By Justin Hogan-Doran -
Snapshot
- Commencing arbitrations requires close attention to the terms of any clause or agreement, the rules and procedures of the arbitral body selected by the parties, and contractual and statutory limitation provisions.
- The nomination and appointment of an arbitrator is key to addressing the risks and perverse incentives of arbitration.
- The Supreme Court has recently reissued Practice Note SC Eq 9 on Commercial Arbitrations regulating the filing of and management of arbitration related proceedings.
A dispute governed by an arbitration agreement leads to a series of questions which a lawyer must consider and advise upon before the arbitration in fact commences. This article addresses the practical steps necessary to commence an arbitration, and the conceptual framework for navigating this phase of proceedings.
The article assumes that the dispute is within the scope of the arbitration clause. Whether arbitration is binding or optional, arbitration absent agreement is ineffective and may be a long way to go to get no useful outcome. Courts will, however, suppose that parties who agree to arbitrate intend to avoid fragmentation of disputes, so the scope of an arbitration clause can be given a liberal interpretation (Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170 at [161]-[206]). Language such as ‘arising out of or in connection with’ a contract indicates the widest view, and would encompass all common law, equitable and statutory claims (if arbitrable) covering both pre- and post-contractual claims.
Identify the correct legal regime and correct court
Whether it is international or domestic arbitration, the first thing to consider is the arbitration clause as an expression of the private law of the parties, seen against the backdrop of the provisions of the 1985 UNCITRAL Model Law on International Commercial Arbitration (‘Model Law’).
The Model Law has been adopted into Australian law for ‘international’ arbitration through s 16 and Schedule 2 of the International Arbitration Act 1974 (Cth) (‘IAA’). For ‘domestic’ arbitration it has been adopted through national uniform Commercial Arbitration Acts including the 2010 NSW Act (‘CAA’). It reflects, and supports, party autonomy by providing a legal architecture for each stage of an arbitration including the revision and enforcement of awards.
