In July 2010, new legislation governing international
arbitration in Australia, the International Arbitration Amendment
Act 2010 (Cth), passed into law and created a framework for
international arbitration reflecting that used throughout the
world. This reform was complemented by the Commercial Arbitration
Bill (Cth), a Model Law drafted by the Standing Committee of
Attorneys-General with the key purpose of creating a uniform
framework for domestic arbitration in Australia. Aims included
aligning 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.
As reported in the November 2011 edition of
Critical Path, the process of domestic reform was led by NSW in
2010 with other states and territories developing legislation based
on the Model Law. While the progress towards adopting a uniform
commercial arbitration legislation in each state/territory has been
staggered, momentum grew towards the end of 2011. The uniform Model
Law has been adopted and is currently in operation in NSW, Victoria
and South Australia. Both Tasmania and the Northern Territory have
also assented to a uniform Act and are currently in the process of
setting a commencement date. The current status of each
state/territory is detailed below.
New South Wales - Commercial Arbitration Act
(NSW) 2010 – the Act has been operating in New South
Wales since 1 October 2010.
Northern Territory - Commercial Arbitration
(National Uniform Legislation) Act (NT) 2011 – this Act
received Royal Assent on 31 August 2011. The Act will commence on a
day to be fixed by the Territory Administrator by Gazette
Western Australia - Commercial Arbitration
Bill (WA) 2011 – this Bill was introduced into parliament
on 15 June 2011 and is currently under review by the Legislative
Council and the Parliamentary Secretary representing the Attorney
Australian Capital Territory - yet to
introduce a Bill into parliament.
Victoria - Commercial Arbitration Act (VIC)
2011 – a Bill was introduced into parliament on 16 August
2011 and received Royal Assent on 18 October 2011. The Act
commenced on 17 November 2011.
Tasmania - Commercial Arbitration
(Consequential Amendments) Act (TAS) 2011 – this Act was
passed by both Houses of Parliament and given Royal Assent on 7
September 2011. It has yet to come into force.
Queensland - Commercial Arbitration Bill (QLD)
2011 – this Bill was introduced into parliament on 15
November 2011 and has not yet progressed any further.
South Australia - Commercial Arbitration Act
(SA) 2011 – a Bill was introduced into parliament on 4
May 2011 and received Royal Assent on 22 September 2011. The Act
commenced on 1 January 2012.
It is likely that a Commercial Arbitration Act will be in
operation in at least five states/territories by the end of this
year. It is also of note that while the Queensland and Western
Australian Bills are currently undergoing minor drafting amendments
to correct errors and inconsistencies, the general construction of
each Act has been consistent with the uniform legalisation proposed
by the Standing Committee in May 2010.
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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