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Article: The High Court of Australia and the Principle of ‘minimal’ curial intervention in arbitration

September 27th, 2025

Article: The High Court of Australia and the Principle of ‘minimal’ curial intervention in arbitration

Geoff Farnsworth FCIArb
Partner, Holding Redlich
President, Ciarb Australia Branch

Meru Sharma
Lawyer, Holding Redlich

1. Summary

The High Court of Australia’s 2024 decisions in Carmichael, Tesseract and Chevron show that the principle of ‘minimal’ curial intervention in arbitration in Australia remains contentious. Minimal curial intervention is an important principle in Australian arbitration law as it is based on the UNCITRAL Model Law. Consistent with the principle of party autonomy, it recognises that the parties have decided to resolve disputes through arbitration, in preference to and the (partial) exclusion of the courts.

In Carmichael, the High Court recognised its obligation to enforce binding arbitration agreements despite any purported burden or inconvenience for the parties. Whereas Tesseract and Chevron show that there is no uniform practice in curial intervention under Article 34 of the Model Law. This lack of a unified approach raises important questions about the future direction of arbitration jurisprudence in Australia.

This article will answer:

  • what ‘minimal’ curial intervention in arbitration means;
  • when does the High Court of Australia think curial intervention is warranted; and
  • what is the ‘state of arbitration’ in Australia.

2. Introduction

In 2024, the High Court of Australia handed down judgments in three cases concerning arbitration:

  1. Carmichael Rail Network Pty Ltd as Trustee for the Carmichael Rail Network Trust v BBC Chartering Carriers GmbH & Co KG & Anor [2024] HCA 4 (Carmichael), decided on 14 February 2024, which dismissed an appeal from the Full Federal Court of Australia (case summary here);
  2. Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24 (Tesseract), decided on 7 August 2024, which allowed an appeal but affirmed the decision of the Court of Appeal of South Australia (case summary here); and
  3. CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28 (Chevron), decided on 14 August 2024, which dismissed an appeal from the Court of Appeal of the Supreme Court of Western Australia (case summary here).

These decisions provide guidance on arbitration law and practice in Australia and shed light on the relationship between courts and arbitration, particularly the extent and limits of judicial intervention. A close review of the decisions demonstrates the High Court’s recognition of its critical role in upholding the binding nature of arbitration agreements under section 7 of the International Arbitration Act 1974 (Cth) (similar to Article 8 of the UNCITRAL Model Law on International Commercial Arbitration (Model Law) and section 8 of the various State and Territory Commercial Arbitration Acts)[1] while simultaneously revealing a diversity in its approach to intervening in ongoing arbitrations through Article 34 of the Model Law.

Together, these judgments may serve as authorities for various other principles governing arbitrations including principles that relate to the interpretation of arbitration agreements in cargo damage claims, stay of foreign arbitration for domestic court proceedings, the applicability of proportional liability regimes in arbitrations, the meaning of “law of the land”, the manner of adapting or altering the substantive law of the land to fit an arbitration context, the “final and binding” character of awards, the status of an arbitrator after a final arbitral award, the ‘jurisdiction/admissibility distinction’, and the Court’s standard of review in relation to arbitral awards. These judgments also provide important guidance on multiple aspects of arbitration practice and procedure, including the drafting of arbitration agreements, the conduct of legal representation in arbitration, the role of arbitrators in determining disputes, and the conduct of domestic and international parties engaged in an arbitration.

3. Curial intervention in arbitration

Minimal court intervention in arbitration is critical to modern arbitration practice and law as:

  • limiting domestic curial intervention is necessary to maintain the Model Law’s uniformity with general international arbitration practice; and
  • minimal curial intervention is an essential aspect of the principle of ‘party autonomy’, which itself is an essential basis for the drafting of the Model law.

4. Maintaining international uniformity through minimal curial intervention

The Model Law is a codification of contemporary international arbitration practice. It “reflects worldwide consensus on key aspects of international arbitration practice having been accepted by States of all regions and the different legal or economic systems of the world”.[2] Its codification was intended to resolve the disparities in national arbitration laws that created unsuitable circumstances to resolve international commercial disputes.[3] In Australia, the International Arbitration Act gives effect to the Model Law[4] and the various Arbitration Acts are based on it. So, the Model Law is critical in both domestic and international arbitration.

