On 3 January 2017, the Supreme Court of Western Australia introduced the Supreme Court (Arbitration) Rules 2016 (WA) (Arbitration Rules).1
The Arbitration Rules outline procedures and contain the forms relevant to the commencement of actions in the Supreme Court that relate to domestic and international arbitration.
WHY ARE THE ARBITRATION RULES IMPORTANT?
The Arbitration Rules are important for three reasons.
- Firstly, they simplify and clarify the process of initiating court actions relating to international and domestic arbitration in Western Australia.
- Secondly, they promote consistency across other Australian jurisdictions in relation to arbitration.
- Thirdly, they demonstrate the willingness of the courts in Western Australia to embrace arbitration as a method of dispute resolution.
WHAT DO THE ARBITRATION RULES COVER?
The International Arbitration Act 1974 (Cth) (IAA) and Commercial Arbitration Act 2012 (WA) (CAA) grant the Supreme Court jurisdiction to enforce and support international and domestic arbitration respectively.
The Arbitration Rules outline the procedures that parties need to follow when making applications to the Western Australian Supreme Court under the IAA and CAA for:
- staying proceedings or referring proceedings to arbitration;
- setting aside and enforcing arbitral awards;
- subpoenaing witnesses or evidence;
- disclosure of confidential information;
- interim measures, including injunctions;
- enforcement of procedural orders; and
- the appointment of arbitrators and jurisdiction of arbitrators.
The Arbitration Rules operate in conjunction with the Rules of the Supreme Court 1971 (WA) and prescribe the specific requirements for various applications and the specific forms to be used in making applications under the IAA and CAA. By centralising the risks relevant to arbitrations, the legislature has sought to assist practitioners and parties to arbitration.
CONSISTENCY ACROSS OTHER JURISDICTIONS
In November 2009, the Australian government announced an overhaul of the domestic arbitration regime proposing uniform arbitration legislation. Subsequently, each state and territory enacted uniform legislation to give its Supreme Court jurisdiction to enforce domestic arbitration in each state and across states.
Nearly all states and territories in Australia have already introduced specific and detailed procedural rules for actions relating to domestic and international arbitration.2 With Western Australia now having introduced its own procedural rules, the trend of uniformity and commitment to arbitration across Australia continues.
SUPPORT FOR ARBITRATION AS A METHOD OF DISPUTE RESOLUTION
The Supreme Court of Victoria has declared its support for and assistance to disputants wanting to resolve all or part of their dispute by arbitration.3
While the Supreme Court of Western Australia has not publicly declared its support, it has adopted and mirrored the arbitration procedural rules in place in Victoria. In addition, there have been a spate of recent Supreme Court decisions4 granting stay applications and upholding parties' arbitration agreements.
The introduction of the Arbitration Rules is a clear sign of the Western Australian courts' commitment to international and domestic arbitration and should give practitioners and their clients confidence in the courts' ability to deal with arbitration matters.
1 Part 1 (Preliminary matters) came into effect on 20 December 2016 and the substantive provisions of the Arbitration Rules came into effect on 3 January 2017.
2 Supreme Court (Chapter II Arbitration Amendment) Rules 2014 (Vic); Uniform Civil Procedure Rules 2005 (NSW) Part 47; Supreme Court Civil Rules 2006 (SA) Chapter 15 Part 4; Supreme Court Rules 2000 (Tas) Part 32, Division 1; Supreme Court Amendment (Commercial Arbitration) Rules 2013 (NT).
3 Practice Note 8 of 2014, Commercial Arbitration Business (Vic).
4 Samsung C&T Corporation v Duro Felguera Australia Pty Ltd  WASC 193; Australian Maritime Systems Ltd v McConnell Dowell Constructors (Aust) Pty Ltd  WASC 52; KNM Process Systems SDN BHD v Mission Newenergy Ltd (formerly known as Mission Biofuels Ltd)  WASC 437.
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
Client Service Award
|Employer of Choice for Gender Equality