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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Commercial Arbitration Bill 2010
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The paramount object of this Bill is to facilitate the fair and final resolution of
commercial disputes by impartial tribunals without unnecessary delay or expense.
The Bill encourages the use of arbitration as a means of resolving domestic
commercial disputes and harmonises the procedures for resolution of such disputes
with those applicable to the resolution of international commercial disputes under the
International Arbitration Act 1974 of the Commonwealth (the Commonwealth Act).
The Bill facilitates the use of arbitration agreements to manage domestic commercial
disputes by adopting the provisions of the United Nations Commission on
International Trade Law (UNCITRAL) Model Law on International Commercial
Arbitration (the Model Law), taking into account the Commonwealth Act and with
appropriate modifications for domestic commercial arbitration. The Bill also
contains a number of additional provisions supporting the arbitration process and
some optional provisions which may be used by the parties to an arbitration
agreement should a dispute arise between them. These include provisions relating to
assistance from the Supreme Court (or another court nominated by the parties), the
consolidation of arbitral proceedings, the disclosure of confidential information and
the awarding of interest and costs. The Bill also provides for the issue of subpoenas,
b2009-102-81.d25
Commercial Arbitration Bill 2010
Explanatory note
and the recognition and enforcement of awards with respect to domestic commercial
arbitrations.
In addition, the Bill:
(a) repeals the Commercial Arbitration Act 1984, and
(b) enacts provisions of a savings and transitional nature and makes consequential
amendments to other Acts.
The places where the Bill and the Model Law differ (in other than minor technical
respects) are identified in the Bill by notes. The Bill reflects the numbering of the
Model Law and, to ensure consistency with the numbering in it, contains gaps in
numbering and use of alphabetical numbering.
Outline of provisions
Part 1A Preliminary
Clause 1A sets out the name (also called the short title) of the proposed Act.
Clause 1B provides for the commencement of the proposed Act on a day or days to
be appointed by proclamation.
Clause 1C states that the paramount object of the proposed Act is to facilitate the fair
and final resolution of commercial disputes by impartial arbitral tribunals without
unnecessary delay or expense.
Part 1 General provisions
Clause 1 applies the proposed Act to domestic commercial arbitrations. An
arbitration is a domestic arbitration if the parties to an arbitration agreement have, at
the time of the conclusion of that agreement, their places of business in Australia and
have (whether in the arbitration agreement or in any other document in writing)
agreed that any dispute that has arisen or may arise between them is to be settled by
arbitration. It is not a domestic arbitration if it is an arbitration to which the Model
aw (as given effect by the Commonwealth Act) applies as that Act covers the field
with respect to international commercial arbitrations. Clause 1 (5) also makes it clear
that the proposed Act is not intended to affect any other Act that provides that certain
disputes may not be submitted to arbitration or may only be submitted according to
provisions other than those of the proposed Act.
Clause 2 defines certain words and expressions used in the proposed Act. In
particular, it defines confidential information, disclose, Model Law and party. The
clause also contains provisions for interpreting referential phrases in the proposed
Act, including provisions relating to the meaning of a reference to the fact that the
parties have agreed and that a reference to leaving the parties free to determine an
issue includes the right of the parties to authorise a third party (including an
institution) to determine the issue.
Explanatory note page 2
Commercial Arbitration Bill 2010
Explanatory note
Clause 2A makes it clear that in interpreting the proposed Act regard should be had
to promoting uniformity between the application of the proposed Act to domestic
commercial arbitrations and the application of the Model Law (as given effect by the
Commonwealth Act) to international commercial arbitrations.
Clause 3 deems written communications to have been received by a party in
specified circumstances.
Clause 4 waives the right of a party to object to non-compliance with a provision of
the proposed Act or of an arbitration agreement if the party proceeds with arbitration
but fails to object to that non-compliance either without delay or within any
time-limit.
Clause 5 makes it clear that a court is not to intervene in matters governed by the
proposed Act, except as provided by the Act.
Clause 6 specifies the functions of arbitration assistance and supervision to be
performed by the Supreme Court, or by the District Court or Local Court if the parties
so provide in the arbitration agreement, under the proposed Act.
Part 2 Arbitration agreement
Clause 7 defines an arbitration agreement as an agreement by the parties to submit
to arbitration all or certain disputes which have arisen or which may arise between
them in respect of a defined legal relationship, whether contractual or not. An
arbitration agreement must be "in writing". The proposed section makes it clear that
"in writing" has an expanded meaning. An agreement may be concluded orally, by
conduct or other means, provided that its content is recorded in some form, including
electronic communication. An agreement will also be in writing if it is contained "in
an exchange of statements of claim and defence in which the existence of the
agreement is alleged by one party and not denied by the other".
Clause 8 requires a court before which an action is brought in a matter that is the
subject of an arbitration agreement to refer the matter to arbitration if a party so
requests in the circumstances specified in the proposed section. It also enables an
arbitration to be commenced or continued while the issue is pending before the court.
Clause 9 enables a party to obtain an interim measure of protection from a court,
before or during arbitral proceedings.
Part 3 Composition of arbitral tribunal
Clause 10 enables the parties to determine the number of arbitrators and specifies
that, in the absence of agreement between the parties, the default number of
arbitrators is one.
Clause 11 allows the parties to agree on the procedure for appointing arbitrators. It
provides a default procedure with ultimate recourse to the Supreme Court (or another
court agreed by the parties as referred to in proposed section 6) if agreement cannot
be reached or the agreed procedure is not followed.
Explanatory note page 3
Commercial Arbitration Bill 2010
Explanatory note
Clause 12 sets out the grounds on which the appointment of an arbitrator may be
challenged. It obliges proposed arbitrators to disclose any circumstances likely to
give rise to justifiable doubts as to their impartiality or independence. This obligation
starts when a person is approached to be an arbitrator and continues throughout the
person's appointment as an arbitrator. Clause 12 (5) and (6) provide that the test for
whether there are justifiable doubts as to the impartiality or independence of an
arbitrator is whether there is a real danger of bias. This is based on the test for bias
applied by the House of Lords in R v Gough [1993] AC 646.
Clause 13 provides that the parties are free to determine the procedure for
challenging an arbitrator and provides a default procedure for challenging the
appointment or continued appointment of an arbitrator in the absence of agreement
for such a challenge. It also provides that if a challenge fails, a party may have
recourse to a court to determine the matter.
Clause 14 provides for the termination of the mandate of an arbitrator in certain
circumstances.
Clause 15 requires the appointment of a substitute arbitrator according to the
appointment procedure and any other eligibility requirements that were applicable to
the arbitrator being replaced.
Part 4 Jurisdiction of arbitral tribunal
Clause 16 makes it clear that an arbitral tribunal is competent to make a
determination as to whether or not it has jurisdiction to arbitrate a commercial
dispute. It also makes it clear that an arbitration agreement may be severed from the
contract in which it is contained (if applicable) so that it may stand independently. It
expressly provides that any determination that the contract is invalid does not mean
that the arbitration clause is invalid. The provision also enables a party to seek a
ruling from the Supreme Court (or another court agreed by the parties as referred to
in proposed section 6) from a determination of the tribunal that it has jurisdiction.