The Model Law maintains its international uniformity by restricting “unpredictable or disruptive court interference”.[5] If domestic courts were allowed to apply the Model Law or Arbitration Acts solely in accordance with domestic statutory dictates or domestic norms of a particular state,[6] they could potentially fragment the Model Law and remove its ability to be a codification of a general international practice.[7] In general, to the extent that the courts have powers under the Model Law, they are limited to providing assistance and supervision for the arbitration,[8] or as enforcers of arbitral awards.[9]

The Model Law minimises curial intervention and the involvement of the courts in several ways, including:

  • Article 2A of the Model Law, which is intended to prevent domestic courts from solely interpreting the Model Law by applying peculiar domestic principles.[10] It requires that the Model Law be interpreted to “promote uniformity in its application” and “conformity with the general principles on which [the Model Law] is based”.
  • Article 8 of the Model Law, which restricts the ability of a court to hear a matter which is the subject of an arbitration agreement. It states:

“(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

(2) Where an action referred to in paragraph (1) of this article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.”

A similar provision is found in section 8 of the state Commercial Arbitration Acts. In addition and similarly, section 7 of the International Arbitration Act sets out as follows:

“(2) Subject to this Part, where:

(a)  proceedings instituted by a party to an arbitration agreement to which this section applies against another party to the agreement are pending in a court; and

(b) the proceedings involve the determination of a matter that, in pursuance of the agreement, is capable of settlement by arbitration;

on the application of a party to the agreement, the court shall, by order, upon such conditions (if any) as it thinks fit, stay the proceedings or so much of the proceedings as involves the de-termination of that matter, as the case may be, and refer the parties to arbitration in respect of that matter.

[…]

(5) A court shall not make an order under subsection (2) if the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed.”

  • Article 16 of the Model Law, which empowers the tribunal to determine its own jurisdiction (a codification of the competence-competence principal).
  • Article 34 of the Model Law, which describes the limit of Court intervention in an arbitration. Judicial review of an arbitral award is permitted only if it breaches one of the specific grounds outlined in Article 34. Outside of those grounds, courts lack authority under the Model Law to interfere with or re-view the arbitral award. This ensures that the principle of minimal curial intervention is maintained, with courts playing a supervisory role as delimited by the Model Law. Article 34 states as follows (with appropriate alterations made in the Arbitration Acts to reflect the local context):[11]

“(1) Recourse to a court against an arbitral award may be made only by an application for set-ting aside in accordance with paragraphs (2) and (3) of this article.

(2) An arbitral award may be set aside by the court specified in article 6 only if:

(a) the party making the application furnishes proof that:

(i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of this State; or

(ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case;

(iii) or the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters be-yond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or

(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law; or

(b) the court finds that:

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or

(ii) the award is in conflict with the public policy of this State.

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request had been made under article 33, from the date on which that request had been disposed of by the arbitral tribunal.

(4) The court, when asked to set aside an award, may, where appropriate and so requested by a party, suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside.”

In Carmichael, the High Court of Australia considered section 7 of the International Arbitration Act (Article 8 of Model Law). In Tesseract, reference was made to Article 34(2)(b), while in Chevron, the decision concerned the application of Article 34(2)(a)(iii).

5. Upholding party autonomy through minimal curial intervention

An essential principal of modern arbitration is the notion of ‘party autonomy’ – in fact, it is perhaps ‘the most important principle’ on which the Model Law and the Arbitration Acts are based.[12] As described by Gageler J (as he then was) and French CJ in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5,[13] party autonomy refers to:

“[S]atisfaction pursuant to the [parties’] prior accord of the causes of action…thereby precluding the recourse to the original rights the determination of which has been referred to arbitration…the foundation of arbitration is the determination of the parties’ rights by the agreed arbitrators pursuant to the authority given to them by the parties.”[14]

In conducting any review of arbitral awards or agreement, a court must give weight to the principal of party autonomy.[15] Party autonomy is given effect under the Model Law by various provisions, including Art 8 and Art 34:[16]

