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2 The CIArb Australian News December 2014 The CIArb Australian News December 2014 3 Contents About The CIArb Australia News 2019 us ISSN 2204-0684 Volume 6 Number 1 article PAGe President’s Report Caroline Kenny QC .................................................................... 1 The Chartered Institute of Arbitrators (CIArb) 2019 International Arbitration Conference ................................................................ 3 is the professional home of dispute resolvers. Taking The Contract Seriously - Changing Perspectives On The Prospects As an international not-for-profit organisation, For International Arbitration: 2010 To 2019 ............................................................... 9 our mission is to promote the use of alternative CIArb Australia Annual Lecture............................................................................... 33 dispute resolution (ADR) as the The Continuing Evolution of International Commercial Arbitration Paula Hodges.... 35 preferred means of resolving disputes Out of the frying pan, into the... hot tub? ................................................................ 48 throughout the world. Investor State Arbitration: A Force For Good? ........................................................41 2019 CIArb Australia Essay Competition Winner .................................................... 43 We pride ourselves on being a truly global network, with over 2019 Alfred Deakin ICA Moot................................................................................. 45 16,000 members working in sectors as diverse as finance, International Arbitration and the Art of Strategy...................................................... 46 construction, oil and gas and agriculture in over 130 countries Party Appointed Experts in International Arbitration: Asset or Liability.................... 49 worldwide. In addition to providing education, training and accreditation for arbitrators, mediators and adjudicators, CIArb Accelerated Route to Membership Course - A Candidate’s Perspective .................51 acts as an international centre for practitioners, policymakers, Improving Arbitration Procedure: Tips and Traps for an Efficient Process............... 54 academics and businessmen. Multiple Dimensions of Complex Arbitration........................................................... 58 We provide dedicated professional guidance to our members Accelerated Route Towards Fellowship Course 2019 .............................................61 through world-renowned training, conferences, events, research and publications. We can ensure that all of our members have 2019 CIArb Australia Business Lunch .................................................................... 63 access to CIArb training and benefits, wherever they are in the The Future Significance of International Arbitration Leah Ratcliffe........................... 65 world. Most importantly, CIArb’s international reputation and academic rigour provide our members with a powerful mark 2019 Introduction to International Arbitration.......................................................... 68 of quality assurance to help open doors. CIArb Asia Pacific Diploma in International Commercial Arbitration......................... 71 The CIArb Australia is one of 40 branches offering institute 2019 Award Writing ................................................................................................75 members a prestigious, globally-recognised qualification and access to a global professional community and regular Arbitration Clauses: The Good, the Bad and the Ugly .............................................77 networking opportunities. Visit www.ciarb.net.au 2019 CIArb Australia Vis Pre-Moot .........................................................................79 11th CIArb Australia/ NSW Young Lawyers International Arbitration Moot 2019 ..... 80 Asia ADR Week 2019 ............................................................................................ 83 OVER + 16,000 Member Profile: Nick Longley ................................................................................ 84 16,000 CIArb has over 16,000 CIArb Australia Membership Update ..................................................................... 85 MEMBERS members worldwide Sponsors & Supporting Organisations .................................................................. 89 + 130 Our members are based in over 130 countries across the world + 40 6 There are over 40 CIArb branches CONTINENTS active in sixcontinents Publisher: Chartered Institute of Arbitrators (Australia) Limited | ACN 118 131 016 Editor: Gordon Tan + 250 Design: Creative Chaos Pty Ltd + 250 COMMERCIAL Our members work in over All articles © 2019 The Chartered Institute of Arbitrators (Australia) Limited. Permission SECTORS 250 different commercial sectors to reproduce any item should be obtained by writing to the Editor.
1 The CIArb Australia News 2019 The CIArb Australia News 2019 2 CAROLINE KENNY QC CIArb Australia President BARRISTER, VICTORIAN BAR View Profile President's Report Prof Doug Jones AO (International Arbitrator and International Judge of the Singapore International Commercial Court), Caroline Kenny QC (President of CIArb Australia), Dr. Shane Monks (CIArb Australia National Councillor) Welcome to the 2019 edition of our flagship publication, The CIArb Australia News. S ince my last report, (NSW), Leon Chung (NSW), CPD Events Once again the CIArb Australia transparency offered by the training President of CIArb Australia and and as evidenced by Shane Monks (QLD), Francis Young Members Seminar was and qualification pathways. Gowri Kangeson, Partner of DLA Amplifying the significant and the following pages, we Williams (QLD), Nicholas organised by Kristian Maley and expanding importance of Piper which firm sponsored the have increased the level Floreani (SA), Tom French (WA) also filled to capacity. Pre Vis Moot and Moots international arbitration, we pre-moot. of activity and engaged further Kristian Maley (WA) and myself. continue to invest in providing high Education and Accreditation In October we celebrated the 11th with other stakeholders from Following the AGM, the full Once again CIArb Australia was end professional development Anniversary of our joint venture across Australia and around the Council elected the Executive: Education and accreditation events. In addition to delivering with the NSW YL International invited to join the panel for the region. Caroline Kenny QC (President), continues to be the core activity of seminars