Why Arbitrate in Australia?
Australia offers numerous advantages to parties seeking to resolve disputes:
- Proximity to Asia
- Modern and transparent legislative framework based on the UNCITRAL Model Law
- Independent, supportive judiciary
- Expert arbitrators and sophisticated legal profession
- Multiple time zone advantages
- Stable political environment & resilient economy
- Supportive institutions and infrastructure
Australia is a Party to the New York Convention of the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention), which came into force on 24 June 1975 and has adopted the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration 1985 (Model Law), including the 2006 amendments, as its procedural law under the International Arbitration Act 1974 (Cth) (IAA).
Recent years have seen a significant increase in the use of Australian seats by international parties. This has coincided with reforms to both the Australian arbitration legislation and the ACICA Arbitration Rules to reinforce the benefits of arbitration; ensuring the expediency and neutrality of the process and the enforceability of the outcome.
Australia is a constitutional democracy which values the separation of powers between the legislature, executive and judiciary and upholds the rule of law. Australia is politically stable and one of the safest destinations in the world.
Australia provides a reliable alternative to arbitrating in other major financial centres in the Asia Pacific region.
Proximity to Asia
Australia is a geographically attractive neutral venue to arbitrate disputes between parties in the region and beyond. Its location in the Asia Pacific creates time zone convenience, and offers an alternative for parties wishing to arbitrate in a neutral jurisdiction with proximity to Asia.
In addition, ACICA has cooperation agreements in place with over 30 arbitral institutions in the region and throughout the world, which provides parties with flexibility of location while maintaining the advantages of an Australian seat. To see a list of arbitral institutions with which ACICA has cooperation agreements click here.
Modern Legislative framework
Commercial arbitration in Australia is governed by two statutory regimes; a Federal regime regulating international arbitration and State-based regimes regulating domestic arbitration. The legislative framework supporting arbitration in Australia has undergone significant reform since 2010, both at an international and domestic level, to implement pro-enforcement, streamlined arbitration regimes that reflect international best practice.
In June 2010, the Commonwealth Parliament amended the IAA to increase the effectiveness, efficiency and affordability of international commercial arbitration. In a parallel reform process that year, the Standing Committee of the Attorneys’ General agreed to implement a Model Commercial Arbitration Bill (Model Bill) to apply to domestic arbitration. The model Bill included reforms aiming to harmonises domestic arbitration law throughout Australia and ensure uniformity with the laws applying to international arbitration. The first State to implement the Model Bill was NSW, which passed the Commercial Arbitration Act 2010 (NSW). The majority of other States and Territories have now enacted similar Commercial Arbitration Acts (CAAs).
International Arbitration in Australia
International arbitrations seated in Australia are exclusively governed by the IAA. The IAA gives force of law and effect to the UNCITRAL Model Law including the 2006 amendments and to Australia’s obligations under the New York Convention. Part IV of the IAA gives effect to the Convention on Settlement of Investment Disputes between States and Nationals of Other States 1966 (ICSID Convention). In doing so, the IAA aims to “facilitate international trade and commerce by encouraging the use of arbitration as a method of resolving disputes”.
Domestic Arbitration in Australia
Similarly to the IAA, the Model Bill and the subsequent CAAs incorporate much of the 2006 Model Law, with necessary modifications to adapt the legislation to the Australian domestic setting. The result is a high level of uniformity of arbitration legislation at both a domestic and international level in Australia.
Independent & Supportive Judiciary
Australia’s commercial courts appreciate the independence and significance of arbitral proceedings and are rigorous in enforcing arbitral awards and agreements. The courts are extremely efficient and of the highest integrity.
Australia’s highest court, the High Court of Australia, has unanimously upheld the finality of international arbitral awards and voluntary nature of international arbitration agreements, recognising the role of the Courts in supporting arbitration (TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia).
Expert arbitrators and sophisticated legal profession
Australia boasts a strong, culturally diverse legal profession. Its tertiary institutions provide a world class legal education and the legal profession has a consistently high standard of practitioners with specialist expertise in international business law and cross border disputes.
Australia is home to some of the world’s most highly regarded international arbitrators. ACICA maintains extensive panels of over 100 expert international arbitrators and highly experienced international mediators, based both in Australia and overseas. The Australian Maritime and Transport Commission (AMTAC), a commission of ACICA, is an innovative provider of maritime and transport dispute resolution services, catering to the specific needs of the maritime and transport industry in the Asia Pacific region.
Australian law firms and members of the Bar have considerable international experience and have earned an enviable reputation not just for their specialist legal skills but also for their cultural awareness and sensitivity. Australian legal expertise is also highly cost competitive when compared with counterparts in the Asia Pacific region.
Supportive institutions and infrastructure
Arbitrations seated in Australia benefit from strong institutional and administrative support through ACICA and a network of centres including the Australian Disputes Centre (ADC) and Melbourne Commercial Arbitration and Mediation Centre (MCAMC) which provide world class hearing and logistical support for arbitration and mediation proceedings.
ACICA has provided support for international commercial arbitration and mediation in Australia since its inception in 1985. In 2005 ACICA launched the ACICA Arbitration Rules (ACICA Rules) which have been updated twice since that time, in 2011 and most recently in 2016. The ACICA Rules 2016 are world standard – based on the UNCITRAL Rules, they provide for emergency arbitrator provisions, confidentiality of proceedings and consolidation of arbitrations. The ACICA Rules regularly reviewed in order to ensure that they continue to reflect international best practice.
ACICA also offers Expedited Arbitration Rules 2016 which can be used for a fast tracked arbitration, typically for lower value or less complex disputes.