officer of the Court and has such of the Court’s powers as the Court may assign (but not the power to punish for contempt). (3) The Court may, on application by an arbitrator or an interested person, make an order for punishment of— (a) a contempt committed in the face of an arbitrator; or (b) a contempt of an order of an arbitrator.

(4) The arbitrator’s award may be registered in the Court and enforced as a judgment of the Court. * Editor’s Note: r 222(1) has not yet been amended to include references to

the Commercial Arbitration Act 2011 No 32. [page 370]

CHAPTER 15 — STATUTORY PROCEEDINGS PART 2 — PROCEEDINGS UNDER PARTICULAR ACTS

[14205] Commercial Arbitration Act 2011 [Supreme Court only] 309A (1) In this rule — Act means the Commercial Arbitration Act 2011 (SA). (2) Subject to this rule, proceedings invoking the Court’s jurisdiction under the Act are to be commenced by a summons under rule 34. (3) If there is, or has been, an action in the Court between the parties relating to an arbitration, requests and applications to the Court under the Act are to be made by an interlocutory application under rule 131 in that action. (4) A request under s 8(1) of the Act is to be made by an interlocutory application under rule 131 in the action to which the request relates. (5) A party seeking the leave of the Court under s 27J of the Act is to do so by interlocutory application under rule 131 in the proceeding to which the application relates and, for that purpose, proceedings may be commenced without the party having first obtained the leave of the Court. (6) Unless any other legislation requires that a subpoena be issued only with

the permission or leave of the Court, an application under the Act for the issue of a subpoena may be dealt with by the Registrar under rule 308(1). (7) An assessment of costs under s 33B(5) of the Act is to proceed under rule 272. (8) Applications for leave to appeal under s 34A(1)(b) of the Act are to be made under Part 3 of Chapter 13 of these Rules and, unless the Court directs otherwise, appeals and applications for leave to appeal under the Act will be heard by a single Judge. (9) An application under s 35 of the Act for the enforcement of an award will be dealt with by the Registrar under rule 308(1), and is to comply with rule 308(2). (10) In relation to offers of settlement: (a) rules 187 and 188 of these Rules apply to domestic commercial arbitrations with such modifications as are appropriate for their application; (b) a party to a domestic commercial arbitration may file an offer of settlement in the Court under rule 187 without having first commenced proceedings in the Court. [r 309A insrt Gaz 84 of 15 December 2011 r 6, opn 1 Jan 2012]

[14210] Commercial Arbitration Act 2011 [District Court only] 309A (1) In this rule — Act means the Commercial Arbitration Act 2011 (SA). (2) Subject to this rule, proceedings invoking the Court’s jurisdiction under the Act are to be commenced by a summons under rule 34. (3) If there is, or has been, an action in the Court between the parties relating to an arbitration, requests and applications to the Court under the Act are to be made by an interlocutory application under rule 131 in that action. [page 371] (4) A request under s 8(1) of the Act is to be made by an interlocutory

application under rule 131 in the action to which the request relates. (5) A party seeking the leave of the Court under s 27J of the Act is to do so by interlocutory application under rule 131 in the proceeding to which the application relates and, for that purpose, proceedings may be commenced without the party having first obtained the leave of the Court. (6) Unless any other legislation requires that a subpoena be issued only with the permission or leave of the Court, an application under the Act for the issue of a subpoena may be dealt with by the Registrar under rule 308(1). (7) An assessment of costs under s 33B(5) of the Act is to proceed under rule 272. (8) Applications for leave to appeal under s 34A(1)(b) of the Act are to be made under Part 3 of Chapter 13 of these Rules. (9) An application under s 35 of the Act for the enforcement of an award will be dealt with by the Registrar under rule 308(1), and is to comply with rule 308(2). (10) In relation to offers of settlement: (a) rules 187 and 188 of these Rules apply to domestic commercial arbitrations with such modifications as are appropriate for their application; (b) a party to a domestic commercial arbitration may file an offer of settlement in the Court under rule 187 without having first commenced proceedings in the Court. [s 309A insrt Gaz 84 of 15 December 2011 r 6, opn 1 Jan 2012]

PART 4 — ARBITRATION PROCEEDINGS DIVISION 1 — GENERAL

[14300] Interpretation 323 (1) In this Part, unless a contrary intention appears— arbitration means an arbitration to which the International Arbitration Act or the Commercial Arbitration Act applies as the case requires; Commercial Arbitration Act means the Commercial Arbitration Act 2011;

International Arbitration Act means the International Arbitration Act 1974 (Cth); Model Law means the UNCITRAL Model Law on International Commercial Arbitration, adopted by the United Nations Commission on International Trade Law on 21 June 1985 as amended by the United Nations Commission on International Trade Law on 7 July 2006, the English text of which is set out in Schedule 2 to the International Arbitration Act. (2) Unless the contrary intention appears— (a) expressions used in this Part have the same meaning as in the International Arbitration Act or the Commercial Arbitration Act, as the case requires; (b) expressions used in Division 2 have the same meaning as in the International Arbitration Act; and (c) expressions used in Division 3 have the same meaning as in the Commercial Arbitration Act. [page 372]

[14305] Commencement of proceeding 324 (1) Subject to subrules (2) and (3), an application must, if a proceeding has not been started in the Court in relation to the arbitration, be made by originating application. (2) An application may, if a proceeding has been started in the Court in relation to the arbitration, be made by interlocutory application. (3) An application under rules 326, 328 or 336 is to be made by interlocutory application in the proceeding to which the application relates.

[14310] Documents not in English language 325 A party to a proceeding to which this Part applies who seeks to rely on a document that is not in the English language is to provide a certified English translation of the document— (a) to the Court; and

(b) to any other party to the proceeding. Note 1— Section 9 of the International Arbitration Act also deals with the translation of awards and arbitration agreements in proceedings to which Part II of the International Arbitration Act applies. Note 2— Section 35 of the Commercial Arbitration Act also deals with the translation of awards and arbitration agreements in proceedings to which the Commercial Arbitration Act applies.

DIVISION 2 — INTERNATIONAL COMMERCIAL ARBITRATION

[14315] Application for stay and referral to arbitration — foreign arbitration agreements 326 (1) An application under section 7 of the International Arbitration Act to stay the whole or part of a proceeding and refer the parties to arbitration is to be in an approved form. (2) The application is to be accompanied by— (a) a copy of the arbitration agreement; and (b) an affidavit stating the material facts on which the application for relief is based.

[14320] Application to enforce foreign award 327 (1) An application under section 8(2) of the International Arbitration Act to enforce a foreign award is to be in an approved form. (2) The application is to be accompanied by— (a) the documents referred to in section 9 of the International Arbitration Act; and (b) an affidavit stating— (i) the extent to which the foreign award has not been complied with

(ii)

at the date the application is made; and the usual or last known place of residence or business of the person against whom it is sought to enforce the foreign award or, if the person is a company, the last known registered office of the company. [page 373]

[14325] Application for referral to arbitration — Model Law 328 (1) An application under article 8 of the Model Law to refer parties to arbitration is to be in an approved form. (2) The application is to be accompanied by— (a) a copy of the arbitration agreement; and (b) an affidavit stating the material facts on which the application for relief is based.

[14330] Subpoenas 329 (1) An application under section 23(3) of the International Arbitration Act to issue a subpoena is to be in an approved form. (2) The application is to be accompanied by— (a) a draft subpoena in accordance with subrule (3); and (b) an affidavit stating— (i) the parties to the arbitration; (ii) the name of the arbitral tribunal conducting the arbitration; (iii) the place where the arbitration is being conducted; (iv) the nature of the arbitration; (v) the terms of the permission given by the arbitral tribunal for the application; (vi) the conduct money (if appropriate) to be paid to the addressee; and (vii) the witness expenses payable to the addressee.

(3) For the purposes of subrule (2)(a), the draft subpoena is to be in accordance with— (a) for a subpoena to attend for examination before an arbitral tribunal — an approved form; or (b) for a subpoena to produce to the arbitral tribunal the documents mentioned in the subpoena — an approved form; or (c) for a subpoena to attend for examination and produce documents — an approved form. (4) The Court may— (a) fix an amount that represents the reasonable loss and expense the addressee will incur in complying with the subpoena; and (b) direct that the amount be paid by the applicant to the addressee before or after the addressee complies with the subpoena. (5) An amount fixed under subrule (4) is in addition to any conduct money or witness expenses payable under subrule (2)(b)(vi) or (vii).

[14335] Application relating to evidence for arbitration 330 (1) An application for an order under section 23A(3) of the International Arbitration Act that a person attend before the Court for examination or to produce documents or do a thing required by an arbitral tribunal for an arbitration is to be in an approved form. (2) An application under subrule (1) is to be accompanied by an affidavit stating— (a) the person against whom the order is sought; [page 374] (b) the order sought; (c) the ground under section 23A(1) of the International Arbitration Act relied on; (d) the terms of the permission given by the arbitral tribunal for the application; and

(e) the material facts relied on for the making of the order.

[14340] Application relating to disclosure of confidential information 331 (1) An application under section 23F or 23G of the International Arbitration Act for an order prohibiting or allowing the disclosure of confidential information is to be in an approved form. (2) An application under subrule (1) is to be accompanied by an affidavit stating— (a) the person against whom the order is sought; (b) the order sought; (c) the material facts relied on for the making of the order; (d) if the application is made under section 23F of the International Arbitration Act — the terms of the order of the arbitral tribunal allowing disclosure of the information and the date the order was made; (e) if the application is made under section 23G of the International Arbitration Act, either— (i) the date the arbitral tribunal’s mandate was terminated; or (ii) the date and the terms of— (A) the request made to the arbitral tribunal for disclosure of the confidential information; and (B) the arbitral tribunal’s refusal to allow disclosure.

[14345] Application for other order — Model Law 332 (1) An application for relief under article 11(3), 11(4), 13(3), 14, 16(3), 17H(3), 17I, 17J or 27 of the Model Law is to be in an approved form. (2) The application is to be accompanied by an affidavit stating the material facts on which the application for relief is based.

[14350] Application to set aside award —

Model Law 333 (1) An application under article 34 of the Model Law to set aside an award is to be in an approved form. (2) The application is to identify— (a) if the plaintiff relies on article 34(2)(a) of the Model Law — which subparagraph of article 34(2)(a) is relied upon; or (b) if the plaintiff relies on article 34(2)(b) of the Model Law — which subparagraph of article 34(2)(b) is relied upon; and (c) brief grounds for seeking the order. (3) The application is to be accompanied by an affidavit exhibiting a copy of — (a) the arbitration agreement; and (b) the award including the reasons of the arbitral tribunal for the award. (4) The application is to be accompanied by an affidavit identifying— (a) the detailed grounds for seeking the order; [page 375] (b) the material facts relied on for making the order; and (c) the date on which the plaintiff received the award or, if a request was made under article 33 of the Model Law to the arbitral tribunal to correct the award, the date on which that request was disposed of by the arbitral tribunal. (5) The application and supporting affidavit are to be served on any person whose interest might be affected by setting aside of the award. (6) Any application by a party to the arbitration under article 34(4) of the Model Law is to be made by interlocutory application in the proceeding instituted under subrule (1).

[14355] Enforcement of award — Model Law 334

(1) An application under article 35 of the Model Law to enforce an

award is to be in an approved form. (2) The application is to be accompanied by— (a) the documents referred to in article 35 of the Model Law; and (b) an affidavit stating— (i) the extent to which the award has not been complied with at the date the application is made; and (ii) the usual or last known place of residence or business of the person against whom it is sought to enforce the award or, if the person is a company, the last known registered office of the company.

[14360] Enforcement of Investment Convention award 335 (1) An application under section 35(2) of the International Arbitration Act to enforce an Investment Convention award is to be in an approved form. Note— award is defined in section 31(1) of the International Arbitration Act. (2) The application is to be accompanied by an affidavit stating— (a) the extent to which the award has not been complied wit (a) the extent to which the award has not been complied with at the date the application is made; and (b) the usual or last known place of residence or business of the person against whom it is sought to enforce the award or, if the person is a company, the last known registered office of the company.

DIVISION 3 — DOMESTIC COMMERCIAL ARBITRATION

[14365] Application for referral to arbitration 336

(1) An application under section 8 of the Commercial Arbitration Act

to refer the parties to arbitration is to be in an approved form. (2) The application is to be accompanied by— (a) a copy of the arbitration agreement; and (b) an affidavit stating the material facts on which the application for relief is based.

[14370] Subpoenas 337 (1) An application under section 27A of the Commercial Arbitration Act to issue a subpoena is to be in an approved form. [page 376] (2) The application is to be accompanied by— (a) a draft subpoena in accordance with subrule (3); and (b) an affidavit stating— (i) the parties to the arbitration; (ii) the name of the arbitral tribunal conducting the arbitration; (iii) the place where the arbitration is being conducted; (iv) the nature of the arbitration; (v) the terms of the permission given by the arbitral tribunal for the application; (vii) the conduct money (if appropriate) to be paid to the addressee; and (viii) the witness expenses payable to the addressee. (3) For the purposes of subrule (2)(a), the draft subpoena is to be in accordance with— (a) for a subpoena to attend for examination before an arbitral tribunal — an approved form; or (b) for a subpoena to produce to the arbitral tribunal the documents mentioned in the subpoena — an approved form; or (c) for a subpoena to attend for examination and produce documents — an approved form. (4) The Court may— (a) fix an amount that represents the reasonable loss and expense the

addressee will incur in complying with the subpoena; and (b) direct that the amount be paid by the applicant to the addressee before or after the addressee complies with the subpoena. (5) An amount fixed under subrule (4) is in addition to any conduct money or witness expenses payable under subrule (2)(b)(vi) or (vii).

[14375] Application relating to evidence for arbitration 338 (1) An application for an order under section 27B of the Commercial Arbitration Act that a person attend before the Court for examination or to produce documents or do a thing required by an arbitral tribunal for an arbitration is to be in an approved form. (2) An application under subrule (1) is to be accompanied by an affidavit stating— (a) the person against whom the order is sought; (b) the order sought; (c) the ground under section 27B of the Commercial Arbitration Act relied on; (d) the terms of the permission given by the arbitral tribunal for the application; and (e) the material facts relied on for the making of the order.