of general interest and Committee to organise an annual Alfred Deakin moot on 4 to 5 James Healy (Vice President), our branch. We offer a variety of I thank the Council for their the Federal Court international international commercial arbitration September and was represented Leon Chung (Vice President), courses for relative newcomers to support during these 12 months. arbitration program, we hosted moot. Held at Herbert Smith John Arthur (Treasurer) and ADR, right through to those with by Dr Vicky Priskich. In this time we have continued the Melbourne business lunch Freehills Sydney offices, the Grand Dr Vicky Priskich (Company advanced levels of knowledge and to work hard to expand the featuring: former General Counsel Final panel comprised The Hon Secretary). During the year Dr skills. We held the Award Writing Season’s Greetings Institute’s profile, offerings and at BHP, Leah Radcliffe.as the Julie Ward, Chief Judge in Equity Vicky Priskich was appointed course in Melbourne and Sydney; consolidate CIArb Australia as guest speaker. In partnership of the NSW Supreme Court, Leon Finally, on behalf of all of us here Chair of the Education. The the Accelerated Route towards a leader in the international with ACICA the branch held Chung, Partner at Herbert Smith following were appointed State Fellowship in Melbourne and at CIArb Australia, I would like to arbitration space. I also wish the International Arbitration Freehills, and Gitanjali Bajaj, Partner Convenors for CIArb Australia the Introduction to International take this opportunity to thank you to acknowledge the support Conference at the Westin Brisbane at DLA Piper. Chapters: Dr Vicky Priskich Arbitration course in Perth. This of our various sponsors and during Australian Arbitration for your support and extend our (VIC), Tom French (WA), Jo year the branch ran the Accelerated The CIArb Australia Young the Federal Court of Australia Week. With participation from best wishes for the festive season Delaney (NSW), Nicholas Route to Membership course, Members Group, chaired by regarding our successful the Hon Patrick Keane AC, the and the year ahead. Floreani (SA) and Dr Shane which is a pathway course to CIArb Australia Councillor Kristian partnership in the CIArb/Federal Hon Catherine Holmes AC, Chief Monks (QLD). Retiring and Fellowship. Maley, once again organised a Court International Arbitration Justice of Queensland, the Hon outgoing Councillors throughout Justice Sofronoff, President of the This year the Institute launched a pre-moot event for the Australian Series which is now in its 4th 2019 were Col Roberts (WA), Court of Appeal and the Solicitor- new training structure as part of teams competing in Vienna and year. Stephen Lee (QLD) and General of Queensland, Sandy its Golden Thread. The purpose Hong Kong. The event attracted Brenda Horrigan (NSW). On Thompson QC, the conference of the Golden Thread project is participation of 10 universities from 2019 Council Elections At the last AGM held on 30 behalf of the Institute, I thank the retiring directors for their attracted a record number of delegates and filled to capacity to confirm and underpin global recognition of CIArb’s rigour in across Australia and culminated in a grand final held at the Federal Caroline Kenny April 2019, it was announced service and particularly, wish to with a wait list. The branch also upholding the standards of quality Court before a panel comprising the following were elected to acknowledge the outstanding hosted the CIArb Annual Lecture and expertise of its membership, the Hon Justice Clyde Croft AM, Caroline Kenny QC the 2019/2020 Council: John contribution of longstanding with Paula Hodges QC, head of and to strengthen the foundations Justice of the Supreme Court President Arthur (VIC), Damian Sturzaker directors, Col and Stephen. the LCIA, as the guest speaker. of consistency, fairness and of Victoria; Caroline Kenny QC, CIArb Australia
3 The CIArb Australia News 2019 The CIArb Australia News 2019 4 the renewables sector and said that enforced through litigation. will be no issue about which law arbitration needs to stay “fresh and However, as a national court can applies to determine the issue. relevant”. Russell Thirgood spoke, only adjudicate on disputes within Paul Sandosham cautioned in part, about climate change and its jurisdiction and IP disputes are against choosing one institution the likelihood that climate change almost always a multi-jurisdictional to administer another institution’s (specifically, the right to a safe and issue, this was unsatisfactory as it arbitration rules, and spoke about clean environment) will generate a meant a claimant had to litigate in the Alstom Technology experience. new wave of human rights issues. multiple jurisdictions. The next session concerned Kanaga Dharmananda QC We learned that Hong Kong has construction & infrastructure raised three interesting points in enacted legislation dealing with Lee Carroll disputes, chaired by Sandy the context of expert evidence. the arbitrability of IP disputes. Special Counsel, Thompson QC. Stephen Hibbert First, ought there be standards Dr Rouven Bodenheimer also treated the audience to a wonderful Corrs Chambers Westgarth around the disclosure by experts considered that there was room overview of the Qatar rail – Doha View Profile of previous arbitral involvements? for the infringement of IP rights to Metro, complete with a short video. Secondly, how do we ensure be the subject of a dispute under Mr Hibbert also shared with us a experts get the documents they an investment treaty. Winnie Tam rather novel feature of an arbitration 2019 International Arbitration Conference need before they provide their opinion? Thirdly, where (for SC explained that arbitration in this area is not without its limitations. agreement in that Project which provided that any arbitration would reasons of cultural upbringing) Of course the relevant parties be delayed until the end of the Building Bridges: Resolving Disputes through International Arbitration parties take a different approach must have previously entered into Project, even if the contract was to the treatment of experts and the an arbitration agreement. And O terminated. Frances Williams n 18 November 2019, said that arbitration is fully are being made in South Korea to preparation of witness testimony, any award would not have a legal advised lawyers to be flexible in the arbitration practitioners accepted by users in the Middle expand the amount of international how do we ensure there is no impact on the rights of non-parties. use of memorials versus pleadings, from around