On 21 November 2008, the Australian Government announced a review of the International Arbitration Act 1974 (Cth), an essential and welcome step in improving its operation and promoting Australia as a place for international arbitration.

The Act is Australia's main legislation for international arbitration and incorporates the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention), the UNCITRAL Model Law on International Commercial Arbitration (Model Law) and the Convention for the Settlement of Investment Disputes between States and Nationals of other States (ICSID Convention ).

Since the Act was introduced in 1974 it has undergone only two significant changes: in 1989 for the incorporation of the Model Law, and in 1990 when the ICSID Convention was implemented into the Act.

The objectives of the review are to consider whether the Act should be amended to:

  • ensure it provides a comprehensive and clear framework governing international arbitration in Australia;
  • improve the effectiveness and efficiency of the arbitral process while respecting the fundamental consensual basis of arbitration; and
  • consider whether to adopt best practice developments in national arbitral law from overseas.

The discussion paper 1 identifies a number of areas which are currently being considered for amendment, including whether the Act should be amended:

  • to expand the definition of "agreement in writing" in Part II of the Act so as to reflect the broader definition contained in the UNCITRAL Model Law (as revised in 2006);
  • to provide expressly that a court may only refuse the recognition and enforcement of an arbitral award if one of the grounds listed in sections 8(5), 8(7) or 8(8) of the Act is fulfilled;
  • to expressly provide that the Act governs exclusively international commercial arbitration in Australia to which the Model Law applies;
  • to reverse the Eisenwerk v Australian Granites Ltd [2001] 1 Qd R 461 decision by adopting a provision stating that choice of arbitration rules does not constitute an opting-out of the Model Law;
  • to clarify whether sections 25 to 27 of the Act as (as part of the optional provisions in part III, division 3 of the Act) will apply on an opt-in or opt-out basis;
  • to adopt the 2006 amendments to the UNCITRAL Model Law;
  • to allow regulations to be made for designating an arbitral institution to perform the functions under articles 11(3) and 11(4) of the Model Law (ie for the appointment of arbitrators); and
  • to grant the Federal Court of Australia exclusive jurisdiction for all matters arising under the Act.

The Attorney-General's Department has invited comments and or recommendations in relation to the above areas or in relation to any other matters which might contribute to and improvement of the Act. Submissions on the discussion paper are sought by 16 January 2009.

Footnote

1. Available at www.ag.gov.au/internationalarbitration

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