[14380] Application relating to disclosure of confidential information 339 (1) An application under section 27H or 27I of the Commercial Arbitration Act for an order prohibiting or allowing the disclosure of confidential information is to be in an approved form. [page 377] (2) An application under subrule (1) is to be accompanied by an affidavit

stating— (a) the person against whom the order is sought; (b) the order sought; (c) the material facts relied on for the making of the order; (d) if the application is made under section 27H of the Commercial Arbitration Act — the terms of the order of the arbitral tribunal allowing disclosure of the information and the date the order was made; (e) if the application is made under section 27I of the Commercial Arbitration Act, either— (i) the date the arbitral tribunal’s mandate was terminated; or (ii) the date and the terms of— (A) the request made to the arbitral tribunal for disclosure of the confidential information; and (B) the arbitral tribunal’s refusal to allow the disclosure.

[14385] Application for other order 340 (1) An application for relief under section 11(3), 11(4), 13(4), 14, 16(9), 17H, 17I, 17J, 19(6) or 27 of the Commercial Arbitration Act is to be in an approved form. (2) The application is to be accompanied by an affidavit stating the material facts on which the application for relief is based.

[14390] Preliminary point of law 341 (1) An application under section 27J of the Commercial Arbitration Act for leave to apply for determination of a question of law arising in the course of an arbitration and, if leave be granted, for the determination of the question of law, is to be in an approved form. (2) The application is to be accompanied by an affidavit exhibiting— (a) a copy of the arbitration agreement; and (b) evidence of the consent of the arbitrator or the consent of all the other parties as required by section 27J(2) of the Commercial Arbitration Act. (3) The application is to be accompanied by an affidavit identifying— (a) the name and usual or last known place of residence or business of any

person whose interest might be affected by the proposed determination of the question of law or, if the person is a company, the last known registered office of the company; (b) the nature of the dispute with sufficient particularity to give an understanding of the context in which the question of law arises; (c) the facts on the basis of which the question of law is to be determined and the basis on which those facts are stated, including whether they are agreed, assumed, found by the arbitral tribunal or otherwise; and (d) the detailed grounds on which it is contended that leave should be granted. (4) The application and supporting affidavit are to be served on any person whose interest might be affected by determination of the question of law. (5) The Court may if it thinks fit hear the question of law at the same time as the application for leave to determine the question. [page 378] (6) If the Court first hears and grants the application for leave, it may make such orders as it thinks fit for the hearing and determination of the question of law.

[14395] Application to set aside award 342 (1) An application under section 34 of the Commercial Arbitration Act to set aside an award is to be in an approved form. (2) The application is to identify— (a) if the plaintiff relies on section 34(2)(a) of the Commercial Arbitration Act — which subparagraph of section 34(2)(a) is relied upon; or (b) if the plaintiff relies on section 34(2)(b) of the Commercial Arbitration Act — which subparagraph of section 34(2)(b) is relied upon; and (c) brief grounds for seeking the order. (3) The application is to be accompanied by an affidavit exhibiting a copy of — (a) the arbitration agreement; and (b) the award including the reasons of the arbitral tribunal for the award.

(4) The application is to be accompanied by an affidavit identifying— (a) the detailed grounds for seeking the order; (b) the material facts relied on for making the order; and (c) the date on which the plaintiff received the award or, if a request was made under section 33 of the Commercial Arbitration Act to the arbitral tribunal to correct the award, the date on which that request was disposed of by the arbitral tribunal. (5) The application and supporting affidavit are to be served on any person whose interest might be affected by setting aside of the award. (6) Any application by a party to the arbitration under section 34(4) of the Commercial Arbitration Act is to be made by interlocutory application in the proceeding instituted under subrule (1).

[14400] Appeal 343 (1) An application under section 34A of the Commercial Arbitration Act for leave to appeal on a question of law arising out of an award is to be in an approved form. (2) The application is to be accompanied by an affidavit exhibiting— (a) a copy of the arbitration agreement; (b) a copy of the award including the reasons of the arbitral tribunal for the award; and (c) evidence of the consent of all parties that an appeal may be made under section 34A of the Commercial Arbitration Act. (3) The application is to be accompanied by an affidavit identifying— (a) the name and usual or last known place of residence or business of any person whose interest might be affected by the proposed appeal or, if the person is a company, the last known registered office of the company; (b) the nature of the dispute with sufficient particularity to give an understanding of the context in which the question of law arises; (c) where in the award and how the arbitral tribunal determined the question of law or when and how the arbitral tribunal was asked to determine the question of law; [page 379]

