Ciarb Australia Resources Hub
ISSN 2652-113X (Online) Volume 1 Issue 1
As part of our commitment to global scholarship and providing practical guidance to our members and all our stakeholders including parties seeking to resolve disputes, we have established the Resources Hub.
Here you will find the latest news in regulatory reform, legislation, case law and items of interest from Australia and around the world, to inform and support your practice.
We extend an invitation to both members and non-members to contribute to this platform, offering a valuable opportunity to share your expertise and insights on a broad scale.
All prospective contributions should be in accordance with the guidelines set out in our Submission Guidelines.
Editorial Review Board: Geoff Farnsworth, Angelina Gomez and Kristian Maley
Managing Editor: Gianna Totaro
Editorial Committee: William Hettrick (Chair), Cari-Dee Le, Jemima Roe and Paivi Adeniyi
Domestic Arbitration
Australia has a bifurcated legislative regime regulating arbitration, with a Federal statute governing international arbitration (and the enforcement of foreign awards) and a separate set of uniform State and Territory statutes governing domestic arbitration. Underlying both is the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), thus providing for a harmonised approach to the regulation of arbitration in Australia. The first revised uniform domestic arbitration legislation was passed in 2010 in New South Wales and all other Australian States and Territories have since followed suit. Links to the domestic legislation can be found here.
International Arbitration
In Australia, the International Arbitration Act 1974 (Cth) (IAA) governs international arbitral proceedings in Australia, and the enforcement of foreign arbitral awards in Australian courts. The IAA incorporates the UNCITRAL Model Law on International Commercial Arbitration (the Model Law) and the New York and ICSID Conventions into Australian law. Links to these materials can be found here.
Adjudication is the process of fast-track construction dispute resolution provided for by the Security of Payment legislation of the Australian States and Territories. Although in varying degrees the State and Territory laws differ in form and substance, the key themes of efficiency, informality and fairness are shared. Adjudication is now one of the fastest growing ADR discplines, and is an area in which many arbitration practitioners are active.
Expert determination is a process whereby parties agree to refer one or more issues or disputes to an expert for determination. It can be binding or non-binding and final or subject to rights of appeal or review. It is not a reference out from Court nor is it arbitration. The adoption of expert determination is a consensual process by which the parties agree to take defined steps in resolving disputes. While the rules and guidelines for an expert determination may vary, what expert determinations have in common is that they provide a contractual process by which a dispute or disputes may be resolved.
Mediation is an informal process aimed at assisting parties to a dispute to negotiate a settlement. Mediation allows parties to discuss their differences in private with the assistance of a neutral third party. The mediator’s first task is to help each party understand the other party’s view of the matter in dispute, and the second task is to help the parties make an objective assessment of the whole situation in order to reach a settlement. As part of the process, the mediator speaks confidentially to each party, arranges and chairs discussions and acts as an intermediary between the parties. All discussions which take place during mediation are without prejudice. The fundamental difference between mediation and arbitration (and litigation) is that the outcome of mediation is consensus-oriented.