Arbitration & ADR, Australia updates

International Arbitration Clause v the Exclusive Jurisdiction Clause
  • Australia
  • September 15 2005

The Federal Court of Australia has held that parties who agree to arbitration or exclusive jurisdiction clauses are bound by their agreements. Only in exceptional circumstances will the court grant a stay that has the effect of overriding an exclusive jurisdiction agreement.

Tax Bill Introduces New Arbitration Process
  • Australia
  • April 28 2005

The federal Parliament has finally passed the Tax Laws Amendment (Long-Term Non-reviewable Contracts) Bill 2005. The bill sets out a new arbitration process to be used in cases where a supplier and a recipient cannot reach agreement on the consideration to account for the imposition of goods and sales tax.

Orders for Security Costs in International Arbitration
  • Australia
  • May 20 2004

In the absence of any legal precedent, it is unclear how an Australian court faced with an application for security for costs in respect of an international arbitration would respond. However, the courts appear to have the power to order such security notwithstanding the lack of an express legislative foundation.

Expert Determination v Arbitration - Revisited
  • Australia
  • October 23 2003

The Supreme Court of Victoria has overturned a tribunal decision that characterized an expert determination as arbitration. Although the procedures are similar, the distinction can be crucial, particularly in areas such as domestic construction where arbitration is prohibited. The decision illustrates how to ensure that an agreement is characterized as expert determination.

Courts Seek Uniformity Between Commercial Arbitration Acts
  • Australia
  • September 11 2003

The Supreme Court of Western Australia recently held that under Western Australia's Commercial Arbitration Act, an appeal lies from the refusal of leave to appeal an arbitral award on a question of law. The decision is consistent with the policy of a uniform platform for arbitration in Australia and brings Western Australia into line with other Australian states.

Expert Determination or Arbitration?
  • Australia
  • July 31 2003

The Victorian Civil and Administrative Tribunal recently held that an expert determination agreement was in reality an agreement to arbitrate. Looking at the substance of the agreement, the tribunal was persuaded by the fact that the agreement required a judicial enquiry, allowed the right to be heard and required a determination of the dispute in accordance with the law.

Court Refers Hybrid Case to Referee
  • Australia
  • June 05 2003

A recent case concerned an interlocutory application by several defendants to have the proceedings stayed in order to allow the disputes to be resolved by arbitration. The court concluded that the case concerned both arbitrable and non-arbitrable claims, and referred the proceedings to a referee as a practical solution to avoid a multiplicity of proceedings.

Alternative Dispute Resolution Clauses Must be Clear to be Enforced
  • Australia
  • November 08 2001

In a recent case a dispute resolution clause was interpreted as an application for an interim stay of the proceedings pending dispute resolution. The case highlights the importance of having a clearly defined dispute resolution clause.

Overview (March 2001)
  • Australia
  • March 15 2001

Including: Source of Governing Laws; Arbitration Agreements; Role of the Court; International Arbitrations; Expert Appraisal v Arbitration; Arbitrators; Procedure; Awards; Exclusion Agreements

Arbitrator Breaches Natural Justice
  • Australia
  • August 31 2000

A recent application to overturn an arbitral decision was made pursuant to Section 42 of the Commercial Arbitration Act 1985, which entitles the court to set aside an award where there has been misconduct (defined to include a breach of natural justice) on the part of an arbitrator. However, the court emphasized that not every breach will be actionable.

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