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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.
Section 8(4) will be repealed.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.
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.
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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