find the latest legal job
Corporate Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Highly-respected, innovative and entrepreneurial Not-for-Profit · Competency based Board
View details
Chief Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Dynamic, high growth organisation · ASX listed market leader
View details
In-house Projects Lawyer | Renewables / Solar | 2-5 Years PQE
Category: Generalists - In House | Location: All Australia
· Help design the future · NASDAQ Listed
View details
Insurance Lawyer (3-5 PAE)
Category: Insurance and Superannuation Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Dynamic organisation ·
View details
Legal Counsel
Category: Corporate and Commercial Law | Location: North Sydney NSW 2060
· 18 month fixed term contract · 3-5 years PQE with TMT exposure
View details
Jurisdictional differences pose challenges in international arbitration

Jurisdictional differences pose challenges in international arbitration

David Jackson QC

A Sydney barrister has highlighted key challenges arbitrators face, and how arbitral procedures differ from those of court proceedings, in an address to the Chartered Institute of Arbitrators Australia.

David Jackson AM QC (pictured) recently delivered a paper to the Chartered Institute of Arbitrators Australia (CIArb) on advocacy in international arbitrations.

“There are obvious procedural similarities between arbitrations – domestic or international – and court proceedings, but there can be differences too, and in the case of international arbitrations the differences may reflect a number of matters,” he said during his address.

The first key difference Mr Jackson QC highlighted is that the arbitrators may not be from the same legal milieu.

“There may well be a spread of nationalities in the composition of the tribunal, and their backgrounds may be European or Indian or Asian, Central or South American or something else,” he said.

“Even if all the arbitrators are from countries which have a common law background, it does not mean they will all have the same, or necessarily a very similar, approach to the ultimate resolution of the matter, and also to questions of procedure.”

Mr Jackson QC said the different approaches may manifest themselves in a number of ways.

“At the simplest level, it may be reflected by silence by an arbitrator throughout oral argument. This rather Trappist approach is not uncommon for those with a European background,” he explained.

“On the other hand, it may be manifested by considerable involvement: a more interventionist, dare I say garrulous, approach. It may also manifest itself in the tribunal discouraging oral, and preferring written, submissions.”

Another procedural difference from court proceedings is that arbitration is conducted according to the applicable arbitration rules.

“Those rules may be determined by the agreement to arbitrate, or by the domestic procedural law applicable to it, or in some other way,” Mr Jackson QC said.

Those rules may allow a procedure with which lawyers from an Australian background are not entirely familiar just as an inquisitorial approach.

He added that, because of these key potential challenges, arbitrators need to keep two things in mind.

“First, it is necessary to think about the procedures that are likely to be applied, and how they may be used to your client’s best advantage, and to its least disadvantage.”

“Secondly it is worthwhile to do at least some research into the background of the arbitrators. Your side is likely to have appointed one, but the other two may otherwise be a mystery.”

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Jurisdictional differences pose challenges in international arbitration
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
LCA president Fiona McLeod SC
Aug 17 2017
Where social fault lines meet the justice gap in Aus
After just returning from a tour of the Northern Territory, LCA president Fiona McLeod SC speaks wit...
Marriage equality flag
Aug 17 2017
ALHR backs High Court challenge to marriage equality postal vote
Australian Lawyers for Human Rights (ALHR) has voiced its support for a constitutional challenge to ...
Give advice
Aug 17 2017
A-G issues advice on judiciary’s public presence
Commonwealth Attorney-General George Brandis QC has offered his advice on the public presence of jud...
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...