Greenwashing has become a key target of regulators and climate activists alike, as they bring claims against companies who now face fines, litigation and potential brand damage for misrepresenting the environmental benefits of their products, services and policies. Regulators across the world have launched campaigns against greenwashing. In the US, prior to its recent disbandment,…
Australian Arbitration Week continued in full force on the morning of 16 October 2024, with ACICA45’s panel discussion named, “Filling in the Gaps: Inferences, Presumptions, and Burdens of Proof,” hosted by Deloitte. The panel was moderated by Brisbane-based ACICA45 Steering Committee members Oliver Cook (Barrister, Level 27 Chambers) and Zara Shafruddin (Associate, Jones Day). Drawing…
On 15 October 2024, Norton Rose Fulbright hosted a breakfast panel discussion on the topic of “Hot Cakes and Hot Takes: Trends and Developments in Asia’s Energy Sector” in Brisbane as part of Australian Arbitration Week. The panel was moderated by Dylan McKimmie, Head of Arbitration and Co-Head of Energy, Norton Rose Fulbright Australia and…
Judith Levine is the President of the Australian Centre for International Commercial Arbitration (“ACICA”). Judith has been a long-serving member of ACICA and was one of its Vice-Presidents before her appointment as President in June this year. She is also a leading independent arbitrator based in Sydney, Australia, and has served as presiding, sole, and…
On 7 August 2024, the High Court of Australia (“Court”) delivered judgment in the much-anticipated Tesseract International v Pascale Construction [2024] HCA 24 in which the Court held that proportionate liability statutes apply in arbitration. This post seeks to draw attention to critical aspects of the decision of Australia’s highest court, and suggests that, properly…
On 4 August 2023, in an investor-State dispute settlement (“ISDS) arbitration commenced against Australia on 29 March 2023 under the Association of Southeast Asian Nations (“ASEAN”) Australia New Zealand Agreement for a Free Trade Area (“AANZFTA”), Singapore-incorporated Zeph filed an application for interim measures including an unusual request. Zeph sought an order that Australia’s “officers…
The judgment of the Singapore Court of Appeal (“Court”) in Voltas Ltd v York International Pte Ltd [2024] SGCA 12 (“Voltas v York”) helpfully settles the question of whether or not an arbitrator is able to impliedly reserve his or her jurisdiction after rendering a final award as a matter of Singapore law. Additionally, the…
In Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG [2024] HCA 4 (“Carmichael v BBC”), the High Court of Australia (“High Court”) upheld a stay of proceedings in the Federal Court of Australia (“Federal Court”) in favour of a London Maritime Arbitrators Association (“LMAA”) arbitration seated in London. This unanimous…
On 22 February 2024, I am pleased to deliver the 6th ADR Address of the Supreme Court of New South Wales, co-organised by the Australian Disputes Centre. Past lecturers have been senior former or serving Australian judges, with some discussing developments in arbitration. More widely, there has been quite extensive discussion on case law and…
2023 was another year of growth for arbitration in Australia, New Zealand, and the Pacific Islands. It saw developments in investment arbitration and disputes relating to climate change, efforts to improve gender and cultural diversity, debate and guidance on the use of artificial intelligence, and pro-arbitration jurisprudence. We explore some of these key themes below….
Evidence is the beating heart of almost every dispute, and there is no exception in international arbitration. Therefore, the ‘Evidence in International Arbitration Report’ (Report) recently released by the Australian Centre for International Commercial Arbitration (ACICA) and FTI Consulting on 6 September 2023 will be invaluable for arbitration users looking to test and improve their…
On 10 October 2023, Corrs Chambers Westgarth hosted a panel discussion on the topic of “The next new variant? Arbitration in the healthcare and life sciences sector” as part of Australian Arbitration Week. The panel was moderated by Cara North of Corrs Chambers Westgarth and comprised: The Honourable Dr Annabelle Bennett AC SC, retired judge…
The Honourable Wayne Martin AC KC is an arbitrator, mediator, and former Chief Justice of Western Australia (2006-2018). As Chief Justice, Mr Martin was a notable pioneer, particularly for his creation of the Supreme Court of Western Australia’s Arbitration List. Prior to becoming Chief Justice, Mr Martin was a senior member of the Western Australian…
The rapid growth of international arbitration in the Asia-Pacific has sparked many discussions about how different cultural practices and legal traditions impact advocacy in cross-border disputes (see, for example, Global Arbitration Review’s The Guide to Advocacy). On 3 August 2023, ACICA45 and King & Wood Mallesons in Sydney hosted a session titled “Clash of Cultures…
Efforts to promote diversity in arbitration continue to garner awareness and support from arbitral institutions, legal practitioners, experts, and the arbitration community in general (see e.g., here and here). Unconscious bias is a significant barrier to achieving greater diversity and can hinder opportunities, progression, and careers. It is often tricky to address because, as its…
On Friday, 26 May 2023, the UNCITRAL National Coordination Committee for Australia (UNCCA) hosted its eighth annual May Seminar at the University of Canberra. This event, which took the form of a full-day conference, saw participants from all over Australia in the fields of government, private practice, and academia, spanning from students to eminent practitioners….
In June 2018, an International Centre for Settlement of Investment Disputes (ICSID) tribunal issued an award against Spain under the Energy Charter Treaty. The successful claimants then commenced proceedings in Australia seeking recognition and enforcement under the ICSID Convention. Spain responded that it had not submitted to, and therefore had immunity from, the jurisdiction of…
The recently reported investment treaty claim by Singapore-based mining company Zeph Investments (“Zeph”) against Australia appears to be the latest in investor-State dispute claims arising out of climate change-related measures introduced by States. The claim was first disclosed on 10 July 2023 by the Attorney General’s Department of Australia in response to a question on…
In a recent decision, the Supreme Court of Western Australia (“WA”) Court of Appeal confirmed that courts have the conclusive authority to determine the jurisdiction of arbitral tribunals. The Commercial Arbitration Act 2012 (WA) (the “Act”) confers competence upon arbitral tribunals to determine their own jurisdiction. However, courts retain authority to review questions of jurisdiction….
In recent years, there has been a drive in the international arbitration community to further diversify the pool of professionals who work in international arbitration (arbitrators and counsel alike). Most recently, this has taken form in the publication of gender diversity statistics (see, e.g., the ICC’s dispute resolution statistics 2020 or the ICCA’s 2022 Gender…
Under the UNCITRAL Model Law and the laws of many ‘arbitration friendly’ jurisdictions, courts must refer a matter subject to a valid and operative arbitration agreement to arbitration if requested by a party within the relevant time period. The principle of kompetenz-kompetenz prescribes that an arbitral tribunal may determine its own jurisdiction (which necessarily includes…
Introduction In 2022, we witnessed the growth of efforts to understand and promote the use of arbitration across Australia, New Zealand and the Pacific Islands. These efforts largely took the form of empirical studies and reports, as well as the resumption of in-person events. Legal and policy developments in both commercial and investor-state arbitration have…
A seminar on 10 November 2023 during Australian Arbitration Week discussed “Australia’s engagement in the Investor-State Dispute Settlement (ISDS) reform process”. My presentation divided successive governments’ approach into three significant eras over the last decade: anti-ISDS (2011-13), case-by-case ISDS (2014-2021), and uncertainty (since 2022). Some uncertainty has dissipated since the seminar. On 14 November 2022,…
Over the last few years, arbitrator independence and impartiality have been under heightened scrutiny by courts and tribunals. This is not unexpected. The importance of the rule against bias is best explained by Lord Denning’s dictum in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 where he held that “[j]ustice must be…