Part 4A Interim measures
Division 1 Interim measures
Clause 17 confers power on an arbitral tribunal to grant interim measures (unless
otherwise agreed by the parties) similar to the ex parte orders that could be obtained
from a court during litigation prior to the final determination of a dispute for purposes
such as maintenance of the status quo and preservation of assets and evidence.
Clause 17A requires a party requesting certain interim measures to satisfy the
arbitral tribunal (to the extent the arbitral tribunal considers appropriate) that if the
measure concerned is not ordered then harm not adequately reparable by an award of
damages is likely to result and that there is a reasonable possibility that the requesting
party will succeed on the merits of the claim.
Explanatory note page 4
Commercial Arbitration Bill 2010
Explanatory note
Division 2 Preliminary orders
Articles 17B and 17C of the Model Law are not adopted by the proposed Act but the
clause numbering is retained to maintain consistency with the numbering of the
Model Law.
Division 3 Provisions applicable to interim measures
Clause 17D enables an arbitral tribunal to modify, suspend or terminate an interim
measure either on the application of any party or, in exceptional circumstances and
having given prior notice, on the tribunal's own initiative.
Clause 17E enables an arbitral tribunal to require a party that requests an interim
measure to provide appropriate security.
Clause 17F enables an arbitral tribunal to require any party to disclose any material
change in the circumstances on the basis of which an interim measure was requested
or granted.
Clause 17G imposes a liability on a party that requests an interim measure for any
costs and damages caused by the measure to any party to the arbitration agreement,
if the tribunal subsequently determines that it should not have granted that interim
measure.
Division 4 Recognition and enforcement of interim measures
Clause 17H provides for the recognition and enforcement of an interim measure
issued under a law of New South Wales, or an interim measure issued under a law of
another State or Territory of Australia, in certain circumstances.
Clause 17I outlines the circumstances in which the recognition or enforcement of an
interim measure may be refused.
Division 5 Court ordered interim measures
Clause 17J makes it clear that the Supreme Court (or another court agreed by the
parties as referred to in proposed section 6) has the same power to issue an interim
measure in arbitration proceedings as it has in relation to proceedings in courts.
Part 5 Conduct of arbitral proceedings
Clause 18 makes it clear that parties must be given a fair hearing.
Clause 19 provides that the parties are free to agree on the procedure to be followed
by the arbitral tribunal and enables the arbitral tribunal to conduct the arbitration in
such manner as it considers appropriate in the absence of such agreement. The clause
specifies the powers conferred on the arbitral tribunal and provides that, by leave of
the Supreme Court (or another court agreed by the parties as referred to in proposed
section 6), an arbitral tribunal's order or direction may be enforced by a judgment
being entered in terms of the order or direction.
Explanatory note page 5
Commercial Arbitration Bill 2010
Explanatory note
Clause 20 provides that the parties are free to agree on the place of arbitration and
enables an arbitral tribunal to determine the place of arbitration in the absence of such
agreement.
Clause 21 provides for arbitral proceedings to commence on the date that a request
for the referral to arbitration is received by the respondent. The clause applies unless
otherwise agreed by the parties.
Clause 22 provides that the parties are free to agree on the language or languages to
be used in arbitral proceedings. Failing such agreement the arbitral tribunal is to
determine the language or languages to be used. The agreement or determination
applies to written statements and any hearing, award, decision or other
communication of the arbitral tribunal unless otherwise agreed by the parties. The
proposed section also enables an arbitral tribunal to make an order for documentary
evidence to be accompanied by an appropriate translation.
Clause 23 sets out requirements with respect to statements of claim and defence. The
clause applies unless otherwise agreed by the parties and is subject to directions of
the arbitral tribunal.
Clause 24 sets out the procedure for the conduct of the arbitral proceedings. Unless
otherwise agreed by the parties, the arbitral tribunal is enabled to decide whether to
hold an oral hearing or to make a decision on the papers and other materials
submitted. The discretion to make a decision on the papers is limited in so far as the
arbitral tribunal must hold an oral hearing if requested by a party, provided that they
have not agreed beforehand that no hearings are to be held. The proposed section
makes it clear that documents sought to be relied upon must be communicated to
another party to the arbitration.
Clause 24A enables a party to appear in person or be represented by any person of
their choice in oral hearings of the tribunal.
Clause 24B imposes a duty on the parties to do all things necessary for the proper
and expeditious conduct of arbitral proceedings.
Clause 25 states the powers of an arbitral tribunal in the event of a party's failure to
communicate a statement of claim or a statement of defence or to appear at a hearing
or produce documentary evidence. The clause applies unless otherwise agreed by the
parties.
Clause 26 empowers an arbitral tribunal, unless otherwise agreed by the parties, to
appoint experts to report on specific issues determined by the tribunal, and if
necessary to appear at a hearing for the purpose of examination. It also empowers the
arbitral tribunal, unless otherwise agreed by the parties, to require a party to give
information or to provide access in order to inspect documents, goods or other
property.
Clause 27 enables a request to be made to the Supreme Court (or another court
agreed by the parties as referred to in proposed section 6) by an arbitral tribunal or a
party with the approval of an arbitral tribunal, for assistance in taking evidence.
Explanatory note page 6
Commercial Arbitration Bill 2010
Explanatory note
Clause 27A enables the Supreme Court (or another court agreed by the parties as
referred to in proposed section 6) to issue a subpoena requiring a person to attend the
arbitral proceedings for examination, or to produce documents, on the application of
a party made with the consent of the arbitral tribunal. The clause is based on
section 17 of the Commercial Arbitration Act 1984.
Clause 27B provides that, unless otherwise agreed by the parties, on application to
the Supreme Court (or another court agreed by the parties as referred to in proposed
section 6) by a party or the arbitral tribunal the court may order a person in default to
comply with a subpoena or a requirement of the arbitral tribunal and may make
consequential orders as to the transmission of evidence or documents to the arbitral
tribunal. The clause is based on section 18 of the Commercial Arbitration Act 1984.
Clause 27C enables the consolidation of certain arbitral proceedings. The clause
applies unless otherwise agreed by the parties. The clause is based on section 26 of
the Commercial Arbitration Act 1984.
Clause 27D provides that an arbitrator can act as mediator in the proceedings if the
parties so agree. It also outlines the circumstances in which mediation can be
terminated. This includes where any party withdraws their consent to the mediation.
It also prohibits an arbitrator who has acted in mediation proceedings that have been
terminated from conducting subsequent arbitration, unless the written consent of all
the parties to the arbitration has been obtained.
Clause 27E provides for the protection of confidential information. Confidential
information is defined in proposed section 2 as information that relates to arbitral
proceedings or to an award made in those proceedings and covers documents
associated with the proceedings such as statements of claim and pleadings, evidence
supplied to the arbitral tribunal, transcripts of evidence, submissions and rulings and
awards of the arbitral tribunal. The clause applies unless otherwise agreed by the
parties. It prohibits the disclosure of confidential information by either the parties to
the arbitration or the tribunal, except as allowed by proposed sections 27F-27I.
Disclose is defined in proposed section 2 to include publishing or communicating or
otherwise supplying confidential information. The provisions are adapted (with
modifications) from similar provisions of the Arbitration Act 1996 of New Zealand.
Clause 27F sets out the general circumstances in which confidential information can
be disclosed by a party to the proceedings or the arbitral tribunal. These
circumstances include where all the parties have consented, it is necessary for the
establishment or protection of the legal rights of a party, disclosure is required by
subpoena or a court order or where disclosure is authorised or required by another
relevant law (including a law of the Commonwealth or of another State or Territory)
or for the purposes of enforcing an arbitral award.
