dispute resolution where disputes are heard
and determined outside a court process
by either a single arbitrator or a number
of arbitrators. Those in favor of the use of
arbitration for commercial disputes argue
that the process is less formal and the
parties have more control, including their
ability to decide on arbitrators.
arbitration, such as the reduced time
taken to finalize disputes and the lower
cost compared to Court proceedings,
experienced and specialized arbitrators.
cross-border deals, as it does not use the
court system of either party. A total of 810
new cases were filed in the largest arbitral
institute worldwide in 2017.
of Australian Courts to International
Commercial Arbitration (ICA) at two
main stages. Firstly, the recognition
of arbitration clauses in commercial
contracts by Australian Courts, and
secondly, the enforcement of arbitral
awards by Australian Courts. Arbitration
in Australia is predominantly governed by
the International Arbitration Act 1974 (Cth)
(IAA),
Commercial Arbitration and the United
Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards
(New York Convention).
a dispute referred to them which is covered
by an arbitration clause, but which has
not yet been referred to arbitration. Where
the arbitration agreement is governed by
the law of a state that is a party to the New
York Convention or one of the parties to
the agreement is domiciled or an ordinary
resident in a country that is a party to the
New York Convention, the recognition of an
arbitration agreement is governed by the
Convention.
that are a party to the New York Convention
are required to refer parties to arbitration
it is found that the arbitration agreement
in question is null and void, inoperative or
incapable of being performed.
dispute has already been determined
through arbitration in order to enforce the
binding arbitral award that was rendered
by the arbitrator or arbitrators. In that
instance, international arbitral awards
rendered in a New York Convention
jurisdiction are generally enforceable in
other Convention jurisdictions.
legal system has been somewhat slow in
embracing ICA.
as Australia's then political isolationism
and the previous apprehensiveness of
Australian legal practitioners to consider
comparative and international law.
suggested that Australia's adoption of
both "top-down" and "bottom-up" reform
has successfully transformed Australia's
approach to the "top-down" level. This has
included the 2010 and 2018 amendments
to the IAA.
Agreements
incorporating Article 2 of the New York
Convention is Section 7(2) of the IAA,
stay proceedings either in whole or in
part at the request of one of the parties
when presented with an unresolved matter
Group at Carroll & O'Dea Lawyers. His practice
includes advising on a variety of issues for
businesses, including acquisitions and disposals,
joint ventures, contracts and employment
arrangements, international supply and
distributorship arrangements and associated
disputes and regulatory issues.
James Pinkerton.
Level 18, St. James Centre
111 Elizabeth Street
Sydney, New South Wales 2000 Australia
codea.com.au