  • Article 8: the fact of choosing to arbitrate a dispute (and reflecting that intention through an arbitration agreement) is a manifestation of party autonomy, i.e. by exercising their autonomy, the parties have chosen to submit their dispute to arbitration, thereby foregoing their right to have it resolved by a court. Consequently, party autonomy can only be fully respected when a binding arbitration agreement is given its full effect. This aspect of party autonomy is best reflected in Art 8 of the Model Law (and section 7 of the International Arbitration Act) which make it necessary for the Court to give effect to a binding arbitration agreement by staying any court proceedings that have been commenced in conflict with the agreement. The principle of party autonomy is closely related to the principle of minimal curial intervention in arbitration
  • Article 34: as the International Arbitration Act recognises, the Model Law and the Act are intend-ed to facilitate the use of arbitration agreements in international trade,[17] because arbitration is an efficient, impartial, enforceable and timely method by which to resolve commercial disputes and arbitral awards are intended to provide certainty and finality.[18] To give effect to the arbitration agreement and party autonomy, the Model Law expressly restrains the involvement of the courts to the limited grounds of review under Article 34. Intervention by courts in arbitrations, whether purportedly to give effect to party autonomy or not, would be contrary to party autonomy that existed at the time when the parties agreed to resolve their dispute outside of the court system.

In promoting certainty by upholding party autonomy, these provisions also restrain curial intervention in arbitration practice. For Article 8, the parties’ preference for the arbitral tribunal as the primary determiner of the dispute demands a limited role of the courts in their dispute. Article 34 expressly limits court review of arbitral awards. The close relation between party autonomy and minimal curial intervention means that curial intervention must be limited to give full effect to party autonomy such that minimal curial intervention itself becomes an essential principle of modern arbitration practice.

6. What Carmichael, Tesseract and Chevron tell us about the state of arbitration in Australia

While the High Court took a unanimous approach in Carmichael, the decisions in Tesseract and Chevron reflect a diversity of opinion on the High Court in relation to modern arbitration practice and the approach to the rules governing curial intervention in arbitration. In Carmichael, the High Court unanimously gave effect to an arbitration agreement, limiting curial intervention in arbitration process to give effect to party autonomy. In Tesseract, the High Court differed on the importance of Article 34 to the issue before the Court. The majority judgments found that Article 34 was a primary (or even sole consideration) while the dissenting judgments found that Article 34 was not relevant at all. Even within the majority judgments, there were different approaches to the issue including in relation to whether and how to adapt a law to the arbitration context. In Chevron, the majority and dissenting judgments differed on whether Article 34 is triggered by a tribunal being functus officio or not. The majority and dissenting judgments also differed on the interrelationship between Article 16 and Article 34.

The judgments also highlight several outstanding issues in relation to modern arbitration law, including:

  • is there arguably a presumption in favour of an arbitration agreement being binding under the Model Law?
  • is it necessary for the Court to enquire whether a law can be moulded or applied to the arbitration context? If so, what is the exact enquiry that the Court should undertake and what factors can the Court consider? Should the Court consider whether finality of decision is reached by the law or whether the intention of the drafter of the law is achieved after moulding the law?
  • is Article 34(2)(b) the only ground under which the Court may reject that a selected law or regime is not applicable to the dispute?
  • is the jurisdiction/admissibility distinction the most correct test for determining whether a matter exceeds the jurisdiction of the arbitrator? If not, what is the correct test
  • is there an operative interpretive principal that the parties intended an arbitrator to determine all jurisdiction issues (instead of a court), unless there is clear language to the contrary?
  • do Article 16 and Article 34 overlap or is there a distinction? can Article 16 be relied on by an arbitrator to give a binding award on its jurisdiction or does it only allow an arbitrator to make a preliminary finding?