the world East; the hotspot of arbitration arbitration in that country, including consequential imbalance in the So to the extent that a party and considered stop-clock convened at the being the UAE and specifically, by creating an English language list hearing? Should the issue be wants “vindication pronounced arbitrations to be a worthy process Westin Brisbane to attend the Dubai. Ms Hoffman then spoke to for international arbitration matters. addressed by way of a procedural to the world”, that party may not to cut through the inefficiencies of 2019 International Arbitration some of the features of the new direction soon after the tribunal’s be satisfied with a confidential The second session featured a arbitration. Gitanjali Bajaj agreed: Conference, organised by UAE law. Meg Utterback spoke to constitution? outcome. conversation with Paula Hodges stop-clock arbitration makes you ACICA and CIArb Australia. developments in China including The difficulty of finding technical The next panel hosted a very focus and put the real issues in QC, led by Caroline Kenny The conference, which saw the 2019 Framework Plan which experts, who are not over utilised, interesting session speaking dispute to the real witnesses. QC. Ms Hodges spoke about a practitioners from 5 continents permits foreign arbitral institutions was also raised. A comment to many different issues in the distinguishing feature of the LCIA The final session of the day and 15 jurisdictions impart their to register in mainland China. from the floor informed us that the context of the arbitration of M&A Arbitration Rules (Articles 18.5 concerned the appointment of knowledge and experience, was a Expert Witness Institute in London deals, such as the production of Sheila Ahuja said that a lack of and 18.6) which ensures that arbitrators from an institutional wonderful success. now has a Singapore arm, which documents, the appropriateness reliability and consistency in the counsel complies with certain and a corporate perspective. The The conference was opened by courts in Indonesia, India, Malaysia ethical standards contained in many may find useful. of expert determination where session was chaired by Professor the Honourable Chief Justice and Japan makes arbitration in the Annex to the LCIA Rules, and the remedy sought is a valuation Session Four focused on China’s Doug Jones AO. Matthew Holmes. Her Honour was followed those jurisdictions a strong choice. which gives tribunals the power or price calculation exercise, and One Belt, One Road initiative. This Gearing QC demonstrated that by the Honourable Justice However, she identified hurdles in to investigate alleged violations of how tribunals who are unfamiliar session was chaired by Chan Leng the statistics show that institutions Keane AC who gave the keynote these countries. The Indonesian the standards and impose certain with concepts such as ‘without Sun SC. Dr Fuyong Chen spoke are driving diversity more than address. His Honour advocated for arbitration law does not adopt the sanctions in relation to any such prejudice’ and ‘calderbank offers’ to us about China’s International the parties, and that the LCIA, in “quality control” of the arbitration Model Law. Recent amendments violation. Ms Hodges explained that deal with such concepts. The Commercial Court, which has particular, is leading the charge. process to ensure its success. to India’s arbitration law are thought it was important, as an institution, session was chaired by Justin two branches: one in Shenzhen The corporate perspective was His Honour said that the quality of to be confused and India has only to “regulate ourselves” and not be McDonnell. to deal with disputes arising out given by Scheherazade Walter. decision-making is (naturally) just chosen to enforce arbitral awards reliant on arbitrators to import the of the BRI maritime road; and one Andrew McDougall offered Ms Walter explained perfectly the as important to parties who have from arbitrations with 59 (of the IBA’s ethical guidelines. in Xi’an to deal with disputes in his “top 3” tips for drafting an apparent reluctance on the part of chosen arbitration as it is to those ~160) countries who are party to relation to the overland Belt. Dr arbitration agreement. First, pre- parties: the client is interested in In Session Three, we heard about who have chosen litigation, and the New York Convention. Japan Chen also introduced us to the arbitral steps should be crystal this arbitration. It is not interested arbitration in the energy and that competence and diligence has some way to gain international BAC Arbitration Rules 2019. Olga clear. Secondly, time limits should in furthering the cause of diversity resources industry. The session should be the goal of every reputation. And the Malaysian Boltenko spoke about China’s be reasonable and achievable. for the good of arbitration more was chaired by Jeremy Quan- arbitrator. To take an approach, as courts do not offer reliable or treaty policy and the proliferation of Thirdly, the arbitration agreement generally. Sing who revealed that a WA arbitrator, which “gives a bit each efficient judicial support for dispute resolution centres. should include a proper law of Arbitration Initiative which looked at Caroline Kenny QC and Brenda way” is, his Honour said, inimical to arbitration in that country. the arbitration agreement. This the nature of arbitration activity with After lunch, we were treated to Horrigan gave the closing the arbitration process. is particularly important if there We also learned from the a WA connection in the 2017/2018 dispute-specific panels. First, address, and then the delegates The first session of the day went is an issue as to whether a non- Honourable Justice Sofronoff, financial year, concluded that 75% Professor Jenni Lightowlers headed pool-side for a cocktail around the globe, focusing on signatory, parent company, is who chaired the session, that of all reported arbitrations related chaired a panel on the arbitration networking reception. It was a bound by the arbitration agreement. current trends in international Myanmar is considering invoking an to either the construction or oil & of IP disputes. Traditionally, IP thoroughly enjoyable and rewarding If there is an express proper law arbitration in the Middle East and arbitration process and Professor gas and mining industries. Georgia disputes have not been arbitrable conference shared with many from of the arbitration agreement, there parts of Asia. Anne Hoffmann Doug Jones explained that efforts Quick spoke about arbitration in and IP rights have only been around the globe.
