The Commercial Arbitration Act 2010 (the Act) received the assent of the New South Wales (NSW) Parliament on 28 June 2010, after the Standing Committee of Attorneys General agreed to update the uniform legislation. No commencement date has been proclaimed as yet.
The Act is the forerunner to establishing a new procedural framework for the uniform conduct of domestic commercial arbitration throughout Australia. The paramount objective, as stated in the Act, is to facilitate the fair, quick, cost effective and final resolution of disputes by arbitration by allowing the parties greater procedural control and further restricting the basis for court intervention and appeals of arbitral awards.
The Act is based on and supplements the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. Objectives of the proposed uniform legislation include:
The Act will apply to domestic commercial arbitrations constituted by an arbitration agreement.
There are a number of opt-in or opt-out provisions, and where agreement cannot be reached, the Act provides certain default provisions. For example:
A significant change concerns the extent to which recourse against arbitral awards may be available. Recourse by court intervention is restricted to:
Leave to appeal on a question of law must satisfy the following criteria:
Showing "manifest error" on the face of the award is no longer a requirement. The right to apply to a court to set aside an award to address serious irregularity has also been done away with.
If parties have not agreed to preserve appeal rights before the commencement of the arbitral proceedings, a party may suffer hardship and prejudice if unable to put right a serious irregularity which materially influences the consequences of an award.
Other significant changes to the current domestic arbitration regime include:
The Act supplements the UNCITRAL Model Law with regard to awarding costs and interest, which are addressed in a manner that is consistent with counterpart provisions in the International Arbitration Act 1974 (Cth).
The range of procedural and jurisdictional matters which the Act leaves to be agreed by the parties warrants a careful review of arbitration clauses used in commercial agreements.
Be the first to receive the latest articles, news and publications.
Treasury has released an exposure draft of its CRFD legislation for public comment. This is the next step towards introducing mandatory and standardised CRFD for medium and large listed and...
This short Q&A explains what is in the 12 January 2024 exposure draft legislation.
A recent Supreme Court decision in New South Wales provides timely guidance on how a Court will approach whether a person has unreasonably withheld consent to assignment and how long proceedings...