(d) the relevant facts found by the arbitral tribunal on the basis of which the question of law is to be determined; (e) why determination of the question of law will substantially affect the rights of one or more parties; (f) why it is contended that the decision of the arbitral tribunal on the question of law is obviously wrong or that the question of law is of general public importance and the decision of the arbitral tribunal is open to serious doubt; and (g) why it is just and proper in the circumstances for the question to be determined by the Court. (4) The application is to be accompanied by a succinct written outline of the argument in support of the application for leave and the appeal if leave is granted. (5) The application and the supporting material are to be served on any person whose interest might be affected by the proposed appeal. (6) Within 14 calendar days after service upon it, a party may file and serve any answering material, including a succinct written outline of the argument in opposition to the application for leave and the appeal if leave is granted. (7) If it appears to the Court that an oral hearing is required, the Court may if it thinks fit hear the appeal on the question of law at the same time as it hears the application for leave to appeal. (8) If the Court first grants the application for leave before hearing the appeal on the merits, it may make such orders as it thinks fit for the hearing and determination of the appeal. (9) When an application for leave to appeal is brought or leave to appeal is granted, the Court may suspend or discharge any enforcement order made in respect of the award the subject of the proposed appeal.

[14405] Application to enforce award 344 (1) An application under section 35 of the Commercial Arbitration Act to enforce an award is to be in an approved form. (2) The application is to be accompanied by— (a) the documents referred to in section 35 of the Commercial Arbitration Act; and (b) an affidavit stating—

(i) (ii)

the extent to which the award has not been complied with at the date the application is made; and the usual or last known place of residence or business of the person against whom it is sought to enforce the award or, if the person is a company, the last known registered office of the company.

[page 381]

South Australia Supreme Court Civil Supplementary Rules 2014 Schedule 3 — Approved Forms (Extracts) CONTENTS Form Title 61 Interlocutory application for stay and referral to arbitration 62 Originating application to enforce foreign award 63 Interlocutory application for referral to arbitration 64 Originating application for issue of subpoena 65A Subpoena to attend for examination 65B Subpoena to produce documents 65C Subpoena to attend for examination and produce documents Originating application for order to give evidence or produce 66 documents Originating application to prohibit/allow disclosure of 67 confidential information 68 Originating application for relief under Model Law Originating application to set aside award under article 34 of 69 Model Law 70 Originating application to enforce award

Paragraph [14500] [14505] [14510] [14515] [14520] [14525] [14530] [14535] [14540] [14545] [14550] [14555]

71

Originating application to enforce Investment Convention award 72 Interlocutory application for referral to arbitration 73 Originating application for issue of subpoena 74A Subpoena to attend for examination 74B Subpoena to produce documents 74C Subpoena to attend for examination and produce documents Originating application for order to give evidence or produce 75 documents Originating application relating to disclosure of confidential 76 information 77 Originating application for other order 78 Originating application for determination of question of law 79 Originating application to set aside award 80 Originating application for leave to appeal against award 91 Originating application to enforce award

[14560] [14565] [14570] [14575] [14580] [14585] [14590] [14595] [14600] [14605] [14610] [14615] [14620]

[page 382]

[14500]

Form 61

INTERLOCUTORY APPLICATION FOR STAY AND REFERRAL TO ARBITRATION

[page 383]

[page 384]

[14505]

Form 62

ORIGINATING APPLICATION TO ENFORCE FOREIGN AWARD

[page 385]

[page 386]

[14510]

Form 63

INTERLOCUTORY APPLICATION FOR

REFERRAL TO ARBITRATION UNDER ARTICLE 8 OF THE MODEL LAW

[page 387]

[page 388]

[14515]

Form 64

ORIGINATING APPLICATION FOR ISSUE OF SUBPOENA

[page 389]

[page 390]

[14520]

Form 65A

SUBPOENA TO ATTEND FOR EXAMINATION

[page 391]

[page 392]

[page 393]

[page 394]

[14525]

Form 65B

SUBPOENA TO PRODUCE DOCUMENTS

[page 395]

[page 396]

[page 397]

[page 398]

[page 399]

[page 400]

[14530]

Form 65C

SUBPOENA TO ATTEND FOR EXAMINATION AND PRODUCE DOCUMENTS

[page 401]

[page 402]

[page 403]

[page 404]

[page 405]

[page 406]

[14535]

Form 66

ORIGINATING APPLICATION FOR ORDER TO GIVE EVIDENCE OR PRODUCE DOCUMENTS

[page 407]

[page 408]

[14540]

Form 67

ORIGINATING APPLICATION TO PROHIBIT/ALLOW DISCLOSURE OF CONFIDENTIAL INFORMATION

[page 409]

[page 410]

[page 411]

[14545]

Form 68

ORIGINATING APPLICATION FOR RELIEF UNDER MODEL LAW

[page 412]

[page 413]

[14550]