Clause 27G allows an arbitral tribunal to authorise the disclosure of confidential
information in circumstances other than those mentioned in proposed section 27F at
the request of one of the parties and only once the other parties have been heard.
Clause 27H outlines the circumstances in which the Supreme Court (or another court
agreed by the parties as referred to in proposed section 6) may make an order
prohibiting the disclosure of confidential information on the application of a party
Explanatory note page 7
Commercial Arbitration Bill 2010
Explanatory note
and after giving all parties an opportunity to be heard. It requires consideration of
whether or not the public interest would be served by disclosure or non-disclosure
and whether disclosure is more than reasonable for the purpose. The proposed
section deals with the situation where consent of all the parties has not been obtained
under proposed section 27F (2) or where the arbitral tribunal refuses to make an order
under proposed section 27G.
Clause 27I outlines the circumstances in which the Supreme Court (or another court
agreed by the parties as referred to in proposed section 6) may make an order
allowing the disclosure of confidential information and sets out the matters the court
must take into consideration before making an order.
Clause 27J enables a party to make an application to the Supreme Court (or another
court agreed by the parties as referred to in proposed section 6), and confers
jurisdiction on the court, to determine a question of law that arises in the course of
arbitration, unless otherwise agreed.
Part 6 Making of award and termination of proceedings
Clause 28 enables the parties to choose the substantive law to be applied to the
particular facts of the matter in dispute (as opposed to determining the arbitral law
under which the dispute is resolved). It makes it clear that an arbitral tribunal is to
make a determination in accordance with the terms of the contract, taking into
account the usages of the trade applicable to it.
Clause 29 specifies that a majority of arbitral tribunal members (if there is more than
one arbitrator) is necessary to constitute a decision of the tribunal unless otherwise
agreed by the parties.
Clause 30 provides for the recording of a settlement between the parties in the form
of an award.
Clause 31 prescribes the form and content of an award.
Clause 32 describes the circumstances in which arbitral proceedings are terminated.
Clause 33 enables the correction or interpretation of a provision of the award, or the
making of an additional award. It makes it clear that any interpretation of the tribunal
forms part of the award.
Clause 33A enables an arbitrator to make an order for specific performance of a
contract in circumstances where the Supreme Court would have power to do so,
unless otherwise agreed by the parties.
Clause 33B allows the arbitral tribunal (unless otherwise agreed by the parties) to
determine costs (including the fees and expenses of the arbitrator or arbitrators) at its
discretion and to direct that they be limited to a specified amount. A direction
limiting the amount must be given sufficiently in advance for the parties to take it into
account in managing their own costs.
Clause 33C applies Division 11 (Costs assessment) of Part 3.2 (Costs disclosure and
assessment) of the Legal Profession Act 2004 to the assessment of costs by a court
exercising jurisdiction under proposed section 33B.
Explanatory note page 8
Commercial Arbitration Bill 2010
Explanatory note
Clause 33D enables the Supreme Court (or another court agreed by the parties as
referred to in proposed section 6), to make orders with respect to the costs of an
abortive arbitration. It is based on section 36 of the Commercial Arbitration Act
1984.
Clause 33E provides for the imposition (unless otherwise agreed by the parties) by
the arbitral tribunal of interest in an award for payment of money for the period
before the making of the award.
Clause 33F provides for the imposition (unless otherwise agreed by the parties) by
the arbitral tribunal of interest on the debt under an award.
Part 7 Recourse against award
Clause 34 outlines the circumstances in which an application to the Supreme Court
(or another court agreed by the parties as referred to in proposed section 6) may be
made for the setting aside of an award, or an appeal against an award, and the criteria
to be applied. In particular it requires the court to find either that the subject matter
of the dispute is not capable of settlement by arbitration under a law of New South
Wales, or that the award is in conflict with public policy. Section 19 of the
Commonwealth Act declares that, for the purposes of the application of the Model
aw by that Act, an award is in conflict with public policy if the making of the award
was induced or affected by fraud or corruption or a breach of the rules of natural
justice occurred in connection with the making of the award.
Clause 34A enables an appeal to the Supreme Court (or another court agreed by the
parties as referred to in proposed section 6) on a question of law, if the parties have
agreed prior to the commencement of arbitration that such appeals may be made and
the court grants leave.
Part 8 Recognition and enforcement of awards
Clauses 35 and 36 establish a framework for the recognition and enforcement of
arbitral awards.
Part 9 Miscellaneous
Clause 37 outlines the effect that the death of a party has on an arbitration agreement.
It is based on section 52 of the Commercial Arbitration Act 1984.
Clause 38 makes provision for relief by way of interpleader. It is based on section 54
of the Commercial Arbitration Act 1984.
Clause 39 confers immunity on an arbitrator acting in good faith.
Clause 40 provides that the proposed Act binds the Crown.
Clause 41 enables rules of court to make further provision for giving effect to the
proposed Act.
Clause 42 repeals the Commercial Arbitration Act 1984.
Clause 43 enables the making of regulations.
Explanatory note page 9
Commercial Arbitration Bill 2010
Explanatory note
Schedule 1 Savings, transitional and other
provisions
Schedule 1 enables the making of regulations of a savings and transitional nature,
and contains savings and transitional provisions, consequent on the enactment of the
proposed Act.
Schedule 2 Amendment of Acts and regulations
Schedule 2 contains amendments to various Acts and regulations consequent on the
enactment of the proposed Act.
