Australia: Corrs High Vis: Episode 10 – Arbitration and its role in Common Law

This week Corrs High Vis considers whether arbitration can assist in the development of Common Law. Partner Andrew Stephenson and Associate Astrid Andersson consider the Australian perspective.

Corrs High Vis tackles the issues that matter in the construction industry. The podcast series, brought to you by Corrs Construction team, offers analysis and insights to help you make smarter decisions.


Alice Haze: Commentator

Andrew Stephenson: Corrs Chambers Westgarth –Partner

Astrid Andersson: Corrs Chambers Westgarth – Associate

ALICE: Hello and welcome to Corrs High Vis. My name is Alice Haze and today we will be discussing how arbitration could assist in the development of the common law. In particular, we will be discussing an article published in the International Construction Law Review in October 2016 entitled "Arbitration, can it assist in the development of the common law, an Australian point of view". Joining me today are the authors of that article – Andrew Stephenson who is a partner at Corrs and Astrid Andersson who is an associate at Corrs. Welcome Andrew and Astrid. There has recently been some amendments to the arbitration legislation in Australia. What are they and what are their implications?

ANDREW: The most significant amendment for present purposes is the abolishment of a general right of appeal which was available pursuant to section 38 of the previous commercial arbitration acts of the States of Australia. The result is that unless the parties agree there will be no right of appeal. Even where the parties do agree, the right of appeal is subject to leave being granted by the court or the relevant court. The new acts also significantly limit the circumstances in which leave will be granted. Most of the arbitration clauses in circulation at the moment do not include a right of appeal for domestic arbitrations. Therefore the general position will be that there is no right of appeal unless the parties subsequently agree which is certainly unlikely after the award. In those circumstances, for obvious reasons, the successful party will be unlikely to agree to an appeal. In an international environment, the right of appeal has not existed for many years. The only remedy associated with an award, both internationally and domestically other than the right of appeal where there is an appeal in the domestic environment, is for jurisdictional error of one type or another. Such relief is very limited and as a result there will be very few decisions of superior courts arising in those industries which extensively use arbitration clauses.

ALICE: Thank you Andrew. Are there problems associated with the prevalence of arbitration within certain industries such as construction.

ASTRID: Yes. One of the unintended side effects of the increase in arbitration in certain industries such as construction is that there is a corresponding reduction in litigation through the courts. This means that there is a decrease in new case law coming through the courts. This in turn affects the development of the common law. This can be a problem in industries such as construction where the law is particularly complex and often in need of development to keep step with new developments in technology and other progress within the field, where the law cannot develop to correspond to that, there's less certainty for the participants in the market to know what to expect when a dispute arises. For that reason, it is important that the law develop. It is particularly pronounced in the construction field because arbitration is so common. In fact it is the default dispute resolution mechanism.

ALICE: Thank you Astrid. In your article you propose a way to mitigate the impact of arbitration on the development of common law. What is your proposal.

ANDREW: The proposal which we recommended was that there be publication of awards in a manner which preserves one of the primary advantages of arbitration, that is confidentiality, but does disclose the arbitrator's name, the facts appropriately sanitised to maintain confidentiality and most importantly the legal reasoning. While these decisions of arbitrators will be of no precedential effect, that will not prevent them from being referred to argument in superior courts or in other arbitrations, in much the same way as other sources are used in courts on a regular basis, for examples, decisions of superior courts in the United States, Canada, Singapore and England. It also has the advantage because the name of the arbitrator is published for parties wishing to appoint an arbitrator to review some of the arbitrator's previous work to ensure that the arbitrator is suitably qualified for appointment as an arbitrator. Unfortunately, the number of people available to be appointed includes people whose skill set is not as high as it might be for a particular arbitration relating to a particular subject matter. More information being available to parties to an arbitration allows a better educated selection process than would otherwise arise. So for these reasons, we have advocated in the article that arbitrators awards be published. Obviously over time, some arbitrators will develop a reputation of being effective thinkers about complex problems and their decisions will develop an independent currency in the same way as academics do through their published works.

ALICE: Thanks to Andrew and Astrid that was really interesting. To our listeners, my name is Alice Haze and thank you very much for listening. We look forward to you joining us for the next edition of Corrs High Vis. Thank you for joining us.

This podcast is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice about your specific circumstances.

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.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions