Arbitration through the ages: Where we have come from and where we presently stand

1. Russell Thirgood
Partner
rthirgood@mccullough.com.au
Kon Gres 2015
Arbitration through the Ages:
Past to Present
Copyright ©

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Context
■ Commercial
□ parties’ agreement needed
□ private
□ confidential
□ flexible
□ choice of resolver
□ user pays and designs
□ combination with other forms of ADR
■ Arbitration
□ fair process
□ legal context
□ final outcome
□ supported by legislation

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History
■ Arbitration through the Ages
□ the Greeks and Romans
□ Middle Ages
□ Medieval England
– law merchants
– Lex Mercatoria
– Statute of the Staple
– Court of Admiralty
■ The common law
□ Sir Edward Coke in Vynior’s Case
□ Kill v Hollister 1746
□ Ward v Periam; Nichols v Roe

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History
■ The common law
□ Scott v Avery
– Lord Campbell – ‛condition precedent’
– High Court in Anderson v Mitchell
■ Arbitration in Australia
□ Indigenous Australia – tribal elders
□ colonisation
□ Arbitration Act 1867 (NSW) – wide court powers
□ Arbitration Act 1902 (NSW) – case stated
□ Uniform Acts 1984-1990

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History
■ Arbitration in Australia
□ Reform process
– harmonisation (model law)
– attract investment
– other countries
□ revised Commercial Arbitration Acts

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Key features of revised Acts
■ Section 1AC - Paramount Object
□ fair and final resolution
□ commercial disputes
□ impartial arbitral tribunals
□ without unnecessary delays or expense
■ Section 5 – limited court intervention
■ Section 7 – arbitration agreement
■ Section 8 – stays (mandatory and discretionary)
□ null and void
□ incapable of being performed

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Key features of revised Acts
■ Section 21 – commencing arbitration
■ Section 10 – appointment of arbitrators
■ Section 12(3) – challenging an arbitrator
■ Conduct of Arbitration
□ section 19 – process
□ section 18 – ‛reasonable opportunity’
□ section 24 – evidence
□ section 24A – representation
□ section 24B – parties’ obligation
□ section 26 – experts

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Key features of revised Acts
■ Section 31 – award
■ Section 34 – setting aside
□ party under some incapacity or arbitration agreement not valid
□ not given proper notice of the appointment of an arbitral tribunal or was unable to
present their case
□ award deals with a dispute not contemplated by the terms of the submission to
arbitration
□ the composition of the arbitral tribunal was not in accordance with the arbitration
agreement
□ the subject matter of the dispute is not capable of settlement by arbitration
□ the award conflicts with public policy

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Key features of revised Acts
■ Section 34A – appeals
■ Section 35 – recognition and enforcement

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Section 19 – Process – crux issue
■ Importance of process
■ Black Cap v White Cap – agendas
■ Party autonomy – misplaced reverence
■ Safeguards
□ section 18 – reasonable opportunity
□ 6 Convention grounds
■ Paramount Object – section 1AC
■ Parties’ obligation – section 24B
■ Government as enablers v service providers

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New Rules
■ Time Limits
■ Monetary Caps
■ Process Restrictions
□ discovery
□ hearings

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Lessons for Parties
■ Set costs budget
■ Set time budget – reach end point
■ Parallel negotiations and mediations

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Lessons for Lawyers
■ Be brave – run best points only
■ Know your case from Day 1

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Lessons for Arbitrators
■ Use protection of Act, Rules and Institute
■ Set the hearing down early
■ Importance of preliminary conference to design process

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Lessons for Institute
■ Monitor compliance with Rules
■ Referrals/Nominations
■ Active engagement
■ Training and CPD

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Contact
Russell Thirgood
Partner
T +61 7 3233 8853
E rthirgood@mccullough.com.au
Disclaimer: This presentation covers legal and technical issues in a general way. It is not designed to express opinions on
specific cases. This presentation is intended for information purposes only and should not be regarded as legal advice. Further
advice should be obtained before taking action on any issue dealt with in this presentation.