In this article we consider the Commercial Arbitration Bill 2010
(Cth) and its progress across the States and Territories towards
enacting the uniform national legislation.
What is it?
The Bill is intended to align Australian domestic arbitration
processes with international arbitration processes, enhancing the
powers of arbitrators and increasing efficiency and certainty by
reducing the scope for intervention by Courts.
The Standing Committee of Attorneys-General agreed on the
wording for the uniform legislation in May 2010. To date, NSW,
Victoria, South Australia, Tasmania and the Northern Territory have
brought uniform legalisation into effect. Western Australia has
introduced a Commercial Arbitration Bill into parliament leaving
Queensland and Canberra as the only states/territories yet to
introduce a bill.
Each State's legislation also includes optional provisions
for arbitration agreements should a dispute arise and transitional
arrangements for the introduction of the Act.
Why has it come about?
Participants in the construction industry are well aware that it
is the source of some of the most complex and technical legal
disputes. This complexity has demanded the use of expert
determinations, adjudication, litigation and arbitration to resolve
the various types of dispute. In Australia, arbitration has
historically been the least popular of these. Criticisms
concern cost, efficiency, certainty and uniformity.
A lack of uniformity across the States has caused uncertainty as
to the enforceability and finality of arbitration awards in
Australia. Claimants have often preferred more traditional means of
dispute resolution such as litigation.
Criticisms as to cost and efficiency in arbitration are not
unique to Australian domestic arbitration. A study of the Corporate
Counsel International Arbitration Group in 2010 found that 100% of
the corporate counsel participants believe that international
arbitration "takes too long" and "costs too
The Bill was enacted in 2010 to combat the above limitations of
arbitration in Australia.
The NSW Act
The Commercial Arbitration Act 2010 was enacted on 28 June 2010
and came into force on 1 October 2010. The paramount objective of
the uniform legislation, as stated in the Act, is to facilitate the
"fair, quick, cost effective and final resolution of disputes
by arbitration by allowing the parties greater procedural control
and further restricting the basis for court intervention and
appeals of arbitral awards."
The current status of the legislation around the other
jurisdiction is as follows:
Commercial Arbitration (National Uniform Legislation) Act (NT)
2011 – this Act was assented to on 31 August 2011 and
contains minor technical amendments to the NSW Act. The Act will
commence on a day to be fixed by the Territory Administrator by
Commercial Arbitration (Consequential Amendments) Act (TAS)
2011 – this Act was passed by both Houses of Parliament
and given the Royal Assent on 7 September 2011. It is consistent
with the NSW Act and has yet to come fully into force.
Commercial Arbitration Act (VIC) 2011 – this Bill was
introduced into parliament on 16 August 2011 and assented to on 18
October 2011. The Act contains minor technical amendments to the
model Bill to make it consistent as far as possible with the
Commercial Arbitration Acts already passed in NSW and Tasmania. The
Act will commence on a day to be fixed by proclamation.
Commercial Arbitration Bill (WA) 2011 – this Bill was
introduced into parliament on 15 June 2011 and has yet to come into
Commercial Arbitration Bill (SA) 2011 – this Bill was
introduced into parliament on 4 May 2011 and was assented to on 22
September 2011. It will commence on proclamation.
Queensland and Canberra have yet to introduce a Bill.
What can we expect?
Assuming the uniform laws are adopted throughout Australia, it
will only be a matter of time before confidence returns and
arbitration will take its place as a reliable and viable
alternative to litigation in construction disputes.
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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