Form 69

ORIGINATING APPLICATION TO SET ASIDE

AWARD UNDER ARTICLE 34 OF MODEL LAW

[page 414]

[page 415]

[page 416]

[14555]

Form 70

ORIGINATING APPLICATION TO ENFORCE AWARD UNDER ARTICLE 35 OF THE MODEL LAW

[page 417]

[page 418]

[14560]

Form 71

ORIGINATING APPLICATION TO ENFORCE

INVESTMENT CONVENTION AWARD

[page 419]

[page 420]

[14565]

Form 72

INTERLOCUTORY APPLICATION FOR REFERRAL TO ARBITRATION

[page 421]

[page 422]

[14570]

Form 73

ORIGINATING APPLICATION FOR ISSUE OF SUBPOENA

[page 423]

[page 424]

[14575]

Form 74A

SUBPOENA TO ATTEND FOR EXAMINATION

[page 425]

[page 426]

[page 427]

[page 428]

[14580]

Form 74B

SUBPOENA TO PRODUCE DOCUMENTS

[page 429]

[page 430]

[page 431]

[page 432]

[page 433]

[page 434]

[14585]

Form 74C

SUBPOENA TO ATTEND FOR EXAMINATION AND PRODUCE DOCUMENTS

[page 435]

[page 436]

[page 437]

[page 438]

[page 439]

[page 440]

[14590]

Form 75

ORIGINATING APPLICATION FOR ORDER TO GIVE EVIDENCE OR PRODUCE DOCUMENTS

[page 441]

[page 442]

[page 443]

[14595]

Form 76

ORIGINATING APPLICATION TO PROHIBIT/ALLOW DISCLOSURE OF CONFIDENTIAL INFORMATION

[page 444]

[page 445]

[page 446]

[14600]

Form 77

ORIGINATING APPLICATION FOR OTHER ORDER UNDER THE COMMERCIAL ARBITRATION ACT 2011

[page 447]

[page 448]

[14605]

Form 78

ORIGINATING APPLICATION FOR

DETERMINATION OF QUESTION OF LAW

[page 449]

[page 450]

[page 451]

[14610]

Form 79

ORIGINATING APPLICATION TO SET ASIDE AWARD

[page 452]

[page 453]

[page 454]

[14615]

Form 80

ORIGINATING APPLICATION FOR LEAVE TO APPEAL AGAINST AWARD

[page 455]

[page 456]

[page 457]

[14620]

Form 81

ORIGINATING APPLICATION TO ENFORCE AWARD

[page 458]

[page 459]

Supreme Court Rules 1971 (WA) TABLE OF PROVISIONS Rule

Title

1 2 3 4 5 6 7

ORDER 81D — ARBITRATION LAW RULES Terms used Application of this Order Court documents, headings on Commencing proceedings Subpoena to appear etc before arbitrator Taking evidence for arbitrator Costs of arbitration, assessing

Paragraph [15001] [15005] [15010] [15015] [15020] [15025] [15030]

[page 461]

Supreme Court Rules 1971 (WA) TABLE OF AMENDMENTS Supreme Court Rules 1971 were notified in Gaz of 18 November 1971 and commenced on 14 February 1972. Only amendments to the Rules made since the commencement of the Commercial Arbitration Act 2012 No 23 on 7 August 2013 will be included in this table. The Rules are amended as follows: Amending Legislation Supreme Court Amendment Rules (No 2) 2013

Date of Gazette Date of Commencement Gaz 43 of 15 rr 1, 2: 15 March 2013; March 2013 remainder: 7 August 2013

[page 463]

ORDER 81D — ARBITRATION LAW RULES* [O 81D subst Gaz 43 of 15 March 2013 r 5, opn 7 Aug 2013]

[15001] Terms used 1 In this Order— arbitration law means— (a) the International Arbitration Act 1974 (Commonwealth); (b) the Commercial Arbitration Act 2012; (c) subsidiary legislation in force under any of the above laws; arbitrator means a person who, under whatever title, conducts arbitration proceedings under an arbitration law.

[15005] Application of this Order 2 This Order applies to proceedings that can be or are commenced in the Court under an arbitration law in relation to arbitration provided for by such a law or provided under such a law.

[15010] Court documents, headings on 3 The heading of every document filed in proceedings to which this Order applies must include the title of the arbitration law under which the proceedings are being conducted.

[15015] Commencing proceedings 4 (1) To commence proceedings to which this Order applies in the Court, a person must file— (a) an originating summons; and (b) either— (i) an affidavit that states the relevant facts and to which is attached any relevant document; or (ii) a notice of motion for an order that such an affidavit is not needed. (2) The documents listed in subrule (1) must be filed within the time limit set by the relevant arbitration law.

[15020] Subpoena to appear etc before arbitrator 5 If, under an arbitration law, the Court issues a subpoena requiring a person— (a) to appear before an arbitrator; or (b) to produce any thing to an arbitrator; or (c) to do both of those, Order 36B, with any necessary changes, applies to and in relation to the subpoena.

