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…
The annual “Great Debate” took place on the fourth day of Australian Arbitration Week. This event, organised with the support of hosting sponsor Corrs Chambers Westgarth, has now become a mainstay of Australian Arbitration Week, and involves a lively comedic debate between Team Arbitration and Team Litigation about which method of dispute resolution should reign…
On the second day of Australian Arbitration Week, DLA Piper’s office in Melbourne, Australia, hosted a panel addressing “Hot Issues Involving Technology Arbitration”. The panel comprised: Gowri Kangeson (Partner in DLA Piper’s Litigation and Regulatory, and Arbitration Groups); Tim Lyons (Partner in DLA Piper’s Intellectual Property and Technology Group); and Jason Choi (Senior Associate in…
Caroline Kenny KC is a barrister, mediator, and arbitrator. She has over 30 years’ experience in commercial disputes. In 2008 she was appointed as King’s Counsel and has since been recognised as a Chartered Arbitrator – the only female Chartered Arbitrator in Australia. Caroline’s arbitration experience therefore spans across various roles within international commercial arbitration…
A little over a decade has passed since the introduction of the Model Law on International Commercial Arbitration in Australia as the framework for uniform domestic arbitration legislation. Before this, the various enactments of domestic legislation in the Australian states and territories had followed English Acts. For example, the New South Wales 1902 Arbitration Act…
Winston Churchill said in 1942 that the war was not at the end, adding: “It is not even the beginning of the end. But it is, perhaps, the end of the beginning”. When it comes to international arbitration, the beginning is easy enough to discern from the notice of arbitration. Divining the end can be…
Expert evidence is a feature of almost every arbitration. At the very least, parties will likely need to adduce expert evidence concerning the quantification of a claim for damages. However, depending on the subject matter of the dispute, a party may need to adduce expert evidence on any number of topics, ranging from aerodynamics to…
As the oil and gas industry continues to mature, the number of mid-to-late life assets grows. A key challenge for the energy sector is how to effectively manage the decommissioning of these assets, especially those situated offshore. In Australia: decommissioning work is expected to be required for up to 65 offshore platforms by 2026, and…
Last year saw positive movements in Australia, New Zealand and the Pacific Islands to better promote the use of arbitration in the region. Arbitral institution rules were modernised and domestic legal frameworks were introduced all to stimulate arbitration activity. The year also saw a sharp focus on the benefits of empirical studies to understand how…
The Kingdom of Tonga is dedicated to furthering the development of arbitration. A little more than a year ago, this blog published a post reporting that Tonga had acceded to the New York Convention on 12 June 2020. The New York Convention came into force for Tonga on 10 September 2020, and exactly three months…
On the final day of ACICA’s Australian Arbitration Week 2021, Level Twenty Seven Chambers presented a seminar on “Functus Officio in Arbitration”. The theme of the seminar was judicial intervention and functus officio, discussed by Shane Doyle QC (Barrister, Level Twenty Seven Chambers), Sarah Spottiswood (Barrister, Level Twenty Seven Chambers), and Chiann Bao (Arbitrator, Arbitration…
On 19 October 2021, Mr Bret Walker AO SC delivered the 2021 CIArb Australian Annual Lecture as part of ACICA’s Australian Arbitration Week 2021. Mr Walker’s lecture, titled ‘Privacy or Secrecy? Open Justice Values as a Challenge to Arbitral Procedure’, offered a thought-provoking examination of what he termed the ‘problematic nature’ of secrecy in commercial…
The International Convention on the Settlement of Investment Disputes (ICSID Convention) contains two provisions regulating compliance with arbitral awards. Article 53(1) provides that an award shall be binding on the parties. Article 54(1) requires each contracting State to recognise an ICSID award as binding. In this regard, it is common for parties to comply with…
There have been significant legal developments in recent times in Australia concerning the proper choice of law applicable to an arbitration agreement. Cases have centred on how to give effect to parties’ choice. But there are other laws which, despite not being chosen by the parties as the law applicable to the arbitration agreement, may…
On 30 May 2021 the fifth webinar of the series “The Rising Arbitrator’s Challenge: Navigating the Premise and Perils of Your First Appointment(s)” covering Australia and New Zealand was presented by ACICA45 in collaboration with the Rising Arbitrators Initiative (RAI). RAI was created in September 2020 to support arbitration practitioners under 45 who have either…
Efficiency in arbitration is an area that is discussed so often it almost feels inefficient to discuss it. Indeed, when the Australian Centre for International Commercial Arbitration (ACICA) (in conjunction with FTI Consulting, and with the support of the Australian Bar Association, Francis Burt Chambers and the WA Arbitration Initiative) launched the results of the…
New arbitration rules for the Australian Centre for International Commercial Arbitration (ACICA) came into force on 1 April 2021. The 2021 ACICA Rules update the 2016 Rules outlined here to bring them in line with other major institutional rules. Changes include express provisions regarding “e-arbitrations” (e.g. Rule 14) and to consolidate proceedings even in “chain…
In February 2021, Facebook made the unprecedented decision to ban Australian news-related content posted by Australian users. Facebook’s move was reportedly in retaliation to the Federal Government’s introduction of the News Media and Digital Platforms Mandatory Bargaining Code (Code). Under the Code, operators of “designated digital platform services” in Australia will be required to negotiate…
The concept of ‘waiver’ is a nebulous creature, crossing into the realms of estoppel, repudiation and variation. For the purposes of ss 7(2) and 7(5) of Australia’s International Arbitration Act 1974 (Cth), Australian jurisprudence has distinguished between ‘strong’ and ‘weak’ waiver, as summarised in ACD Tridon v Tridon Australia [2002] NSWSC 896 (‘ACD Tridon’). ‘Strong’ waiver…
The Renewable Energy Target (RET), Australia’s key policy instrument for encouraging electricity generation from renewable sources, has been described as a policy hampered by politicisation. Notwithstanding such criticism, in 2019, it was reported that Australia’s energy system is undergoing the transition to renewables faster than any other country in the world.1)Blakers et al., (2019) “Pathway…
The doctrine of separability of arbitration agreements recognises that an arbitration clause contained in a broader agreement is separate and valid despite the invalidity of the rest of the agreement. The doctrine also raises a fundamental question: what is the governing law of the separable arbitration agreement as compared to the remainder of the contract…
2020 saw important case law developments concerning the proper law of arbitration agreements, where the seat of the arbitration is in a different jurisdiction from the governing law of the main contract, particularly in the UK. However, various jurisdictions have adopted different approaches to this issue. It remains to be seen which jurisdictions will follow…