5 The CIArb Australia News 2019 The CIArb Australia News 2019 6 Kong International Arbitration contribution that Australia and member of the Women's Legal Centre, Chan Leng Sun SC, the Australian practitioners make to Service, a member of the Anti- deputy Chairman of the Singapore the success and advancement of Discrimination Tribunal and deputy International Arbitration Centre international arbitration. president of the Queensland and Dr Fuyong Chen, the Deputy Community Corrections Board. Chair of the Beijing International It is now my pleasure to introduce Chief Justice Holmes was Counsel Arbitration Centre. the Chief Justice of Queensland, assisting the Forde Commission the Honourable Catherine Holmes, For this first Australian Arbitration of Inquiry into Child Abuse and to welcome you to Queensland. Week in Brisbane arbitration was the Commissioner of the The Honourable Chief Justice practitioners from across Australia Commission of Inquiry into the Holmes is a graduate of The and around the world have rallied 2010–11 Queensland Floods. University of Queensland and behind Brisbane to ensure that Australian National University. Chief Justice Holmes was the week is a success. I hope Chief Justice Holmes was appointed Chief Justice of the you enjoy all eight sessions of admitted as a solicitor of the Supreme Court of Queensland in the program, that you meet new Supreme Court of Queensland 2015, having served as a judge of friends and colleagues today and practised as a barrister at the the Queensland Court of Appeal and over the course of the week Brisbane Bar. from 2006. and that you take away with you a positive view of the important Her Honour served as a founding CIArb Australia President’s Welcome Caroline Kenny QC Justice Keane, Chief Justice disputes through international conference. We are grateful for Holmes, Justice Sofronoff, arbitration.” The title for the the support of Justice Keane, Solicitor-General of Queensland, conference is appropriate because who himself comes from Brisbane Sandy Thompson QC, ladies and for international arbitration to and Queensland’s judiciary gentleman, a warm welcome to remain the preferred method for and government. We also this conference in Brisbane. I resolving cross border disputes acknowledge the support of global would particularly like to welcome we must build bridges, not walls. institutes, industry associations, our international and interstate We must ensure that arbitration Deakin University, our sponsors delegates and speakers who have remains relevant and responsive and media partners in organising travelled from around Australia to those who use it. Arbitration this conference. Today you will and all corners of the globe to be weeks, wherever they are held, hear from expert practitioners from with us today. This conference, are all about placing arbitration five continents and 15 jurisdictions which is Australia's premier under the microscope to examine who will impart their knowledge international arbitration event, will its strengths, its weaknesses and experience in examining launch Australian Arbitration Week and how it can be improved. emerging trends in various key here in Brisbane for the very first sectors of international arbitration. This week in Brisbane will be no time. You will have observed We are particularly delighted to be different. that the conference brochure joined today by Paula Hodges QC, features Brisbane’s Captain Cook It has been a pleasure to work the President of the London Court bridge, and the conference is with my co-conference chair of International Arbitration, by Matt called “building bridges - resolving Brenda Horrigan to organise this Gearing QC, the Chair of the Hong
7 The CIArb Australia News 2019 The CIArb Australia News 2019 8 I’m indebted to Doug Jones’ work Australia’s first Chief Justice. by Australian courts to arbitration. for information here. Arbitrations I’m thinking there of the arbitration Following that, in 1894 the were occasionally used in the early lists that have been created in Queensland Chamber of part of the 19th century to settle the Supreme Courts of NSW and Commerce created a Voluntary debt disputes in New South Wales, Victoria and in the Federal Court. Arbitral Tribunal. There were the first colony. But it was in the already similar voluntary tribunals That’s important, because it mid-part of the century in what in Melbourne, Sydney and seems that it is a country’s legal is now Victoria that the practice Adelaide, and one was later culture that most influences choice became relied on heavily by private created in Perth. of it as a seat of arbitration. The landowners. Well… landowners is 2018 Queen Mary University perhaps a generous term. Most This early culture of arbitration in of London Arbitration Survey of them were squatters on Crown Australia continued into the 20th reported that the ‘formal legal lands. Courts, particularly those century. However, it wasn’t until structure’ of the seat – its with civil jurisdiction, were not the 1980s that a uniform system neutrality, arbitration law and established for quite some time. of arbitration acts was created track-record for enforcing awards So, arbitration came to the fore. in each of the states. Arbitration – was the most important factor The first reported award, in 1836, in Australia was also largely in a party’s choice of that seat. was a dispute about someone domestically focused. Factors like cost, language, and injuring his neighbour’s cattle, and Even after the passage of the familiarity with local culture were hunting their rabbits. The early International Arbitration Act in far less important. bread and butter of commercial 1974 and of the uniform state acts arbitration. So things look fairly promising in the 1980s – a relatively pro- for Australia as a centre for The practice of arbitration arbitration framework – arbitration arbitration in the future. But there became so accepted by the failed to truly take off in Australia. are challenges on the horizon, community that in June 1836, It’s fair to say that support for it too. Twenty four years ago when at the first meeting of the Port from the Australian judiciary was the Australian branch of the Phillip Association, ‘Victoria’s not overwhelming. Chief Justice Chartered Institute of Arbitrators unofficial parliament’, resolutions Spigelman of New South Wales was created, public opinion was were passed creating what could observed in 2009 that “commercial far more supportive than it is today be described as our first arbitral arbitration… has always offered, Welcome Address of international trade and the institution. An arbitrator was but rarely delivered, a more cost institutions that support it. Today appointed, and all awards were effective mode of resolution of there is a rising scepticism towards made final. dispute.” many international institutions. The Hon Catherine Holmes Arbitration also played a significant Another Chief Justice, James Admittedly, commercial arbitration Chief Justice role here, in the early history of Allsop of the Federal Court, has rarely sits directly in the firing line. Queensland. In the news pages suggested that this falling short Criticism is usually directed at from the earliest days of the colony was partly attributable to the the legitimacy of investor-state It is my pleasure to welcome you arbitrations conducted annually at individual, a chief, a respected in the 1840s and 1850s there are courts’ willingness to intervene in arbitration instead. Within the all to this year’s conference, and the 11 largest arbitral institutions trader or lawyer, to resolve a reports of arbitration to resolve the arbitral process. On questions arbitration community, there are to welcome you to the first such increased by 50%, from just over dispute in a binding way. small civil claims, as well as of arbitrability, separability, and concerns too about the increase conference to be held in Brisbane. 4000 to over 6000. salvage disputes. Arbitration was construction of the arbitration in costs and delays in the arbitral As in Greece, arbitration in agreement, Australian courts process. It is a difficult time for the State. even stipulated as the means for But arbitration has been an Australia is an ancient practice. generally took a narrow view. That There are disastrous bushfires resolving disputed claims to vacant Today’s conference, with its theme important component of trade for Before colonisation, some is to say, one that left the arbitral being fought. Brisbane is smoky Crown lands. “building bridges” presents a thousands of years. We find it in Indigenous Australian legal process more open to interruption, and hot. But I hope at least that systems employed methods As the colony grew, the role of welcome opportunity to reflect Ancient Greece, as early as 800 and the award more vulnerable to you are finding the welcome as of dispute resolution akin to arbitration did too. A major event on some of these challenges. I B.C., mentioned in the writings of challenge. warm as the weather. arbitration. was the Robb Arbitration Case in would like to extend my thanks Homer. Gary Born describes an the early 1890s, involving a dispute In the last 10 or so years, judicial to the Australian Centre of Arbitration tends to be regarded even earlier instance in ancient And it was certainly central to between the Government and a support for arbitration has, Commercial Arbitration and the as a modern phenomenon. It has Assyria, of a woman named the administration of justice in contractor about a large railway however, increased. That is both in Chartered Institute of Arbitrators certainly proliferated, overseas Tulpunnya, who after a successful Australia’s early colonies. It is terms of the prevailing approach to for organising this conference project. The stellar list of counsel and here, in the past 60 years, arbitration was awarded 10 silver often said that modern Australia’s included the Queensland Attorney- questions of law, but also in terms and providing an opportunity for since the adoption of the New shekels and an ox. Today’s suitability as an arbitration centre General, Samuel Griffith, later of the structural support offered education, discussion and training. York Convention. Even in the past processes are no doubt a little lies partly in our inherited common decade the number of disputes different. But what they have in law tradition. But some of the being settled by arbitration has common – what allows us to trace first incarnations of arbitration in increased dramatically. Between back the history of arbitration colonial Australia arose because of 2012 and 2018, the number of so long – is the choice of an the absence of the common law.
