Australia - Part Q - Arbitration in Asia - 2nd Edition
Max Bonnell is a Partner at Henry William Lawyers in Sydney, Australia, where he specializes in commercial litigation and international arbitration. His work involves all forms of dispute resolution and spans a variety of fields including resources, telecommunications, contractual disputes, trade practices, banking, professional negligence, and Corporations Act disputes. He is experienced in mediation and arbitration as well as litigation in each of the major Australian jurisdictions. Much of his recent work has involved disputes concerning complex technological problems. Max Bonnell is a Fellow of the Chartered Institute of Arbitrators and a Fellow of the Australian Centre for International Commercial Arbitration. He has published and lectured extensively in the field of international arbitration. He regularly appears as an advocate before international tribunals. He has been named a leading individual in international arbitration by Chambers Global; a leading individual in the Who’s Who of International Commercial Arbitration, and a leading individual in Dispute Resolution in Legal 500. The Australian Disputes Centre has named him as the leading International Dispute Resolution practitioner in Australia. He is an Adjunct Professor of Law at Sydney University, where he teaches International Commercial Arbitration.
Originally from Arbitration in Asia - Second Edition
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[1] INTRODUCTION
[1.1] Background
Having signed the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (‘New York Convention’) in 1958, Australia did not set about applying it with indecent haste. Australia did not ratify the New York Convention until March 1975, so that almost seventeen years had passed before the Arbitration (Foreign Awards and Agreements) Act 1974 incorporated obligations under the New York Convention into Australian law.
The Act was re-titled the International Arbitration Act (‘IAA’) in 1988 when it was amended to implement the United Nations Commission on International Trade Law (UNCITRAL) Model Law (the ‘Model Law’) on International Commercial Arbitration as well as other minor provisions to facilitate arbitral proceedings.
Further amendments followed in 1990 when a new part and a new schedule were inserted in order to ratify the Convention on the Settlement of Investment disputes between States and Nationals of other States (ICSID or the Washington Convention’). Adoption of the Washington Convention provided a mechanism for settlement, by means of conciliation and arbitration, of investment disputes between a State party to the Convention or any constituent sub-division or agency of that State, and investors from other party States. The ratification of the Washington Convention provided a further important step in advancing the Australian government’s objective of developing the country’s role in international commercial dispute resolution. The IAA, thus, implements in Australia three international instruments dealing with international commercial arbitration.
Further significant amendments to the IAA followed in 2010, which adopted the 2006 amendments to the Model Law.
[1] INTRODUCTION
[1.1] Background
[2] LEGISLATION
[3] ARBITRATION AGREEMENTS
[3.1] Domain of arbitration
[3.2] Severability of the arbitral clause
[3.3] Enforcement of the arbitration agreement
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[5] ARBITRATION PROCEDURE
[5.1] Place of arbitration
[5.2] Law governing the arbitral proceedings
[5.3] Procedure
[5.3.1] Evidence
[5.3.2] Representation in proceedings
[5.3.3] Experts
[5.3.4] Confidentiality
[5.3.5] Consolidation of arbitral proceedings
[5.3.6] Law applicable to the substance of the dispute
[5.3.6.1] Common law
[5.3.6.2] Under the Model Law
[5.3.6.3] Transnational rules (lex mercatoria)
[5.3.7] Amiable composition
[6] AWARDS
[6.1] Form and content of award
[6.2] Making of the award
[6.3] Decision by a majority of arbitral members
[6.4] Default awards
[6.5] Settlement
[6.6] Correction and interpretation of the award
[6.7] Additional awards
[6.8] Fees and costs
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[7.1] Interim measures of protection
[7.2] Courts
[8] RECOGNITION AND ENFORCEMENT OF FOREIGN AWARDS
[8.1] Recognition and enforcement
[8.2] Defences to the enforcement of an award
[8.2.1] Incapacity
[8.2.2] Invalidity of the arbitration agreement
[8.2.3] Lack of notice or inability to present a case
[8.2.4] Award outside submission
[8.2.5] Improper composition of the arbitral authority or improper arbitral procedure
[8.2.6] Award set aside or not yet binding
[8.2.7] Subject matter not arbitrable under the lex fori
[8.2.8] Enforcement contrary to public policy
[8.2.9] Adjournment where there is an application to set aside the award at the seat
[8.2.10] State immunity
[8.3] Interim awards
[9] PRACTICAL INFORMATION
[9.1] Arbitral institutions
[9.2] Tax Issues for foreign arbitrators
[9.3] Visa requirements for arbitrators working in Australia
[10] APPENDICES
[10.1] International Arbitration Act 1974