The Federal Court recently declined an application for leave to issue subpoenas pursuant to Section 23 of the International Arbitration Act 1974 on the basis that Section 23 of the act did not give the court jurisdiction to do so in aid of an arbitration seated outside Australia. While some practitioners will agree with the court's strict interpretation of the act, others – particularly those engaged in international arbitration in Asia-Pacific – may find the decision less satisfactory.
In a recent case, the Federal Court stayed the proceedings brought before it and referred the dispute to arbitration, save for the ultimate question of whether a winding-up order against the first defendant should be made. Among other things, the decision illustrates the policy of minimal curial intervention that the Australian courts follow where arbitration is concerned. It also confirms the arbitrability of certain claims under the Corporations Act 2001.
The Federal Court of Australia has held that parties who agree to arbitration or exclusive jurisdiction clauses are bound by their agreements. Only in exceptional circumstances will the court grant a stay that has the effect of overriding an exclusive jurisdiction agreement.
The federal Parliament has finally passed the Tax Laws Amendment (Long-Term Non-reviewable Contracts) Bill 2005. The bill sets out a new arbitration process to be used in cases where a supplier and a recipient cannot reach agreement on the consideration to account for the imposition of goods and sales tax.
In the absence of any legal precedent, it is unclear how an Australian court faced with an application for security for costs in respect of an international arbitration would respond. However, the courts appear to have the power to order such security notwithstanding the lack of an express legislative foundation.
The Supreme Court of Victoria has overturned a tribunal decision that characterized an expert determination as arbitration. Although the procedures are similar, the distinction can be crucial, particularly in areas such as domestic construction where arbitration is prohibited. The decision illustrates how to ensure that an agreement is characterized as expert determination.
The Supreme Court of Western Australia recently held that under Western Australia's Commercial Arbitration Act, an appeal lies from the refusal of leave to appeal an arbitral award on a question of law. The decision is consistent with the policy of a uniform platform for arbitration in Australia and brings Western Australia into line with other Australian states.
The Victorian Civil and Administrative Tribunal recently held that an expert determination agreement was in reality an agreement to arbitrate. Looking at the substance of the agreement, the tribunal was persuaded by the fact that the agreement required a judicial enquiry, allowed the right to be heard and required a determination of the dispute in accordance with the law.
A recent case concerned an interlocutory application by several defendants to have the proceedings stayed in order to allow the disputes to be resolved by arbitration. The court concluded that the case concerned both arbitrable and non-arbitrable claims, and referred the proceedings to a referee as a practical solution to avoid a multiplicity of proceedings.
In a recent case a dispute resolution clause was interpreted as an application for an interim stay of the proceedings pending dispute resolution. The case highlights the importance of having a clearly defined dispute resolution clause.
Including: Source of Governing Laws; Arbitration Agreements; Role of the Court; International Arbitrations; Expert Appraisal v Arbitration; Arbitrators; Procedure; Awards; Exclusion Agreements
A recent application to overturn an arbitral decision was made pursuant to Section 42 of the Commercial Arbitration Act 1985, which entitles the court to set aside an award where there has been misconduct (defined to include a breach of natural justice) on the part of an arbitrator. However, the court emphasized that not every breach will be actionable.