Explanatory note page 10
First print
New South Wales
Commercial Arbitration Bill 2010
Contents
Page
Part 1A Preliminary
1A Name of Act 2
1B Commencement 2
1C Paramount object of Act 2
Part 1 General provisions
1 Scope of application 3
2 Definitions and rules of interpretation 4
2A International origin and general principles 5
3 Receipt of written communications 6
4 Waiver of right to object 6
5 Extent of court intervention 6
6 Court for certain functions of arbitration assistance and
supervision 7
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Commercial Arbitration Bill 2010
Contents
Page
Part 2 Arbitration agreement
7 Definition and form of arbitration agreement 8
8 Arbitration agreement and substantive claim before court 8
9 Arbitration agreement and interim measures by court 9
Part 3 Composition of arbitral tribunal
10 Number of arbitrators 10
11 Appointment of arbitrators 10
12 Grounds for challenge 11
13 Challenge procedure 12
14 Failure or impossibility to act 12
15 Appointment of substitute arbitrator 13
Part 4 Jurisdiction of arbitral tribunal
16 Competence of arbitral tribunal to rule on its jurisdiction 14
Part 4A Interim measures
Division 1 Interim measures
17 Power of arbitral tribunal to order interim measures 15
17A Conditions for granting interim measures 16
Division 2 Preliminary orders
17B 16
17C 16
Division 3 Provisions applicable to interim measures
17D Modification, suspension, termination 16
17E Provision of security 16
17F Disclosure 17
17G Costs and damages 17
Division 4 Recognition and enforcement of interim
measures
17H Recognition and enforcement 17
17I Grounds for refusing recognition or enforcement 18
Division 5 Court-ordered interim measures
17J Court-ordered interim measures 18
Part 5 Conduct of arbitral proceedings
18 Equal treatment of parties 20
19 Determination of rules of procedure 20
Contents page 2
Commercial Arbitration Bill 2010
Contents
Page
20 Place of arbitration 20
21 Commencement of arbitral proceedings 21
22 Language 21
23 Statements of claim and defence 21
24 Hearings and written proceedings 22
24A Representation 22
24B General duties of parties 22
25 Default of a party 23
26 Expert appointed by arbitral tribunal 24
27 Court assistance in taking evidence 24
27A Parties may obtain subpoenas 24
27B Refusal or failure to attend before arbitral tribunal or to
produce document 25
27C Consolidation of arbitral proceedings 26
27D Power of arbitrator to act as mediator, conciliator or other
non-arbitral intermediary 27
27E Disclosure of confidential information 28
27F Circumstances in which confidential information may be
disclosed 29
27G Arbitral tribunal may allow disclosure of confidential
information in certain circumstances 30
27H The Court may prohibit disclosure of confidential
information in certain circumstances 30
27I The Court may allow disclosure of confidential
information in certain circumstances 31
27J Determination of preliminary point of law by the Court 31
Part 6 Making of award and termination of proceedings
28 Rules applicable to substance of dispute 33
29 Decision-making by panel of arbitrators 33
30 Settlement 33
31 Form and contents of award 34
32 Termination of proceedings 34
33 Correction and interpretation of award; additional award 34
33A Specific performance 35
33B Costs 35
33C Application of Legal Profession Act 2004 36
33D Costs of abortive arbitration 36
33E Interest up to making of award 37
33F Interest on debt under award 37
Part 7 Recourse against award
34 Application for setting aside as exclusive recourse against
arbitral award 38
34A Appeals against awards 39
Contents page 3
Commercial Arbitration Bill 2010
Contents
Page
Part 8 Recognition and enforcement of awards
35 Recognition and enforcement 41
36 Grounds for refusing recognition or enforcement 41
Part 9 Miscellaneous
37 Death of party 43
38 Interpleader 43
39 Immunity 43
40 Act to bind Crown 43
41 Court rules 44
42 Repeal 44
43 Regulations 44
Schedule 1 Savings, transitional and other provisions 45
Schedule 2 Amendment of Acts and regulations 46
Contents page 4
New South Wales
Commercial Arbitration Bill 2010
No , 2010
A Bill for
An Act relating to the conduct of commercial arbitrations; to repeal the Commercial
Arbitration Act 1984; and for other purposes.
Clause 1A Commercial Arbitration Bill 2010
Part 1A Preliminary
The Legislature of New South Wales enacts: 1
Part 1A Preliminary 2
Note. Sections of this Act that contain a reference to the "Model Law" in the heading are 3
substantially the same as the provisions of the UNCITRAL Model Law on International 4
Commercial Arbitration (as adopted by the United Nations Commission on International Trade 5
aw on 21 June 1985 with amendments as adopted by that Commission in 2006) so as to be 6
as uniform as possible with the UNCITRAL Model Law. Some changes have been made to 7
those provisions of the Act based on the UNCITRAL Model Law to amend or supplement the 8
provisions in their application to domestic arbitrations in New South Wales or to accommodate 9
modern drafting styles and conventions (for example, provisions are drafted in gender neutral 10
terms and archaisms are replaced with modern alternatives). Notes draw attention to 11
substantive changes. The original numbering of the "articles" of the UNCITRAL Model Law has 12
been retained but converted to references to "sections" and articles containing more than one 13
sentence have been re-formatted into subsections. There are a number of additional 14
provisions to those based on the UNCITRAL Model Law. 15
1A Name of Act 16
This Act is the Commercial Arbitration Act 2010. 17
1B Commencement 18
This Act commences on a day or days to be appointed by proclamation. 19
1C Paramount object of Act 20
(1) The paramount object of this Act is to facilitate the fair and final 21
resolution of commercial disputes by impartial arbitral tribunals 22
without unnecessary delay or expense. 23
(2) This Act aims to achieve its paramount object by: 24
(a) enabling parties to agree about how their commercial disputes are 25
to be resolved (subject to subsection (3) and such safeguards as 26
are necessary in the public interest), and 27
(b) providing arbitration procedures that enable commercial disputes 28
to be resolved in a cost effective manner, informally and quickly. 29
(3) This Act must be interpreted, and the functions of an arbitral tribunal 30
must be exercised, so that (as far as practicable) the paramount object of 31
this Act is achieved. 32
(4) Subsection (3) does not affect the application of section 33 of the 33
Interpretation Act 1987 for the purposes of interpreting this Act. 34
Page 2
Commercial Arbitration Bill 2010 Clause 1
General provisions Part 1
Part 1 General provisions 1
1 Scope of application (cf Model Law Art 1) 2
(1) This Act applies to domestic commercial arbitrations. 3
Note. The International Arbitration Act 1974 of the Commonwealth covers 4
international commercial arbitrations and the enforcement of foreign arbitral 5
awards. 6
(2) The provisions of this Act, except sections 9, 17H, 17I, 17J, 35 and 36, 7
apply only if the place of arbitration is in New South Wales. 8
(3) An arbitration is domestic if: 9
(a) the parties to an arbitration agreement have, at the time of the 10
conclusion of that agreement, their places of business in 11
Australia, and 12
(b) the parties have (whether in the arbitration agreement or in any 13
other document in writing) agreed that any dispute that has arisen 14
or may arise between them is to be settled by arbitration, and 15
(c) it is not an arbitration to which the Model Law (as given effect by 16
the International Arbitration Act 1974 of the Commonwealth) 17
applies. 18
(4) For the purposes of subsection (3): 19
(a) if a party has more than one place of business, the place of 20
business is that which has the closest relationship to the 21
arbitration agreement, and 22
(b) if a party does not have a place of business, reference is to be 23
made to the party's habitual residence. 24
(5) This Act does not affect any other Act by virtue of which certain 25
disputes may not be submitted to arbitration or may be submitted to 26
arbitration only according to provisions other than those of this Act. 27
(6) Subject to subsection (5), this Act applies to arbitrations provided for in 28
any other Act as if: 29
(a) the other Act were an arbitration agreement, and 30
(b) the arbitration were pursuant to an arbitration agreement, and 31
(c) the parties to the dispute which, by virtue of the other Act, is 32
referred to arbitration were the parties to the arbitration 33
agreement, 34
except in so far as the other Act otherwise indicates or requires. 35
Model Law note. The term "commercial" should be given a wide interpretation 36
so as to cover matters arising from all relationships of a commercial nature, 37
whether contractual or not. Relationships of a commercial nature include, but 38
are not limited to, the following transactions: any trade transaction for the supply 39
Page 3
Clause 2 Commercial Arbitration Bill 2010
Part 1 General provisions
or exchange of goods or services; distribution agreement; commercial 1
representation or agency; factoring; leasing; construction of works; consulting; 2
engineering; licensing; investment; financing; banking; insurance; exploitation 3
agreement or concession; joint venture and other forms of industrial or business 4
co-operation; carriage of goods or passengers by air, sea, rail or road. 5
Note. This section differs from the Model Law to the extent necessary to apply 6
Art 1 as incorporated in this Act to domestic commercial arbitrations. Section 40 7
contains provisions that also relate to the application of this Act. 8
2 Definitions and rules of interpretation (cf Model Law Art 2) 9
(1) In this Act: 10
arbitral tribunal means a sole arbitrator or a panel of arbitrators. 11
arbitration means any domestic commercial arbitration whether or not 12
administered by a permanent arbitral institution. 13
arbitration agreement--see section 7. 14
confidential information, in relation to arbitral proceedings, means 15
information that relates to the arbitral proceedings or to an award made 16
in those proceedings and includes the following: 17
(a) the statement of claim, statement of defence and all other 18
pleadings, submissions, statements or other information supplied 19
to the arbitral tribunal by a party, 20
(b) any information supplied by a party to another party in 21
compliance with a direction of the arbitral tribunal, 22
(c) any evidence (whether documentary or otherwise) supplied to the 23
arbitral tribunal, 24
(d) any notes made by the arbitral tribunal of oral evidence or 25
submissions given before the arbitral tribunal, 26
(e) any transcript of oral evidence or submissions given before the 27
arbitral tribunal, 28
(f) any rulings of the arbitral tribunal, 29
(g) any award of the arbitral tribunal. 30
disclose, in relation to confidential information, includes publishing or 31
communicating or otherwise supplying the confidential information. 32
domestic commercial arbitration--see section 1. 33
exercise a function includes perform a duty. 34
function includes a power, authority or duty. 35
interim measure--see section 17. 36
Model Law means the UNCITRAL Model Law on International 37
Commercial Arbitration (as adopted by the United Nations Commission 38
on International Trade Law on 21 June 1985, and as amended by the 39
Page 4
Commercial Arbitration Bill 2010 Clause 2A
General provisions Part 1
United Nations Commission on International Trade Law on 1
7 July 2006). 2
party means a party to an arbitration agreement and includes: 3
(a) any person claiming through or under a party to the arbitration 4
agreement, and 5
(b) in any case where an arbitration does not involve all of the parties 6
to the arbitration agreement, those parties to the arbitration 7
agreement who are parties to the arbitration. 8
the Court means, subject to section 6 (2), the Supreme Court. 9
Note. The definitions of arbitration agreement, confidential information, 10
disclose, domestic commercial arbitration, exercise, function, interim 11
measure, Model Law, party and the Court are not included in the Model Law. 12
(2) Where a provision of this Act, except section 28, leaves the parties free 13
to determine a certain issue, such freedom includes the right of the 14
parties to authorise a third party, including an institution, to make that 15
determination. 16
(3) Where a provision of this Act refers to the fact that the parties have 17
agreed or that they may agree or in any other way refers to an agreement 18
of the parties, such agreement includes any arbitration rules referred to 19
in that agreement. 20
(4) Where a provision of this Act, other than sections 25 (1) (a) and 21
32 (2) (a), refers to a claim, it also applies to a counter-claim, and where 22
it refers to a defence, it also applies to a defence to such counter-claim. 23
(5) Notes (other than the Model Law note to section 1) included in this Act 24
do not form part of this Act. 25
Note. This provision is not included in the Model Law. 26
2A International origin and general principles (cf Model Law Art 2A) 27
(1) Subject to section 1C, in the interpretation of this Act, regard is to be 28
had to the need to promote so far as practicable uniformity between the 29
application of this Act to domestic commercial arbitrations and the 30
application of the provisions of the Model Law (as given effect by the 31
International Arbitration Act 1974 of the Commonwealth) to 32
international commercial arbitrations and the observance of good faith. 33
(2) Note. This section differs from the Model Law. Art 2A (1) has been changed as 34
a consequence of the application of the Act to domestic (instead of international) 35
commercial arbitrations. Art 2A (2) is omitted because it is covered by the 36
provision referred to in section 1C (4). Subsections (3) and (4) reflect section 17 37
of the International Arbitration Act 1974 of the Commonwealth. 38
Page 5
Clause 3 Commercial Arbitration Bill 2010
Part 1 General provisions
(3) Without limiting subsection (1), in interpreting this Act, reference may 1
be made to the documents relating to the Model Law of: 2
(a) the United Nations Commission on International Trade Law, and 3
(b) its working groups for the preparation of the Model Law. 4
(4) Subsection (3) does not affect the application of section 34 (Use of 5
extrinsic material in the interpretation of Acts and statutory rules) of the 6
Interpretation Act 1987 for the purposes of interpreting this Act. 7
3 Receipt of written communications (cf Model Law Art 3) 8
(1) Unless otherwise agreed by the parties: 9
(a) any written communication is taken to be received if: 10
(i) it is delivered to the addressee personally, or 11
(ii) it is delivered at the addressee's place of business, habitual 12
residence or mailing address, or 13
(iii) if none of these can be found after making a reasonable 14
inquiry, it is delivered to the addressee's last-known place 15
of business, habitual residence or mailing address by 16
registered letter or any other means which provides a 17
record of the attempt to deliver it, and 18
(b) the communication is taken to have been received on the day it is 19
so delivered. 20
(2) The provisions of this section do not apply to communications in court 21
proceedings. 22
4 Waiver of right to object (cf Model Law Art 4) 23
A party who knows that any provision of this Act from which the parties 24
may derogate or any requirement under the arbitration agreement has 25
not been complied with and yet proceeds with the arbitration without 26
stating the party's objection to such non-compliance without undue 27
delay or, if a time-limit is provided for stating the party's objection, 28
within such period of time, is taken to have waived the party's right to 29
object. 30
5 Extent of court intervention (cf Model Law Art 5) 31
In matters governed by this Act, no court must intervene except where 32
so provided by this Act. 33
Page 6
Commercial Arbitration Bill 2010 Clause 6
General provisions Part 1
6 Court for certain functions of arbitration assistance and supervision 1
(cf Model Law Art 6) 2
(1) The functions referred to in sections 11 (3) and (4), 13 (4), 14 (2), 16 (9), 3
17H-17J, 19 (6), 27-27B, 27H-27J, 33D, 34 and 34A are, subject to 4
subsection (2), to be performed by the Supreme Court. 5
(2) If: 6
(a) an arbitration agreement provides that the District Court or Local 7
Court is to have jurisdiction under this Act, or 8
(b) the parties to an arbitration agreement have agreed in writing that 9
the District Court or Local Court is to have jurisdiction under this 10
Act and that agreement is in force, 11
the functions are to be performed, in relation to that agreement, by the 12
District Court or Local Court, as the case requires. 13
Note. This section differs from the Model Law to the extent that it relates to 14