9 The CIArb Australia News 2019 The CIArb Australia News 2019 10 in the consent of the parties The Court went on to hold that the of law arising in the arbitration whose interests are in a just, quick reasons provided by the arbitrators does not demonstrate that there and cheap decision, and because in that case were so inadequate as has been some delegation of arbitration is a private process to constitute an error of law on the judicial power to arbitrators. The in which the arbitrator's decision face of the record6; and the order determination of a dispute by an affects only the parties to the of the primary judge setting aside arbitrator does not involve the dispute, the special considerations the award was reinstated7. exercise of the sovereign power of that inform the standards applied the State to determine or decide But you can't keep a good idea in judicial decision-making are not controversies." down; and within two years of in play in arbitrations. Accordingly, Gordian Runoff, the liberalising The plurality also rejected the there is no occasion for the tendency reasserted itself in institutional integrity argument, strict judicial supervision that characterises the exercise of the TCL Air Conditioner (Zhongshan) saying that11: judicial power of the state. Co Ltd v Judges of the Federal "The defining characteristic of a Court of Australia8. In that case, I suggested that judicial court upon which TCL fastened it was argued that the jurisdiction acceptance of the significance of was judicial independence, which conferred on the Federal Court the new approach was was said to be 'distorted' by the to enforce an award to which absence of scope for substantive now settled by the then recent Article 35 of the UNCITRAL Model review of an award for error of decision of the Court of Appeal of Law applied is incompatible law when the Federal Court the Supreme Court of New South with ChIII of the Commonwealth determines the enforceability Wales in Gordian Runoff Limited v Constitution. It was argued that of an award under the IA Act. Westport Insurance Corporation3. because, under Article 35, the The submission fails to take Federal Court was unable to refuse Those who were present in the into account the consensual L-R: The Hon Chief Justice Catherine Holmes, Chief Justice of the Supreme Court of Queensland, Brenda Horrigan, President of ACICA, to enforce an arbitral award on the audience back then in 2010 must foundation of private arbitration. The Hon Justice Patrick Keane, Justice of the High Court of Australia & Caroline Kenny QC, President of CIArb Australia ground of error of law, the power have thought, shortly thereafter, This failure underpinned TCL's to enforce such an award either when the High Court dealt with misunderstanding of the impermissibly conferred the judicial an appeal from the New South relationship between private power of the Commonwealth on Wales Court of Appeal in Gordian arbitration and courts." the arbitral tribunal, or undermined Taking The Contract Seriously – Changing Runoff, that listening to me bloviate on this subject had been a the institutional integrity of the Federal Court, as the supervisor of The liberalising and pragmatic approach of the judiciary was Perspectives On The Prospects For International complete waste of their time4. That is because, in Gordian Runoff, that tribunal. The High Court unanimously confirmed most recently in the High Court's decision in Rinehart the High Court overruled the New Arbitration: 2010 To 2019* v Hancock12. In that case, the South Wales Court of Appeal. rejected these arguments, principal issue on appeal was Reasserting the strong view of the drawing a distinction between whether the claims raised by the supervisory role of the courts with the making of an arbitral award, appellants – that they were not respect to arbitrations, the plurality and proceedings in court for its bound by an arbitration clause The Hon. Justice Patrick Keane in the High Court observed that5: enforcement. The making of an in each of the deeds in question High Court of Australia award is not an exercise of judicial "[I]t is going too far to conclude because their consent had been power, because "the existence that performance of the arbitral procured by misconduct on the and scope of the authority to make In October 2010, I addressed "necessarily determines the utility making required of judges, our function is purely a private matter part of some of the respondents the arbitral award is founded on the Australian Financial Review's of the arbitration process"2 in this courts were now taking a more of contract, in which the parties so that the deeds were of no the agreement of the parties"9. The International Dispute Resolution country and judicial review with an liberal and pragmatic approach have given up their rights to effect – were within the scope of plurality said10: Conference in Sydney1. I eye finely attuned to the detection recognising that the decision- engage judicial power, and is the arbitration clause contained discussed the extent of the of error is not helpful. making power of an arbitrator wholly divorced from the exercise "[T]he conclusion that an arbitrator in the deeds. The principal deed scrutiny exercised by Australian derives from the voluntary of public authority." is the final judge of questions provided relevantly that in the I suggested that, while judicial courts over the conduct of agreement of the parties to the supervision of arbitration in arbitrations and the enforcement dispute rather than the sovereign Australia in relation to adequacy of awards, the overarching power of the state. of reasons and matters of process 3. (2010) 267 ALR 74;  NSWCA 57. - 10. TCL Air Conditioner (Zhongshan) Co Ltd concern being that the intensity of had historically tended to impose Because the decision-making v Judges of the Federal Court of Australia 4. See Westport Insurance Corporation v 7. Westport Insurance Corporation v Gordian judicial review of arbitration awards the strict standards of decision authority of the arbitrator is rooted (2013) 251 CLR 533 at 575 . Gordian Runoff Ltd (2011) 244 CLR 239. Runoff Ltd (2011) 244 CLR 239 at 274  5. Westport Insurance Corporation v Gordian 8. (2013) 251 CLR 533. 11. TCL Air Conditioner (Zhongshan) Co Ltd Runoff Ltd (2011) 244 CLR 239 at 261-262 v Judges of the Federal Court of Australia 9. TCL Air Conditioner (Zhongshan) Co Ltd - (2013) 251 CLR 533 at 573 . * Keynote Address to ACICA Conference, 1. See Keane, "Judicial Support for Arbitration 2. Antoine, "Judicial Review of Arbitral v Judges of the Federal Court of Australia Brisbane, 18 November 2019. in Australia" (2010) 34 Australian Bar Awards" (1999) Dispute Resolution Journal 6. Westport Insurance Corporation v Gordian (2013) 251 CLR 533 at 555 -. 12. 12  HCA 13. Review 1. 23 at 24. Runoff Ltd (2011) 244 CLR 239 at 271