[15025] Taking evidence for arbitrator 6 If, under an arbitration law, the Court agrees to a request for assistance in taking evidence, Order 38, with any necessary changes, applies to and in relation to executing the request. [page 464]

[15030] Costs of arbitration, assessing 7 Order 66, with any necessary changes, applies if the Court is required to assess the costs of an arbitration (other than the fees or expenses of an arbitrator). *

Editor’s Note: These Rules have not been updated to reflect the Commenrcial Arbitration Act 2012 No 23.

[page 465]

Uniform Civil Procedure Rules 1999 (Qld) Editor’s note: Section 6 of the Commercial Arbitration Act 2013 No 8, which was assented to on 14 March 2013 and commenced on 17 May 2013, allows for proceedings permitted or required by the Act to be conducted under the Uniform Civil Procedure Rules 1999.

[page 467]

Uniform Civil Procedure Rules 2005 (NSW) (Extracts) TABLE OF PROVISIONS Rule Title Paragraph PART 47 — MATTERS ARISING UNDER THE COMMERCIAL ARBITRATION ACT 2010 DIVISION 1 — GENERAL 47.1 Definitions [16001] 47.2 Preliminary point of law [16005] 47.3 Time for applications and appeals [16010] 47.4 Subpoena [16015] 47.5 Court assistance in taking evidence [16020] 47.6 Application to enforce award [16025] 47.7 Leave to appeal [16030] 47.8 Method of entry into the Commercial Arbitration List [16035] DIVISION 2 — OFFER OF COMPROMISE 47.10 Application of Division [16040] 47.11 Interim awards [16045] 47.12 Mode of making offer [16050] 47.13 Application [16055] 47.14 Time for making or accepting offer [16060] 47.15 Time for payment [16065] 47.16 Withdrawal of acceptance [16070]

47.17 47.18 47.19 47.20

Offer without prejudice Disclosure of offer to arbitrator Failure to comply with accepted offer Costs where offer not accepted

[16075] [16080] [16085] [16090]

[page 468] [page 469]

Uniform Civil Procedure Rules 2005 (NSW) TABLE OF AMENDMENTS Uniform Civil Procedure Rules 2005 No 418 were notified in Gaz 100 of 10 August 2005 and commenced on 15 August 2005. Only amendments to these Rules made since the commencement of the Commercial Arbitration Act 2010 No 61 on 1 October 2010 will be included in this Table. The Rules have been amended as follows: Date of Date of Gazette Commencement Uniform Civil Procedure (Amendment No 37) LW 5 5 October 2010 2010 SI 571 of 2010 October 2010 Amending Legislation

[page 470] [page 471]

PART 47 — MATTERS ARISING UNDER THE COMMERCIAL ARBITRATION ACT 2010 [Pt 47 heading subst SI 571 of 2010 Sch 1[1], opn 5 Oct 2010]

DIVISION 1 — GENERAL [Div 1 subst SI 571 of 2010 Sch 1[2], opn 5 Oct 2010]

[16001] Definitions 47.1 In this Part: arbitral tribunal has the same meaning as it has in the Commercial Arbitration Act 2010. arbitration has the same meaning as it has in the Commercial Arbitration Act 2010. the court means the Supreme Court or a court exercising functions under section 6(2) of the Commercial Arbitration Act 2010. (cf SCR Part 72A, rule 1)

[16005] Preliminary point of law 47.2 An application to the court for a determination under section 27J of the Commercial Arbitration Act 2010 must be made within 14 days after the date on which the consent of the arbitral tribunal or the consents of all other parties have been obtained. (cf SCR Part 72A, rule 3)

[16010] Time for applications and appeals 47.3 (1) An application made to the Court pursuant to section 34 of the Commercial Arbitration Act 2010 must include: (a) a statement by the applicant as to the date that the party received the award, or (b) if a request has been made under section 33 of that Act, the date on which that request was disposed of by the arbitral tribunal. (2) If a party appeals on a question of law arising out of an award and the parties have agreed before the end of the appeal period specified in section 34A(6) of the Commercial Arbitration Act 2010 that an appeal may be made under section 34A(1), the originating process for the appeal is to contain a statement: (a) providing the date (or dates if there are more than two parties) that such agreement was reached, and (b) identifying the question of law, and (c) describing the nature of the dispute with sufficient particularity for an understanding as to the context in which the question of law arises under section 34A(3) and (4), and (d) specifying the respects in which it is asserted that the arbitral tribunal fell into error. (3) If a party seeks leave to appeal on a question of law arising out of an award, the originating process for the application for leave is to contain a statement of the party’s case: [page 472] (a) providing the dates relevant to the calculation of the appeal period specified in section 34A(6) of the Commercial Arbitration Act 2010, and (b) describing the nature of the case with sufficient particularity for an understanding of the matters referred to in the statement, and (c) identifying the question of law, and (d) specifying how the determination of the question will substantially affect the rights of one or more of the parties, and (e) specifying that the question is one which the arbitral tribunal was asked to determine, and

specifying the reasons for which it is asserted that, on the basis of the findings of fact in the award: (i) the decision of the tribunal on the question is obviously wrong, or (ii) the question is one of general public importance and the decision is at least open to serious doubt, and (g) specifying the reasons for which, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question. (f)