functions conferred on the Court with respect to domestic commercial 15
arbitrations that are not referred to in the Model Law. 16
Page 7
Clause 7 Commercial Arbitration Bill 2010
Part 2 Arbitration agreement
Part 2 Arbitration agreement 1
7 Definition and form of arbitration agreement (cf Model Law Art 7) 2
(1) An arbitration agreement is an agreement by the parties to submit to 3
arbitration all or certain disputes which have arisen or which may arise 4
between them in respect of a defined legal relationship, whether 5
contractual or not. 6
(2) An arbitration agreement may be in the form of an arbitration clause in 7
a contract or in the form of a separate agreement. 8
(3) The arbitration agreement must be in writing. 9
(4) An arbitration agreement is in writing if its content is recorded in any 10
form, whether or not the arbitration agreement or contract has been 11
concluded orally, by conduct, or by other means. 12
(5) The requirement that an arbitration agreement be in writing is met by an 13
electronic communication if the information contained in it is accessible 14
so as to be useable for subsequent reference. 15
(6) In this section: 16
data message means information generated, sent, received or stored by 17
electronic, magnetic, optical or similar means, including, but not limited 18
to, electronic data interchange (EDI), electronic mail, telegram, telex or 19
telecopy. 20
electronic communication means any communication that the parties 21
make by means of data messages. 22
(7) Furthermore, an arbitration agreement is in writing if it is contained in 23
an exchange of statements of claim and defence in which the existence 24
of an agreement is alleged by one party and not denied by the other. 25
(8) The reference in a contract to any document containing an arbitration 26
clause constitutes an arbitration agreement in writing, provided that the 27
reference is such as to make that clause part of the contract. 28
Note. This section is substantially the same as Option 1 set out in Art 7 of the 29
Model Law. 30
8 Arbitration agreement and substantive claim before court (cf Model Law 31
Art 8) 32
(1) A court before which an action is brought in a matter which is the 33
subject of an arbitration agreement must, if a party so requests not later 34
than when submitting the party's first statement on the substance of the 35
dispute, refer the parties to arbitration unless it finds that the agreement 36
is null and void, inoperative or incapable of being performed. 37
Page 8
Commercial Arbitration Bill 2010 Clause 9
Arbitration agreement Part 2
(2) Where an action referred to in subsection (1) has been brought, arbitral 1
proceedings may nevertheless be commenced or continued, and an 2
award may be made, while the issue is pending before the court. 3
9 Arbitration agreement and interim measures by court (cf Model Law Art 9) 4
It is not incompatible with an arbitration agreement for a party to 5
request, before or during arbitral proceedings, from a court an interim 6
measure of protection and for a court to grant the measure. 7
Page 9
Clause 10 Commercial Arbitration Bill 2010
Part 3 Composition of arbitral tribunal
Part 3 Composition of arbitral tribunal 1
10 Number of arbitrators (cf Model Law Art 10) 2
(1) The parties are free to determine the number of arbitrators. 3
(2) Failing such determination, the number of arbitrators is to be one. 4
Note. Subsection (2) differs from Art 10 (2) of the Model Law, which provides 5
for 3 arbitrators if the parties do not determine the number of arbitrators. 6
11 Appointment of arbitrators (cf Model Law Art 11) 7
(1) Note. Art 11 (1) of the Model Law (which provides that no person is precluded 8
by nationality from acting as an arbitrator unless otherwise agreed by the 9
parties) has been omitted. 10
(2) The parties are free to agree on a procedure of appointing the arbitrator 11
or arbitrators, subject to the provisions of subsections (4) and (5). 12
(3) Failing such agreement: 13
(a) in an arbitration with 3 arbitrators and 2 parties, each party is to 14
appoint one arbitrator, and the 2 arbitrators so appointed are to 15
appoint the third arbitrator; if a party fails to appoint the arbitrator 16
within 30 days of receipt of a request to do so from the other 17
party, or if the 2 arbitrators fail to agree on the third arbitrator 18
within 30 days of their appointment, the appointment is to be 19
made, on the request of a party, by the Court, and 20
(b) in an arbitration with a sole arbitrator, if the parties are unable to 21
agree on the arbitrator, an arbitrator is to be appointed, on the 22
request of a party, by the Court, and 23
(c) in an arbitration with 2, 4 or more arbitrators or with 3 arbitrators 24
and more than 2 parties the appointment is to be made, at the 25
request of a party, by the Court. 26
(4) Where, under an appointment procedure agreed on by the parties: 27
(a) a party fails to act as required under the procedure, or 28
(b) the parties, or 2 or more arbitrators, are unable to reach an 29
agreement expected of them under the procedure, or 30
(c) a third party, including an institution, fails to perform any 31
function entrusted to it under the procedure, 32
any party may request the Court to take the necessary measure, unless 33
the agreement on the appointment procedure provides other means for 34
securing the appointment. 35
(5) A decision within the limits of the Court's authority on a matter 36
entrusted by subsection (3) or (4) to the Court is final. 37
Page 10
Commercial Arbitration Bill 2010 Clause 12
Composition of arbitral tribunal Part 3
(6) The Court, in appointing an arbitrator, is to have due regard to any 1
qualifications required of the arbitrator by the agreement of the parties 2
and to such considerations as are likely to secure the appointment of an 3
independent and impartial arbitrator. 4
Note. This section (other than subsections (3) (c), (5) and (6)) is substantially 5
the same as Art 11 of the Model Law. Subsection (3) (c) is added to cover the 6
contingency of the parties failing to agree on the procedure to appoint arbitrators 7
in certain circumstances not covered by the Model Law as incorporated in this 8
Act. It is based on clause 11 (6) of Schedule 1 to the Arbitration Act 1996 (NZ). 9
Subsection (5) makes it clear that, although a decision of the Court is generally 10
final, review of a decision of the Court that is not made within the limits of its 11
powers and functions is not precluded. Subsection (6) does not include the 12
requirement in Art 11 (5) of the Model Law that the Court take into account the 13
advisability of appointing an arbitrator of a nationality other than those of the 14
parties in appointing a sole or third arbitrator as this is not relevant in the context 15
of domestic commercial arbitrations. 16
12 Grounds for challenge (cf Model Law Art 12) 17
(1) When a person is approached in connection with the person's possible 18
appointment as an arbitrator, the person must disclose any 19
circumstances likely to give rise to justifiable doubts as to the person's 20
impartiality or independence. 21
(2) An arbitrator, from the time of the arbitrator's appointment and 22
throughout the arbitral proceedings, must without delay disclose any 23
circumstances of the kind referred to in subsection (1) to the parties 24
unless they have already been informed of them by the arbitrator. 25
(3) An arbitrator may be challenged only if circumstances exist that give 26
rise to justifiable doubts as to the arbitrator's impartiality or 27
independence, or if the arbitrator does not possess qualifications agreed 28
to by the parties. 29
(4) A party may challenge an arbitrator appointed by the party, or in whose 30
appointment the party has participated, only for reasons of which the 31
party becomes aware after the appointment has been made. 32
(5) For the purposes of subsection (1), there are justifiable doubts as to the 33
impartiality or independence of a person approached in connection with 34
a possible appointment as arbitrator only if there is a real danger of bias 35
on the part of the person in conducting the arbitration. 36
(6) For the purposes of subsection (3), there are justifiable doubts as to the 37
impartiality or independence of an arbitrator only if there is a real 38
danger of bias on the part of the arbitrator in conducting the arbitration. 39
Note. This section (other than subsections (5) and (6)) is substantially the same 40