11 The CIArb Australia News 2019 The CIArb Australia News 2019 12 tension between maintaining arbitral award might seriously be characterise the court system. arbitration's consensual character undermined. In this respect, it is There is also the benefit of and maximising an award's not surprising that the "law places easier enforceability of awards practical effectiveness by limitations on the autonomy of the under the New York Convention. binding related persons19, as was will of the parties"23 consistently And perhaps more importantly, noted in Rinehart, in Australia with the view that the simple "ideal there is the abiding importance as elsewhere20, there has been of arbitration is freedom reconciled of privacy25. Large commercial a statutory expansion of the with law"24. parties are, no doubt, strongly meaning of "party" to include attracted by the privacy of Twenty years ago, it was a "any person claiming through or arbitration, both with respect matter of grave concern to those under a party to the arbitration to the issues involved in the responsible for the administration agreement". proceedings themselves and with of the justice system in this country By reason of the statutory that parties to commercial litigation respect to the reasons provided extension of "party" in the were making excessive demands for in the award. In arbitration there International Arbitration Act on the time and resources of the are no representatives of ASIC, 1974 (Cth) and in our domestic court system to the disadvantage the ACCC or the Commissioners Commercial Arbitration Acts, a of other litigants. Now those of Taxation or State Revenue in non-signatory to an arbitration demands on the justice system the back of the hearing room. agreement may be bound by the have been eased as more and Nor are there any shareholders, arbitral award. In addition, joinder more commercial entities vote with and for management whose mechanisms are now contained their feet in favour of arbitration. deficiencies may fall under scrutiny in leading arbitral rules, including in the course of dispute resolution clause 15 of the rules of arbitration That is partly, no doubt, because proceedings, that can be a career- of the ACICA Rules. wealthy litigants opt out of saving advantage. the public system of dispute L-R: Matthew Gearing, Chairperson of the Hong Kong International Arbitration Centre, Caroline Kenny QC, President of CIArb Australia, This strong legislative support Of course, the other side of the Brenda Horrigan, President of ACICA, Paula Hodges QC, President of the London Court of International Arbitration & Fuyong Chen, adjudication in which they are deputy secretary-General of Beijing International Arbitration Center for arbitration means that an obliged to stand in the queue with privacy coin is that there is a arbitrator, in deciding questions other litigants because they can lack of transparency around the of joinder, has the flexibility to afford to do so. To the extent that resolution of disputes that may event "that there is any dispute subject of confidential dispute more than passing interest that in assess the legal, factual and the exercise of this preference affect the public interest. That may under this deed", there is to be resolution15. The claims of invalidity TCL, the Attorneys-General of the technical connections between reduces the demands on the be a matter of legitimate concern; a confidential arbitration of the were therefore held to be within Commonwealth, and the States the pending arbitration and the stretched resources of the public but it is not a concern that has dispute. the scope of the arbitral clause. of Queensland, South Australia, effect of granting the joinder21. The system of justice, that is a good been thought to be sufficiently Victoria, Western Australia and decision-maker may have regard thing. No doubt our lawmakers serious to arouse the concern of The Federal Court had held The High Court did not go so far to various factors, such as whether New South Wales, intervened in find the easing of the fiscal burden legislatures. This Institute and its that the phrase "any dispute as to endorse the view of Lord the dispute arises from the same the High Court to support the very attractive. But, of course, the members and ACICA should be under this deed" should be Hoffmann in the House of Lords in transaction; whether there is a more liberal approach18. The large corporations who choose astute to ensure that there should given a liberal, not a narrow, Fiona Trust & Holding Corporation common question of law or fact; support of Australian governments arbitration as their preferred mode be no reason for that state of interpretation13. In the High Court, v Privalov16 that a claim that the or whether the third party to be for arbitration is clear and strong. of dispute resolution are not acting affairs to change. more cautiously perhaps, the arbitration clause is not binding is joined is an indispensable party for plurality, applying "orthodox The support of Australian law out of a sense of public duty. Some commentators have to be presumed to be covered by the purpose of awarding complete principles of interpretation", held the agreement to arbitrate disputes makers for arbitration at State and or effective resolution22. While the The finality of resolution so expressed the concern that the that in the context of the evident under the agreement. But the Commonwealth levels has been contractual basis of the arbitrator's desired by those engaged in preference of commercial parties importance to the parties of High Court's approach is generally so unequivocal and consistent jurisdiction remains of central international trade and commerce to resolve their disputes by maintaining confidentiality in the likely to lead to outcomes that are over the last three decades importance, the sophistication of is more effectively secured by arbitration may, in the longer term, resolution of any dispute between that privity to the arbitration modern commerce means that arbitration than litigation because impede or stultify the development consistent with Lord Hoffman's them relating to the deed14, it was agreement is not always essential unless some non-parties to the of the absence of the hierarchy of our commercial law. I am approach in Fiona Trust17. "inconceivable" that the appellants' to compel a person to participate contract are joined in arbitration, of appeals, and the attendant sceptical about the strength of this claims as to the invalidity of the So far as the political branches of in arbitration or to be bound by its the practical effectiveness of the uncertainty and delay, which argument. deed should not also be the state power are concerned, it is of result. While there is a theoretical 20. Arbitration Act 1996 (UK) s 82(2). International 29 at 31-32. cited in Beatson, "International arbitration, 13. Hancock Prospecting Pty Ltd v Rinehart  HCA 13 at . the Chartered Institute of Arbitrators were public policy considerations, and conflicts 21. Smith, "Comparative Analysis of Joinder 23. Beatson, "International arbitration, public (2017) 257 FCR 442 at 489 -, 496 16.  4 All ER 951. given leave as "amici curiae" to make of law: the perspectives of reviewing and and Consolidation Provisions Under policy considerations, and conflicts of law: . submissions to the same effect. enforcing courts" (2017) 33 Arbitration 17. Fiona Trust & Holding Corporation v Leading Arbitral Rules" (2018) 35(2) Journal the perspectives of reviewing and enforcing 14. Rinehart v Hancock Prospecting Pty Ltd Privalov  4 All ER 951 at 958 . 19. Park, "Non-Signatories and the New York of International Arbitration 173 at 194. courts" (2017) 33 Arbitration International International 175 at 175.  HCA 13 at - and . Convention" (2008) 2 Dispute Resolution 175 at 175. 25. Esso Australia Resources Ltd v Plowman 18. It may also be noted that ACICA and the 22. Choi, "Joinder in international commercial 15. Rinehart v Hancock Prospecting Pty Ltd International 84 at 86. (1995) 183 CLR 10 at 27. Institute of Arbitrators and Mediators and arbitration" (2019) 35 Arbitration 24. Paulsson, The Idea of Arbitration (2013) at 1
