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Justice Clyde Croft has voiced the need for greater judicial restraint in arbitration, warning that the application of domestic legal principles risks undermining party autonomy, international consistency, and Australia’s standing as a leading hub for commercial dispute resolution.
The Ciarb Australia Annual Lecture 2026 has called for a renewed focus on strengthening Australia’s position as a leading international arbitration hub, arguing that judicial restraint, respect for party autonomy, and a consistent international approach to arbitration are essential to enhancing efficiency, enforceability, and confidence in commercial dispute resolution.
The lecture was delivered by the Honourable Clyde Croft AM of the Supreme Court of Victoria, an experienced arbitration practitioner, during the Ciarb Australia Annual Lecture 2026, hosted by Herbert Smith Freehills Kramer, where he examined the role of the courts in strengthening Australia’s position as a leading international arbitration hub.
Drawing on his vast expertise in arbitration, Justice Croft stressed the imperative to counter the “temptation of domesticity”, contending that judicial intervention, upholding party autonomy, and adhering to global arbitration standards are critical to solidifying Australia’s status as a top-tier international arbitration seat.
“Australia’s attractiveness as a seat depends, in part, on the consistency of decisions of its courts, both in respect of other prior domestic decisions, as well as reasoned decisions of courts of other countries – particularly those in our region – where their arbitration law shares a common basis with ours in the New York Convention and the Model Law,” Justice Croft said.
Preserving party autonomy
Croft highlighted the importance of enforcing arbitration agreements and ensuring that courts do not allow disputes over validity or jurisdiction to obstruct the arbitral process.
“This necessarily promotes confidence in parties seeking to arbitrate their disputes that Australian courts will not wrestle away this decision in favour of litigation, in circumstances where the parties have clearly expressed an intention to be bound by arbitration, despite the difficulties in properly construing that agreement,” Justice Croft said.
“The court’s role is accordingly, not to be the ‘vehicle for the collateral trial’ of a party’s challenge to the arbitration agreement.
“It operates to respect party autonomy and enforce the prima facie existence of an arbitration agreement, leaving those jurisdictional matters and challenges to validity solely to the arbitral tribunal at first instance.”
Importance of international character of arbitration
Justice Croft stressed that Australian courts must acknowledge arbitration’s international character and avoid allowing familiar domestic legal principles to undermine the efficiency of arbitral proceedings.
“It has been my longstanding view that our courts must continue to resist the temptation to approach issues arising from arbitral proceedings using principles not found in the international instruments upon which these proceedings are founded,” Justice Croft said.
“Rather, resisting the temptation of domesticity requires Australian courts refrain from determining matters arising from arbitral proceedings by virtue of domestic or common law principles in circumstances where those considerations do not arise from the parties’ arbitration agreement, and no equivalent international authorities, derived from the Model Law, the New York Convention, or otherwise, empowers such consideration.
“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.”