In relation to the principle of curial intervention, it appears that some judges may view this principle as more important than others. Jagot & Beech-Jones JJ’s judgments in Tesseract and Chevron show that they are proponents of limited curial intervention by reference to Article 34. For their Honours, Article 34 of the Model Law is the only provision that trumps party autonomy and justifies court intervention in the arbitral process. In addition, their Honours’ judgment in Chevron suggests a broad application of Article 34 (together with Article 16), finding that issues should be carefully framed to not intervene where the issue can be dealt with by the arbitrator themselves. In alignment with this, they found in Chevron that there is an ‘operative interpretive principal’ that jurisdiction issues are to be determined by the arbitral tribunal unless there is express language to the contrary. In contrast, Edelman J and Steward J’s judgment in Tesseract show an inherently differing view about the application of Article 34 than Jagot & Beech-Jones’ judgments as neither Edelman J nor Steward J consider Article 34 relevant or applicable in Tesseract and instead considered factors not stated in Article 34.

If minimal curial intervention is an important principle to modern arbitration practice, then there is some benefit in the remainder of the High Court adopting the broad view of Jagot & Beech-Jones JJ in relation to Article 34. The Model Law restricts the Court’s enquiry to the grounds under Article 34 to restrict a court’s intervention into the arbitral process as autonomously chosen by the parties. So, framing the enquiry beyond the terms of Article 34 appears to conflict with the notion of minimal curial intervention under the Model Law. In alignment with Jagot & Beech-Jones JJ’s judgments, it is arguable that the test for adapting the proportionate liability regime should also be framed in terms of Article 34, i.e can the proportionate liability regime be moulded in a way that would mean that the arbitrator’s decision made under it is not ultra vires under Article 34. This provides a cohesive and uniform test that is consistent with the principle of minimal curial intervention as it prevents unnecessary peculiar domestic principles of interpretation.

Overall, the Court should aim to adopt a uniform practice about modern arbitration law and the principle of minimal curial intervention. Without uniformity, there is a fear of the Australian practice straying from the international practice. It also creates an instability for a party involved in an arbitration as it creates doubt about how the High Court may consider the appeal.

[1] Commercial Arbitration Act 2010 (NSW); Commercial Arbitration (National Uniform Legislation) Act 2011 (NT); Commercial Arbitration Act 2013 (Qld); Commercial Arbitration Act 2011 (SA); Commercial Arbitration Act 2011 (Tas); Commercial Arbitration Act 2011 (Vic); Commercial Arbitration Act 2012 (WA); Commercial Arbitration Act 2017 (ACT).

[2] United Nations Commission on International Trade Law, ‘UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006 (Model Law).

[3] Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24 (Tesseract) [33].

[4] International Arbitration Act 1974 (Cth) s 16.

[5] Tesseract [333].

[6] Mitsibushi Motors Corp v Soler Chrysler-Plymouth Inc, SCOTUS, (1985) 473 US 614 at 636.

[7] Similar to the Model Law, the High Court in Carmichael Rail Network Pty Ltd as Trustee for the Carmichael Rail Network Trust v BBC Chartering Carriers GmbH & Co KG & Anor [2024] HCA 4 (Carmichael) also recognised at [29] the importance of interpreting the international Hague-Visby Rules without apply­ing domestic precedents that ignore the international context: “it is “desirable in the interests of uniformity that their interpretation should not be controlled by domestic precedents of antecedent date, but rather that the language of the rules should be construed on broad principle of general acceptation””.

[8] Model Law art 6.

[9] Model Law art 35.

[10] See CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28 (Chevron) [41] and [65].

[11] Note: Article 34’s application may be influenced by domestic practice, particularly regarding the concept of “public policy” which can vary from country to country. This flexibility does not undermine the Model Law’s goal of promoting international uniformity, as reliance on unique domestic interpretations under Article 34 is anticipated and does not threaten the overall consistency of the Model Law’s applica­tion.

[12] Tesseract [157].

[13] Tesseract [19].

[14] Citing Dobbs v National Bank of Australasia Ltd (1935) 53 CLR and Associated Electric and Gas Insurance Services Ltd v European Reinsurance Co of Zurich [2003] 1 WLR 1041 [9].

[15] Chevron [15] and [17]; Tesseract [56], [87], [147] and [216].

[16] Other examples of party autonomy include the ability of the parties under the Model Law to choose the substantive law of dispute, the arbitral procedure and the curial law that governs their dispute: see Tesseract [28] and [158].

[17] International Arbitration Act 1974 (Cth) s 2D.

[18] International Arbitration Act 1974 (Cth) s 39(2).