13 The CIArb Australia News 2019 The CIArb Australia News 2019 14 While arbitrators may be chosen fixing its maximum liability for work Conclusion to resolve particular disputes to be done is no less legitimate These questions of quality control because of their special expertise than a builder's interest in being in a particular area, the aspect of are of vital importance to the paid the agreed remuneration. the judicial ethos that they must system of arbitration. There can In taking contracts seriously, we be little doubt that they are most always bring to their task as part of their own professional ethos must recognise that Australian law effectively addressed systemically is what EdmundBurke famously has now turned its face against and as a matter of professional called "the cold neutrality of an the practice of those engaged standards, rather than ad hoc as impartial judge". Respect for the in construction to set the prices a matter of judicial supervision. choices of the parties voluntarily at which they bid for work at an Because the voluntary nature of the expressed in their bargain requires unrealistically low value in the process guarantees to the parties nothing less. Obviously, arbitrators expectation that they will be able to substantial control over it, the self- must resist the temptations to do take advantage of an opportunity regulating mechanism of the market palm tree justice or to exercise the subsequently to terminate the contract and claim a quantum can be relied upon to ensure that wisdom of Solomon. meruit which will provide a more an incompetent arbitrator cannot To insist, as we do, that the hope to survive, and will quickly exit generous level of remuneration. consensual basis of the jurisdiction the system. More positively, it must of an arbitrator be respected by So far as the wisdom of Solomon be the professional concern of the courts is also to insist upon is concerned, we must be astute every member of the Institute and respect for the contract which to ensure that the perception that ACICA to ensure that irreducible embodies that consensus. Upon splitting-the-baby style awards minimum levels of diligence and no one does this obligation of reflect an arbitrator's focus on recognition and respect fall more competence are the goal of every his or her prospects of future squarely than upon arbitrators arbitrator, and that those standards appointment, is not allowed to themselves. Arbitrators must develop. Nothing could be more are attained and adhered to. respect the allocation of benefits, inimical to the long term success Happily, no one doubts the burdens and risks effected by of arbitration as a system of professional standards of the the parties in the charter of rights private dispute resolution in this Courts and legislatures have for because we take seriously the of the arbitrator not to apply the arbitrators associated with the constituted by the contract. country than the loss of confidence several decades been focused notion that the parties have agreed law should not be allowed Institute and ACICA. That, no The recent decision of the that would be engendered by a doubt, is why all of you are here at upon devising remedies directed agreed to be bound by the to stand. A decision of that kind High Court in Mann v Paterson perception that arbitrators are the conference. And so I should let at the power imbalance between determination of their dispute by is plainly not one by which the Constructions Pty Ltd26 is a strong disposed, by prejudice or lack of large corporations and their the arbitrator, we should never parties have consented to be you get on with it. reminder that the contract is the diligence, to adjust or ameliorate consumers. Concerns associated make the mistake of attributing bound. But to limit the quality mechanism by which the parties the allocation of burdens and risks I wish you all the very best in your with consumer protection have to the parties a willingness to control of arbitration to such allocate their commercial risks, and determined by the parties in their endeavours for a most successful been powerful drivers of decisions be bound by a decision other matters cannot be regarded as that the interest of the owner in contract. conference. of our courts over this time; but it than one in accord with the law sufficient to meet the legitimate should hardly be surprising that which has been agreed to be the expectations of the parties. How developments of the law with governing law of the arbitration. does one prove a deliberate an eye to consumer protection No one should suppose that flouting by an arbitrator of his or hold little interest or attraction for quality of decision making is of her decision-making authority? corporations engaged in large less than crucial importance to And is it only a deliberate flouting scale business on an international the parties who have agreed to that we should be concerned stage in relation to the regulation look to the arbitrator for justice. about? Is not a bad decision of their dealings with other equally Even more obviously, persons who a bad decision even if the well-resourced and sophisticated are bound by awards by virtue decision-maker is doing his or her parties. And equally, the of the statutory extension of the inadequate best? Do we think that development of our commercial effect of an arbitrator's decision the parties would be content with law in relation to consumer cannot be expected to view with that? protection loses little by reason equanimity the binding authority of In asking these questions we are of the privacy of the arbitration an unjust decision. And ultimately acknowledging the importance of process because the nature of the it is a matter of concern to the the arbitrator's central obligation to parties and their disputes raise lawmakers of states that seek meet the reasonable expectations such different issues. to provide an attractive seat for of honest people as expressed in arbitration. As to the need to maintain high the bargain that is the foundation standards of arbitral decision We would all agree, I think, that of the arbitrator's authority to making, it is, I suggest, precisely a deliberate decision on the part decide. 26.  HCA 32.