as Art 12 of the Model Law. Subsections (5) and (6) provide that the test for 41
whether there are justifiable doubts as to the impartiality or independence of a 42
person or arbitrator is whether there is a real danger of bias. 43
Page 11
Clause 13 Commercial Arbitration Bill 2010
Part 3 Composition of arbitral tribunal
13 Challenge procedure (cf Model Law Art 13) 1
(1) The parties are free to agree on a procedure for challenging an arbitrator, 2
subject to subsection (4). 3
(2) Failing such agreement, a party who intends to challenge an arbitrator 4
must, within 15 days after becoming aware of the constitution of the 5
arbitral tribunal or after becoming aware of any circumstance referred 6
to in section 12 (3), send a written statement of the reasons for the 7
challenge to the arbitral tribunal. 8
(3) Unless the challenged arbitrator withdraws from office or the other 9
party agrees to the challenge, the arbitral tribunal must decide on the 10
challenge. 11
(4) If a challenge under any procedure agreed on by the parties or under the 12
procedure of subsections (2) and (3) is not successful, the challenging 13
party may request, within 30 days after having received notice of the 14
decision rejecting the challenge, the Court to decide on the challenge. 15
(5) A decision of the Court under subsection (4) that is within the limits of 16
the authority of the Court is final. 17
(6) While a request under subsection (4) is pending, the arbitral tribunal, 18
including the challenged arbitrator, may continue the arbitral 19
proceedings and make an award. 20
Note. Section 13 (other than subsection (5)) is substantially the same as Art 13 21
of the Model Law. Subsection (5) makes it clear that, although a decision of the 22
Court is generally final, review of a decision of the Court that is not made within 23
the limits of its powers and functions is not precluded. 24
14 Failure or impossibility to act (cf Model Law Art 14) 25
(1) If an arbitrator becomes in law or in fact unable to perform the 26
arbitrator's functions or for other reasons fails to act without undue 27
delay, the arbitrator's mandate terminates if the arbitrator withdraws 28
from office or if the parties agree on the termination. 29
(2) Otherwise, if a controversy remains concerning any of these grounds, 30
any party may request the Court to decide on the termination of the 31
mandate. 32
(3) A decision of the Court under subsection (2) that is within the limits of 33
the authority of the Court is final. 34
(4) If, under this section or section 13 (3), an arbitrator withdraws from 35
office or a party agrees to the termination of the mandate of an 36
arbitrator, this does not imply acceptance of the validity of any ground 37
referred to in this section or section 12 (3). 38
Note. Section 14 (other than subsection (3)) is substantially the same as Art 14 39
of the Model Law. Subsection (3) makes it clear that, although a decision of the 40
Page 12
Commercial Arbitration Bill 2010 Clause 15
Composition of arbitral tribunal Part 3
Court is generally final, review of a decision of the Court that is not made within 1
the limits of its powers and functions is not precluded. 2
15 Appointment of substitute arbitrator (cf Model Law Art 15) 3
Where the mandate of an arbitrator terminates under section 13 or 14 or 4
because of the arbitrator's withdrawal from office for any other reason 5
or because of the revocation of the arbitrator's mandate by agreement of 6
the parties or in any other case of termination of the arbitrator's 7
mandate, a substitute arbitrator must be appointed according to the rules 8
that were applicable to the appointment of the arbitrator being replaced. 9
Page 13
Clause 16 Commercial Arbitration Bill 2010
Part 4 Jurisdiction of arbitral tribunal
Part 4 Jurisdiction of arbitral tribunal 1
16 Competence of arbitral tribunal to rule on its jurisdiction (cf Model Law 2
Art 16) 3
(1) The arbitral tribunal may rule on its own jurisdiction, including any 4
objections with respect to the existence or validity of the arbitration 5
agreement. 6
(2) For that purpose, an arbitration clause which forms part of a contract is 7
to be treated as an agreement independent of the other terms of the 8
contract. 9
(3) A decision by the arbitral tribunal that the contract is null and void does 10
not of itself entail the invalidity of the arbitration clause. 11
Note. The Model Law provides that such a decision does not "ipso jure" entail 12
the invalidity of the arbitration clause. 13
(4) A plea that the arbitral tribunal does not have jurisdiction must be raised 14
not later than the submission of the statement of defence. 15
(5) A party is not precluded from raising such a plea by the fact that the 16
party has appointed, or participated in the appointment of, an arbitrator. 17
(6) A plea that the arbitral tribunal is exceeding the scope of its authority 18
must be raised as soon as the matter alleged to be beyond the scope of 19
its authority is raised during the arbitral proceedings. 20
(7) The arbitral tribunal may, in the case of a plea referred to in subsection 21
(4) or (6), admit a later plea if it considers the delay justified. 22
(8) The arbitral tribunal may rule on a plea referred to in subsection (4) 23
or (6) either as a preliminary question or in an award on the merits. 24
(9) If the arbitral tribunal rules as a preliminary question that it has 25
jurisdiction, any party may request, within 30 days after having received 26
notice of that ruling, the Court to decide the matter. 27
(10) A decision of the Court under subsection (9) that is within the limits of 28
the authority of the Court is final. 29
(11) While a request under subsection (9) is pending, the arbitral tribunal 30
may continue the arbitral proceedings and make an award. 31
Note. Section 16 (other than subsection (10)) is substantially the same as 32
Art 16 of the Model Law. Subsection (10) makes it clear that, although a 33
decision of the Court is generally final, review of a decision of the Court that is 34
not made within the limits of its powers and functions is not precluded. 35
Page 14
Commercial Arbitration Bill 2010 Clause 17
Interim measures Part 4A
Part 4A Interim measures 1
Division 1 Interim measures 2
17 Power of arbitral tribunal to order interim measures (cf Model Law Art 17) 3
(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the 4
request of a party, grant interim measures. 5
(2) An interim measure is any temporary measure, whether in the form of 6
an award or in another form, by which, at any time prior to the issuance 7
of the award by which the dispute is finally decided, the arbitral tribunal 8
orders a party to: 9
(a) maintain or restore the status quo pending determination of the 10
dispute, or 11
(b) take action that would prevent, or refrain from taking action that 12
is likely to cause, current or imminent harm or prejudice to the 13
arbitral process itself, or 14
(c) provide a means of preserving assets out of which a subsequent 15
award may be satisfied, or 16
(d) preserve evidence that may be relevant and material to the 17
resolution of the dispute. 18
(3) Without limiting subsection (2), the arbitral tribunal may make orders 19
with respect to any of the following: 20
(a) security for costs, 21
(b) discovery of documents and interrogatories, 22
(c) giving of evidence by affidavit, 23
(d) the inspection of any property which is or forms part of the 24
subject-matter of the dispute, 25
(e) the taking of photographs of any property which is or forms part 26
of the subject-matter of the dispute, 27
(f) samples to be taken from, or any observation to be made of or 28
experiment conducted on, any property which is or forms part of 29
the subject-matter of the dispute, 30
(g) dividing, recording and strictly enforcing the time allocated for a 31
hearing between the parties (a stop clock arbitration). 32
Note. Subsections (1) and (2) are substantially the same as Art 17 of the Model 33
Law. There is no equivalent subsection (3) in the Model Law. 34
Page 15
Clause 17A Commercial Arbitration Bill 2010
Part 4A Interim measures
17A Conditions for granting interim measures (cf Model Law Art 17A) 1
(1) The party requesting an interim measure under section 17 (2) (a), (b) 2
or (c) must satisfy the arbitral tribunal that: 3
(a) harm not adequately reparable by an award of damages is likely 4
to result if the measure is not ordered, and that harm substantially 5