(cf SCR Part 72A, rule 5)

[16015] Subpoena 47.4 (1) Part 33 applies to the issue of a subpoena under section 27A of the Commercial Arbitration Act 2010 in the same way as it applies to the issue of a subpoena in proceedings in the court. (2) A subpoena for production before an arbitral tribunal may, with the leave of the court or the arbitral tribunal, require production on any day. (3) Unless the court otherwise orders, a subpoena requiring production of any document or thing before an arbitral tribunal must permit the person named, instead of attending and producing it before the arbitral tribunal, to produce the document or thing: (a) to a person, and at a place, nominated in writing by the arbitral tribunal and stated in the subpoena, and (b) by hand or by post, (4) If a document or thing is produced in accordance with subrule (3) the person nominated: (a) if required to do so, must give a receipt to the person producing the document or thing, and (b) must produce the document or thing as the nature of the case requires or as the arbitral tribunal may direct. (5) Subrule (3) does not apply to so much of a subpoena as requires a person to attend to give evidence. (cf SCR Part 72A, rule 7)

[16020] Court assistance in taking evidence 47.5 (1) This rule applies where a request for assistance of the court is made by an arbitral tribunal or party to an arbitration with the approval of an arbitral tribunal. (2) Rule 24.3 applies to an arbitration under the Commercial Arbitration Act 2010 in the same way as it applies to proceedings in the court. [page 473] (3) If any order is made pursuant to rule 24.3 as so applied, the other provisions of Part 24 apply as if: (a) a reference in that Part to proceedings included a reference to the arbitration proceedings, and (b) the provisions of rule 24.14(4), (5) and (6) were omitted. (4) Unless the court otherwise orders, the examiner must send the transcript of evidence, any document that constitutes an audio-visual recording and the exhibits to the registrar. (5) On receiving the transcript of evidence, the registrar must file it in the proceedings on the examination. (6) The court may make orders for the transmission to the arbitral tribunal of the transcript of evidence, document, any exhibit or copy of any exhibit and any such transcript, document, exhibit or copy is taken to have been taken or received (as the case requires) in the course of the arbitration proceedings. (cf SCR Part 72A, rule 8)

[16025] Application to enforce award 47.6 (1) An application to the court under section 35 of the Commercial Arbitration Act 2010 must join the party who seeks enforcement of the award as plaintiff and the party against whom the enforcement is sought as defendant. (2) Section 9 of the International Arbitration Act 1974 of the Commonwealth applies to proceedings in which a person seeks leave under section 35 of the Commercial Arbitration Act 2010 to enforce an award in the same way as it applies to proceedings in which a person seeks the enforcement of a foreign

award by virtue of the Commonwealth Act. (cf SCR Part 72A, rule 9)

[16030] Leave to appeal 47.7 An appeal does not lie from a direction or decision in proceedings in the court under the Commercial Arbitration Act 2010 except by leave of the court to which the appeal is to be made. (cf SCR Part 72A, rule 10)

[16035] Method of entry into the Commercial Arbitration List 47.8 An application made to the court pursuant to the Commercial Arbitration Act 2010 (including an application for an interim measure pursuant to section 17J of that Act) and the rules is to be made by summons and entered in the Commercial Arbitration List in the manner specified in the Commercial Arbitration List Practice Note as amended from time to time.

DIVISION 2 — OFFER OF COMPROMISE

[16040] Application of Division 47.10 This Division applies except so far as is otherwise agreed in writing by the parties to the arbitration agreement. (cf SCR Part 72A, rule 11)

[page 474]

[16045] Interim awards

47.11 (1) Unless the parties otherwise request, the arbitrator in any arbitration proceedings: (a) must make an interim award dealing with all questions of liability and the relief to be granted, and (b) must, before making any provision in an award with respect to the costs of the arbitration, give the parties an opportunity to be heard on the question of the costs of the arbitration. (2) Subrule (1) does not apply if an offer has been accepted in accordance with this Division. (cf SCR Part 72A, rule 12)

[16050] Mode of making offer 47.12 (1) An offer of compromise is made to a party under this Division by serving a notice of the offer on the party. (2) A notice of offer must be in writing and bear a statement to the effect that the offer is made in accordance with this Division. (cf SCR Part 72A,