15 The CIArb Australia News 2019 The CIArb Australia News 2019 16 LOCAL ROOTS GLOBAL IMPACT Session One: Around the Globe in 60 Minutes: “The only local arbitration commission which meets or surpasses global standards” - The Economist Intelligence Unit “The runner up for the up-and-coming regional arbitral institution of the year (2014)” - Global Arbitration Review Hot Topics in International Arbitration History and background Established in 1995 as an independent and non-governmental institution, the Beijing Arbitration Commission, also known as the Beijing International Arbitration Center (the “BAC/BIAC”), has become the ﬁrst self-funded arbitration institution in China in 1998 and is widely accepted as one of the primary arbitration institutions internationally. Anne K. Hoffmann (Independent Arbitrator, Dubai), Meg Utterback (Partner, King & Wood Mallesons, New York), John Arthur (Treasurer, CIArb Australia), Sheila Ahuja (Partner, Allen & Overy, Singapore) and The Hon Justice Walter Sofronoff (President of the Queensland With the aim of delivering trusted professional services, the BAC/BIAC endeavors to promote and Court of Appeal, Brisbane) encourage the resolution of disputes through efﬁcacious arbitration and a comprehensive understanding of Chinese arbitration practices. Towards this end, the BAC/BIAC actively organizes the Annual Summit on Commercial Dispute Resolution in China, sponsors the Biennial ICCA Beijing Arbitration Commission Conference, and contributes constructively to the UNCITRAL Working Group II’s deliberations, as Beijing International Arbitration Center an observer. Tel: +86 10 6566 9856 Fax: +86 10 6566 8078 Email: email@example.com Structure and Service Address: 16/F, China Merchants Tower, ﹡ The BAC/BIAC is run by a Committee comprising of a Chairman and 11 members. No.118 Jian Guo Road, ﹡ The BAC/BIAC’s ofﬁce, headed by the Secretary General, has 30+ case managers. Chaoyang District, Beijing 100022, China ﹡ The BAC/BIAC has 500+ arbitrators, including 120+ international arbitrators in its Panel. Nominating arbitrators from outside the BAC/BIAC’s Panel is permissible in international cases. ﹡ The BAC/BIAC has served clients from more than 30 countries, and has facilities to conduct arbitrations not only in Chinese and English but also in other languages. ﹡ There has been an exponential increase in the number of Arbitration cases ﬁled with BAC/BIAC, from 7 in 1995 to over 38,000 by 2018. ﹡ Since 2014, the numbers of cases ﬁled with the BAC/BIAC, on average per year, are 3,000+ in domestic cases, and 60+ in International cases. Hearing Room ﹡ Since 2014, the disputed value, on average per arbitrated case, was 1.9+ million USD, and in 2016, the highest disputed value went up to 1.7+ billion USD! Recommended BAC/BIAC Model Clause: All disputes arising from or in connection with this contract shall be submitted to Beijing Arbitration Commission / Beijing International Arbitration Center for arbitration in accordance with its rules of arbitration in effect at the time of applying for arbitration. The arbitral award is ﬁnal and binding upon both parties.
17 The CIArb Australia News 2019 The CIArb Australia News 2019 18 Session Two: In Conversation with Paula Hodges QC “I would rank Ashurst among the top law firms I’ve come across, partly because they have offices in different locations around the globe, which is an asset, but mostly for their counsel expertise. I’d prefer by far to be represented by Ashurst rather than any other law firm out there” CHAMBERS ASIA-PACIFIC 2018, ARBITRATION (INTERNATIONAL) – ASIA PACIFIC Paula Hodges QC (President of LCIA, Head of Global Arbitration, Herbert Smith Freehills) and Caroline Kenny QC (President of CIArb Australia, Barrister and Independent Arbitrator) International arbitration – resolving disputes THE RIGHT TEAM TO BRING INCISIVE ADVICE A more globalised world has led to increased cross-border collaboration between corporations, investors and states. Sometimes, these collaborations do not go according to plan. Ashurst fields a leading team of international arbitration experts who work closely with our clients to identify the key issues and provide clear advice and practical commercial solutions. Working at the heart of the international arbitration industry across the world, our team combines local knowledge and global expertise with sector leading experience in energy, resources and infrastructure to provide insightful incisive advice for our clients. Your arbitration partners Australia Asia Jeremy Chenoweth | Brisbane Rob Palmer | Singapore Emmanuelle Cabrol | Paris firstname.lastname@example.org email@example.com firstname.lastname@example.org Adam Firth | Sydney Ronnie King | Tokyo José Antonio Rodríguez | Madrid email@example.com firstname.lastname@example.org email@example.com Georgia Quick | Sydney Cameron Cuffe | Dubai firstname.lastname@example.org Europe email@example.com Bill Smith | Sydney Tom Cummins | London Dyfan Owen | Dubai firstname.lastname@example.org email@example.com firstname.lastname@example.org Peter Voss | Sydney Emma Johnson | London email@example.com firstname.lastname@example.org James Clarke | Melbourne Matthew Saunders | London email@example.com firstname.lastname@example.org Catherine Pedler | Perth Dr. Nicolas Nohlen | Frankfurt email@example.com firstname.lastname@example.org
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