In a move to be applauded by the arbitration community, the
Standing Committee of Attorneys General (SCAG) on
Friday agreed to the content of a new Commercial Arbitration Bill
that will completely overhaul the existing Uniform Commercial
Arbitration Acts (UCAAs) that are in place around
The benefit of this overhaul for Australian companies is that it
will reinstate arbitration as providing a fair, quick and
cost-effective process for the final resolution of commercial
disputes - indeed this is spelled out in the Act as its paramount
object. Whilst the text of the Bill approved by SCAG on Friday has
not yet been released, some of the key changes as outlined in the
2009 Consultation Draft Bill include boundaries for court
intervention in arbitral proceedings and limiting the grounds for
appeal against an arbitral award. These amendments will give
parties much greater confidence and certainty that when they embark
on an arbitration the outcome will be final and binding.
The amendments are a much needed response to the consistent
criticism of domestic arbitration. Domestic arbitration has been
stifled in Australia not only by the limiting provisions of the
existing UCAAs but also by the tendencies of parties and their
lawyers to pursue time-consuming procedural processes and the
intervention by some courts in the arbitral process. This stifling
has been to such an extent that the attractiveness of arbitration
as a fast and cost-effective alternative dispute resolution process
has been undermined (in a domestic context).
How will the existing legislative regime be changed?
The fundamental change is that the new UCAAs will be largely
based on the UNCITRAL Model Law on International Commercial
Arbitration ("Model Law"), which was a
template law developed by the United Nations Commission on
International Trade Law to help countries to reform and modernize
their arbitration laws. Its provisions cover the key steps in the
arbitral process: arbitral agreement, appointment &
jurisdiction of the arbitrator, the arbitral process, court
involvement, and recognition and enforcement of the arbitral
Although the Model Law was primarily intended for international
arbitration the drafters acknowledged that it could be used to
reform domestic arbitration legislation, and indeed 37 out of the
80 countries that have enacted the Model Law have done just that.
Australia will follow suit by largely incorporating the Model Law
provisions into its amendments to the UCAAs - except for a few
tweaks to make them applicable in a domestic setting.
Need to know more about how the new UCAAs will work?
The amendments to the existing domestic arbitration legislation
will be so significant that they will render all previous
commentary on this area redundant. To assist arbitration users and
their advisers in navigating their way through the operation of the
new UCAAs, Doug Jones, Head of the International Arbitration and Major Projects Group, will be publishing a
book specifically on this topic. The book will provide a background
to the reform process, an in-depth consideration of up-to-date case
law affecting the use and treatment of arbitration agreements, an
annotation of the new UCAAs and discussion of alternative forms of
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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