Findings from a survey into the state’s arbitration market, run by Francis Burt Chambers and FTI Consulting, has led to the creation of the WA Arbitration Initiative’s 2019 WA Arbitration Report.
Conceding that the focus of the WA Arbitration Initiative is state based, it does feed into “the larger arbitration community and broader arbitration expertise in Australia as a whole and internationally”.
“Fundamentally, the future of arbitration in WA is linked to the future of arbitration in Australia and internationally”, the report said.
The report considered that the state “has a mature arbitration industry with many experienced practitioners” but survey data revealed that “significant amounts of dispute resolution work arising from WA projects [is] being done overseas and by people with no connection to Western Australia”.
While domestic arbitration makes use of local expertise, there is a tendency for international disputes to involve overseas or interstate arbitrators, lawyers, and counsel, the report found.
On that point, the report noted there was “opportunity for that work to also be done in WA and to involve WA people and entities” as disputes that have involved WA practitioners are typical of disputes that arise all around the globe.
The report reflected that the state’s arbitration could be further developed by recognition of the positive contribution that arbitration activity can make to the WA economy.
The promotion and development of the sector was considered as possibly providing benefits to the various allied service providers in areas including accommodation, transcript services, restaurants, associated tourism, while contributing to the recognition of WA as an international centre for the resources and energy sectors.
An area of concern, as flagged by the report, was the excessive judicialisation of the arbitration process that has seen parties look to arbitrators and lawyers involved in arbitrations to seek out “alternative, pragmatic methods to reduce time and cost”.
It contrasted with the idea also put forward that resolution of disputes by arbitration, rather than litigation, conserves scarce judicial resources.
Arbitration proceedings that don’t adhere to formal rules appeared to be generally reserved for domestic arbitration, while international arbitration was far more likely to be conducted following institutional or United Nations Commission on International Trade Law (UNCITRAL) rules over the reviewed 2017-18 financial year, the report’s authors extrapolated.
The report recommended the promotion of Western Australia as a neutral venue “in which there is a developed and mature profession providing all the services required for the just and efficient resolution of disputes arising within and outside Western Australia” as a venue easily reached from major Asian commercial centres, within the same time zone, and at a comparatively lower cost.
Lawyers Weekly previously reported on the value and costs of arbitrary dispute resolution in Western Australia.