International Arbitration Act 1974

The IAA implements a favourable system in which to practice international arbitration and provides parties with the flexibility to agree on the best process for dealing with their particular dispute.

A link to the IAA is provided here: International Arbitration Act 1974 (Cth)

Key elements of the legislation include:

Model Law as the Procedural Law

The IAA designates the Model Law as the exclusive, mandatory procedural law for all international arbitrations seated in Australia.

Statutory duty of confidentiality

Arbitral proceedings are, by their nature, private but not necessarily confidential.  In 1995, the Australian High Court ruled in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 that a general obligation of confidence in arbitration proceedings did not arise by way of implication in Australia.  The express agreement of the parties, including by incorporating reference to procedural rules containing confidentiality provisions, was required. Following amendments to the legislation in 2015 and pursuant to sections 22 and 23C of the IAA, unless the parties otherwise agree, a statutory duty of confidence applies.  As such, the IAA requires parties to refrain from disclosing confidential information except in the limited circumstances set out in the IAA.

Limitation of grounds to refuse enforcement

The enforcement of arbitral awards made in Australia (‘non-foreign awards’) is now governed by Article 35 and 36 of the Model Law which limit the grounds on which a party may seek to resist enforcement.  Further, section 8(3A) of the IAA clarified that the court has no residual discretion to refuse enforcement of a foreign arbitral award on any grounds other than those provided in ss 8(5) and 8(7) of the IAA, which in effect reproduce the grounds established in Article 5 of the New York Convention.

Optional provisions — flexibility

The IAA framework places a strong emphasis on party autonomy by providing a suite of optional provisions. These include provisions on, for example, tribunal powers to award costs and security for costs, to continue proceedings notwithstanding party default and to order interest on an award.

These simple ‘opt in’ and ‘opt out’ provisions offer parties the flexibility to adapt their procedure to suit relevant circumstances.

Limits to and guidance on judicial intervention

The IAA provides guidance and limits to the exercise of judicial power in relation to arbitration. When performing functions or exercising powers under the IAA or the Model Law, courts are required by section 39 of the IAA, to have regard to its objects and the fact that arbitration is an efficient, impartial, enforceable and timely method by which to resolve commercial disputes and that awards are intended to provide certainty and finality.

The IAA also sets out the specific circumstances when, and the bases on which, courts may act.  Similarly, the Model Law provides that in matters governed by it, no court shall intervene except were provided in that law.