Recent and proposed amendments to the International Arbitration Act 1974 (Cth)

KEYWORDS: INTERNATIONAL ARBITRATION

KEY TAKEAWAY

The Civil Law and Justice Amendment Act 2015 amends the International Arbitration Act 1974 (Cth) (IAA) to clarify the retrospective application of section 21 of the IAA.

The Civil Law and Justice (Omnibus Amendments) Bill 2015 proposes further amendments including making confidentiality provisions apply on an opt-out basis and extending incapacity under section 8(5)(a) to the incapacity of either the award debtor or award creditor.

Civil Law and Justice Legislation Amendment Act 2015

Section 21, which was introduced in 2010, removed parties' ability to opt-out of the UNICTRAL Model Law. It provided that if the Model Law applies to an arbitration, State or Territory law does not apply.

Section 21 has now been amended to clarify that it applies to arbitrations pursuant to arbitration agreements made before, on or after 6 July 2010.

Civil Law and Justice (Omnibus Amendments) Act 2015

The Civil Law and Justice (Omnibus Amendments) Act 2015 has been passed by both houses of parliament and is awaiting Royal assent at the time of publication. The amendments to the IAA it will effect include the following.

1. Section 8(4) will be repealed. It currently provides that, for a foreign award to be enforced, it must be made in a New York Convention country or the party seeking to enforce the award must be domiciled or ordinarily resident in Australia or a Convention country. The repeal of section 8(4) will mean that a foreign award will be able to be enforced wherever it is made.
2. As it is currently drafted, section 8(5)(a) provides that one ground for refusing enforcement is that the award debtor was under some incapacity at the time when the arbitration agreement was made. Section 8(5)(a) will be amended to provide that the incapacity of either the award debtor or the award creditor may justify the refusal to enforce a foreign award.

Previously, the confidentiality provisions under the IAA applied on an opt-in basis (section 22(3)). The confidentiality provisions will be amended to apply on an opt-out basis.

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