CLAYTON Utz national head of international arbitration and leading Asia Pacific arbitrator, Professor Doug Jones AM, has launched a comprehensive guide to arbitration law in Australia.
The book, Commercial Arbitration in Australia, was launched this month by Federal Attorney General Robert McClelland.
"To capitalise on the opportunities offered by arbitration," McClelland said, "we need to promote local expertise. Through greater knowledge, we can further develop a local arbitration culture to provide a fast, fair and cost-competitive service."
Here, for readers of The New Lawyer, is the first chapter of Professor Jones' new book in which he offers an overview of commercial arbitration in Australia.
In agreeing to the Commercial Arbitration Bill 2010 (Cth), the StandingCommittee of Attorneys-General ("SCAG") will implement a major reform ofdomestic arbitration in Australia. The Commercial Arbitration Bill 2010(Cth) is currently only enacted in New South Wales: CommercialArbitration Act 2010 (NSW) ("2010 Act"). It applies the United NationsCommission on International Trade law ("UNCITRAL") Model Law onInternational Commercial Arbitration 1985 with amendments as adopted in2006 ("Model Law").
This reform provides an opportunity to restore arbitration to a moresignificant place in the Australian commercial dispute resolution scenethan it presently enjoys. By adopting a new paradigm for domesticarbitration, and by aligning it to the international arbitration regime,the opportunity has been provided to users and lawyers alike to devisenew and more effective ways to resolve domestic commercial disputes.
This has occurred at a time when there is a momentum in encouraginginternational parties to choose Australian seats for internationalcommercial arbitration. The restoration of domestic arbitration as thepreferred form of binding non-curial dispute resolution within alegislative regime reflecting international best practice will providethe opportunity for Australian dispute practitioners, both counsel andarbitrators, to more effectively compete for international arbitrationwork locally and internationally.
This book seeks to provide an accompaniment to the reforms by not justcommenting on its new provisions but by also providing an explanation ofthe changes to the law and practice which have taken place. Itspublication very shortly after the 2010 Act coming into force willhopefully provide some impetus to the process of reform made possible bythe new legislation.
The book commences with a short history of arbitration in Australia,tracing its common law origins through to the successive legislativeregimes. Not only is this an interesting topic, it has not previouslybeen the subject of significant academic consideration. The lacuna inthis field made foray into the history of arbitration in Australiaparticularly challenging. The consequence is that the history sectiondraws heavily on primary sources and the limited exposure of this topicinternationally. Also canvassed in Chapter 1 are the problems associatedwith the legislative regime previously in place in New South Wales andwhich (at the time of publication) remains in place in the otherAustralian States and Territories.
Throughout this book, thatlegislation is collectively referred to as the "Uniform Acts", althoughonce the other States and Territories adopt the Commercial ArbitrationBill 2010 (Cth) there will be a new uniform legislative regime of whichthe 2010 Act will form part. The history of arbitration is followed by asection placing arbitration in the broader context of alternativedispute resolution. This discussion has been included for the simple, ifobvious, reason that it is necessary to appreciate the range ofmechanisms available outside the field of court proceedings and thefactors which may inform a party's choice of which procedure to adopt.
The remainder and majority of this book deals in detail with the newlegislative regime. It is a commentary on the 2010 Act on a section bysection basis, in the order in which the sections appear in the Act. Itis, however, more than a discussion of the new legislative provisions.It is an endeavour to assess the prospective operation of the 2010 Actand its impact on the existing jurisprudence of domestic commercialarbitration in Australia.
Although the 2010 Act achieves substantial uniformity with the ModelLaw, there are some differences between the provisions of eachinstrument. These are of varying degrees and significance. Somedifferences are minor and merely reflect the domestic operation of the2010 Act. For example, the definition of court is the Supreme Court ineach jurisdiction. Other differences are deliberate and substantive.
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