On 7 March, commercial arbitration in Queensland entered a new
era after the Queensland Parliament passed the Commercial
Arbitration Bill 2012 (Qld) ("the New
The passage of the bill is part of an Australia-wide push toward
a uniform commercial arbitration regime consistent with the United
Nations Commission on International Trade Law (UNCITRAL) Model Law
on International Commercial Arbitration. The UNCITRAL Model Law,
although not binding, has been in place since 1985. The Australian
government adopted a number of the UNCITRAL Model Law articles in
legislation governing offshore commercial disputes.
Commercial Arbitration is legislated on a state-by-state basis.
This bill repeals the Commercial Arbitration Act 1990
(Qld) which adopted few of the UNCITRAL Model Law articles. It is
intended that the new legislation will provide local corporations
and individuals with a broad, instructive framework for a uniform,
efficient, court-free and inexpensive method of dispute
HOW IS THE LEGISLATION RELEVANT TO YOUR BUSINESS
Parties have the benefit of a number of provisions of the New
Law which simplify or improve the commercial arbitration
. Parties are now given more freedom to determine between them
arbitration rules and procedures which can be as expansive or as
brief as desired.
Unless the parties opt out of this procedure, in order to make
a complaint an aggrieved party must serve on the other party a
"statement of claim" outlining their grievances, and the
respondent party must serve a defence. That requirement, similar to
that of pleadings in civil proceedings, is designed to provide the
framework for a consistent procedure for the giving of evidence, as
parties are entitled to submit evidence with these documents or
refer to other evidence it will file. The process is designed to
lay all cards on the able at an early stage of the arbitration
An arbitrator now has the power to appoint experts to determine
The legislation requires the Parties to conduct proceedings
expeditiously. Penalties may flow for non-compliance and
The parties are required to appoint the arbitrator/s
themselves; they can appoint as many as they desire.
The arbitrator/s now has more power to determine the weight,
admissibility and relevance of evidence, where formerly the parties
and arbitrators were hamstrung by requirements limiting
consideration of evidence.
KEY THEMES OF THE BILL
Confidentiality (of pleadings, any award, documents disclosed by
a party under the arbitrators' direction, evidence, notes by
the arbitrators of oral evidence etc) has become paramount under
the new legislation. There are stringent requirements to be
followed in respect of confidentiality unless the parties opt out -
a significant departure from the former regime.
A strong pro-enforcement stance is also evident. Where a party
can demonstrate that an award made pursuant to the terms of a
commercial arbitration agreement has been properly issued, a court
must enforce it. Provided that a commercial arbitration clause or
agreement has been validly consented to by the parties and an order
has been properly made by compliant arbitrator/s, the court will
enforce that agreement and any orders made pursuant to it.
The new legislation provides for a more effective commercial
arbitration regime both in terms of process and enforcement.
Whether by way of a new agreement collateral to existing commercial
relationships or by the insertion of a new clause into future
commercial agreements, Queensland businesses now have a more
effective cost efficient alternative to litigation.
Acting now to implement effective arbitration clauses into your
new or existing commercial agreements might save you down the track
on significant legal fees.
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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