Australia is upping the ante in an increasingly competitive field, says Doug Jones
International arbitration hub
Like many countries in Asia, Australia has been working hard to promote
itself as an arbitration hub. In line with this, the Australian
Government has undertaken a number of reforms, in conjunction with
Australia's various arbitration institutions, in an attempt to ensure
that Australia will have an edge in what is becoming an increasingly
competitive market to capture the lucrative business of hosting
international arbitrations.
Legal Reforms
The most significant reforms currently taking place in Australia relate
to the domestic arbitration regime. Between the mid-80s and early-90s,
uniform domestic arbitration legislation was introduced in all
Australian states. Unfortunately, its utility as uniform legislation was
diminished by a number of drafting discrepancies in its implementation,
and as a result, it was possible for different courts in different
states to develop individual lines of jurisprudence. Further, as the
legislation was first drafted in the early 1980s, it had become dated
and ill-suited to meeting the needs of contemporary disputants.
In order to rectify this, the various Australian state governments have
agreed to introduce new uniform legislation. The new Commercial
Arbitration Acts are intended to be truly uniform, ensuring that
regardless of which Australian state the domestic arbitration is taking
place in, the applicable law will be the same. The new acts are built
around the United Nations Commission on International Trade Law
(UNCITRAL) Model Law on International Commercial Arbitration 1985
(incorporating the 2006 amendments). Currently, the new acts have been
enacted in New South Wales, Tasmania, Victoria, the Northern Territory
and South Australia. However, Western Australia, Queensland and the
Australian Capital Territory are yet to have passed the new laws through
their respective parliaments.
By using the UNCITRAL Model Law as a basis, the Australian domestic
arbitration paradigm is brought into line with international standards.
This will have a number of ramifications for Australia's dispute
resolution landscape. Ideally, the updated legislation will ensure that
arbitration plays an even more important role in resolving commercial
disputes. This will, in turn, ensure that Australian clients,
practitioners and industries are familiar and comfortable with
arbitration as a viable alternative to litigation. This will serve to
develop Australia's legal industry even further so that expertise in,
and experience with, arbitration become hallmarks of the Australian
legal system.
What does Australia have to offer?
One of the major selling points for Australia in its bid to become a
venue of choice for arbitrations in the region is the attractiveness of
its major cities, particularly Sydney, in hosting arbitrations.
Capitalising on the reputation of its legal system, parties to
arbitrations in Australia have lauded the presence of a supportive and
proactive judiciary. Australia also boasts a well-established and
reliable legal profession, with specialist legal advice readily
available. Further, and importantly in the highly competitive market for
arbitrations, Sydney is significantly cheaper in comparison to other
popular arbitration locations such as London, Paris, New York, or Hong
Kong.
There is also strong institutional support for parties arbitrating in
Australia. The Australian Centre for International Commercial
Arbitration (ACICA) is Australia's preeminent international arbitration
institution. ACICA was established in 1985 and its members include
leading practitioners and academic experts in both international and
domestic arbitration. ACICA works closely with the Australian
International Disputes Centre (AIDC), which is known for its world-class
logistical support of arbitration. This logistical support is essential
to the swift resolution of disputes, and the AIDC has proved capable of
catering for both small and large disputes, from providing the
necessary technologically-equipped meeting rooms to case management and
trust account administration.
Recent changes to the ACICA Rules
In 2011, ACICA introduced new arbitration rules with the goal of
expediting the resolution of international commercial disputes. The
rules were updated in response to the Australian Government's decision
to appoint ACICA as the sole default appointing authority under the
International Arbitration Act 1974 (Cth). Having this authority allows
ACICA to appoint arbitrators where the parties to an arbitration
agreement are either unable to agree on the process for appointment, or
where the appointment process to which they agree fails. The process of
updating the rules involved extensive consultation with respected
practitioners, policymakers, academics and business leaders.
The updated rules include Emergency Arbitrator provisions, which are a first for an Australian arbitral body, and will increase flexibility available to parties seeking to arbitrate. These provisions allow parties to obtain emergency interim measures by before an arbitral tribunal is formally constituted.
The introduction of these new rules was welcomed by industry leaders,
including Damian Lovell, the Vice President of Litigation at BHP
Billiton. Mr. Lovell noted that there was increasing demand for
first-rate, cost-effective arbitration services, particularly in the
Asia Pacific region, and that Australia was well placed to meet this
demand.
Successes of ACICA
Another milestone for ACICA occurred in January 2012, when the New
South Wales Bar Association announced it would follow the Victorian Bar
by partnering with ACICA. The partnership allows Australia's largest
state barrister body to participate more readily in international
arbitration by giving members of the NSW Bar easier access to solicitors
and clients involved in arbitration.
In February of this year, ACICA launched its International Program for
2012 in New Delhi and Mumbai. The ACICA delegation focused on the fact
that Australia could provide a modern international arbitration law, a
supportive judiciary, first class professional services facilities and
purpose-built hearing locations.
The launch attained international acclaim, attracting the endorsement of various delegates including the Adani Group, the Indian conglomerate with the most major investments in Australia. The Adani delegation praised Australia's robust legal framework, noting that this was a key factor that gave Australia an advantage over Singapore and Hong Kong as an international dispute resolution destination.
Where to from here?
It is an exciting time to be involved in international arbitration in
Australia. The current domestic reform process is well underway and has
already had a positive impact on the perception and efficacy of domestic
commercial arbitration in Australia.
Professor Doug Jones AO is a Partner at Australian law firm Clayton Utz and is a member at London’s Atkin Chambers.
Source: globallegalpost
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