The CIArb Australia News 2019

The CIArb Australia News 2019
The CIArb Australia News 2019   1

The CIArb

The CIArb Australia News 2019
2   The CIArb Australian News December 2014                                                                                                       The CIArb Australian News December 2014                    3


                   About                                                             The CIArb Australia News 2019

                                                                                     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                   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 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
                                   active in sixcontinents
                                                                                     Publisher: Chartered Institute of Arbitrators (Australia) Limited | ACN 118 131 016
                                                                                     Editor: Gordon Tan
                                   + 250                                             Design: Creative Chaos Pty Ltd
                      + 250
                                   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.
The CIArb Australia News 2019
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.

              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 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
                                         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
The CIArb Australia News 2019
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                                                                                                                               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

                                                                                                                                                                                                                   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.
The CIArb Australia News 2019
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                                                                                                                        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
    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
The CIArb Australia News 2019
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                                                                                                                          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.
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                                                                                                                                                        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; [2010] NSWCA 57.             [55]-[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 [107].
                                                                                                                                                             Gordian Runoff Ltd (2011) 244 CLR 239.          Runoff Ltd (2011) 244 CLR 239 at 274 [72]
                                                                                                                                                        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
                                                                                                                                                             [19]-[20]                                                                                            (2013) 251 CLR 533 at 573 [101].
    * 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 [31]-[32].           12.   12 [2019] HCA 13.
                                                      Review 1.                                             23 at 24.                                        Runoff Ltd (2011) 244 CLR 239 at 271
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                                                                                                                                                              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             [2019] HCA 13 at [48].                             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 [166]-[177], 496   16.   [2007] 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:
          [193].                                                                                                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 [2007] 4 All ER 951 at 958 [13].    19.   Park, "Non-Signatories and the New York             of International Arbitration 173 at 194.             courts" (2017) 33 Arbitration International            International 175 at 175.
          [2019] HCA 13 at [32]-[33] and [46].                                                                  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
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                                                                                                                            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
    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.   [2019] HCA 32.
The CIArb Australia News 2019
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
                                               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”
                                                                                                                          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
               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
               Adam Firth | Sydney                 Ronnie King | Tokyo                José Antonio Rodríguez | Madrid
               Georgia Quick | Sydney                                                 Cameron Cuffe | Dubai
               Bill Smith | Sydney                 Tom Cummins | London               Dyfan Owen | Dubai
               Peter Voss | Sydney                 Emma Johnson | London

               James Clarke | Melbourne            Matthew Saunders | London

               Catherine Pedler | Perth            Dr. Nicolas Nohlen | Frankfurt
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