outweighs the harm that is likely to result to the party against 6
whom the measure is directed if the measure is granted, and 7
(b) there is a reasonable possibility that the requesting party will 8
succeed on the merits of the claim. 9
(2) The determination on the possibility referred to in subsection (1) (b) 10
does not affect the discretion of the arbitral tribunal in making any 11
subsequent determination. 12
(3) With regard to a request for an interim measure under section 17 (2) (d), 13
the requirements in subsection (1) (a) and (b) and subsection (2) apply 14
only to the extent the arbitral tribunal considers appropriate. 15
Division 2 Preliminary orders 16
17B Note. Art 17B of the Model Law, which provides for ex parte requests for interim 17
measures together with applications for preliminary orders directing parties not 18
to frustrate the interim measures, has been omitted. 19
17C Note. Art 17C of the Model Law, which contains safeguards for the party against 20
whom a preliminary order is directed under Art 17B, is omitted as a 21
consequence of the omission of Art 17B. 22
Division 3 Provisions applicable to interim measures 23
17D Modification, suspension, termination (cf Model Law Art 17D) 24
The arbitral tribunal may modify, suspend or terminate an interim 25
measure it has granted, on application of any party or, in exceptional 26
circumstances and on prior notice to the parties, on the arbitral 27
tribunal's own initiative. 28
Note. This section is substantially the same as Art 17D of the Model Law but 29
contains no reference to preliminary orders as a consequence of this Act not 30
including an equivalent of Arts 17B and 17C of the Model Law. 31
17E Provision of security (cf Model Law Art 17E) 32
(1) The arbitral tribunal may require the party requesting an interim 33
measure to provide appropriate security in connection with the measure. 34
(2) Note. Subsection (1) is the same as Art 17E (1) of the Model Law. Art 17E (2) 35
is omitted as a consequence of this Act not including equivalents to Arts 17B 36
and 17C of the Model Law. 37
Page 16
Commercial Arbitration Bill 2010 Clause 17F
Interim measures Part 4A
17F Disclosure (cf Model Law Art 17F) 1
(1) The arbitral tribunal may require any party promptly to disclose any 2
material change in the circumstances on the basis of which the measure 3
was requested or granted. 4
(2) Note. Subsection (1) is the same as Art 17F (1) of the Model Law. Art 17F (2) 5
is omitted as a consequence of this Act not including equivalents to Arts 17B 6
and 17C of the Model Law. 7
17G Costs and damages (cf Model Law Art 17G) 8
(1) The party requesting an interim measure is liable for any costs and 9
damages caused by the measure to any party if the arbitral tribunal later 10
determines that, in the circumstances, the measure should not have been 11
granted. 12
(2) The arbitral tribunal may award such costs and damages at any point 13
during the proceedings. 14
Note. This section is substantially the same as Art 17G of the Model Law but 15
the reference to applications for preliminary orders is omitted as a consequence 16
of this Act not including equivalents to Arts 17B and 17C of the Model Law. 17
Division 4 Recognition and enforcement of interim measures 18
17H Recognition and enforcement (cf Model Law Art 17H) 19
(1) An interim measure issued by an arbitral tribunal under the law of this 20
State is to be recognised as binding and, unless otherwise provided by 21
the arbitral tribunal, enforced on application to the Court, subject to the 22
provisions of section 17I. 23
(2) An interim measure issued by an arbitral tribunal under the law of 24
another State or Territory is to be recognised as binding in this State 25
and, unless otherwise provided by the arbitral tribunal, enforced on 26
application to the Court, irrespective of the State or Territory in which 27
it was issued, subject to the provisions of section 17I. 28
(3) The party who is seeking or has obtained recognition or enforcement of 29
an interim measure must promptly inform the Court of any termination, 30
suspension or modification of that interim measure. 31
(4) The Court may, if it considers it proper, order the requesting party to 32
provide appropriate security if the arbitral tribunal has not already made 33
a determination with respect to security or where such a decision is 34
necessary to protect the rights of third parties. 35
Note. This section differs from Art 17H of the Model Law to the extent necessary 36
to apply Art 17H as incorporated in this Act in the context of domestic 37
commercial arbitrations. 38
Page 17
Clause 17I Commercial Arbitration Bill 2010
Part 4A Interim measures
17I Grounds for refusing recognition or enforcement (cf Model Law Art 17I) 1
(1) Recognition or enforcement of an interim measure may be refused only: 2
(a) at the request of the party against whom it is invoked if the Court 3
is satisfied that: 4
(i) such a refusal is warranted on the grounds set out in section 5
36 (1) (a) (i), (ii), (iii) or (iv), or 6
(ii) the arbitral tribunal's decision with respect to the provision 7
of security in connection with the interim measure issued 8
by the arbitral tribunal has not been complied with, or 9
(iii) the interim measure has been terminated or suspended by 10
the arbitral tribunal or, where so empowered, by the court 11
in which the arbitration takes place or under the law of 12
which that interim measure was granted, or 13
(b) if the Court finds that: 14
(i) the interim measure is incompatible with the powers 15
conferred on the Court unless the Court decides to 16
reformulate the interim measure to the extent necessary to 17
adapt it to its own powers and procedures for the purposes 18
of enforcing that interim measure and without modifying 19
its substance, or 20
(ii) any of the grounds set out in section 36 (1) (b) (i) or (ii) 21
apply to the recognition and enforcement of the interim 22
measure. 23
(2) Any determination made by the Court on any ground in subsection (1) 24
is effective only for the purposes of the application to recognise and 25
enforce the interim measure. 26
(3) The Court must not, in making a determination with respect to the 27
recognition or enforcement sought, undertake a review of the substance 28
of the interim measure. 29
Note. This section is substantially the same as Art 17I of the Model Law but has 30
been modified to the extent necessary to apply Art 17I as incorporated in this 31
Act in the context of domestic commercial arbitrations. 32
Division 5 Court-ordered interim measures 33
17J Court-ordered interim measures (cf Model Law Art 17J) 34
(1) The Court has the same power of issuing an interim measure in relation 35
to arbitration proceedings as it has in relation to proceedings in courts. 36
Page 18
Commercial Arbitration Bill 2010 Clause 17J
Interim measures Part 4A
(2) The Court is to exercise the power in accordance with its own 1
procedures taking into account the specific features of a domestic 2
commercial arbitration. 3
Note. This section is substantially the same as Art 17J of the Model Law but has 4
been modified to the extent necessary to apply Art 17J as incorporated in this 5
Act in the context of domestic commercial arbitrations. 6
Page 19
Clause 18 Commercial Arbitration Bill 2010
Part 5 Conduct of arbitral proceedings
Part 5 Conduct of arbitral proceedings 1
18 Equal treatment of parties (cf Model Law Art 18) 2
The parties must be treated with equality and each party must be given 3
a reasonable opportunity of presenting the party's case. 4
Note. This section differs from the Model Law to the extent that it requires a 5
party to be given a "reasonable", instead of "full", opportunity of presenting the 6
party's case. 7
19 Determination of rules of procedure (cf Model Law Art 19) 8
(1) Subject to the provisions of this Act, the parties are free to agree on the 9
procedure to be followed by the arbitral tribunal in conducting the 10
proceedings. 11
(2) Failing such agreement, the arbitral tribunal may, subject to the 12
provisions of this Act, conduct the arbitration in such manner as it 13
considers appropriate. 14
(3) The power conferred on the arbitral tribunal includes the power to 15
determine the admissibility, relevance, materiality and weight of any 16
evidence. 17
(4) The power conferred on the tribunal also includes the power to make 18
orders or give directions for the examination of a party or witness on 19
oath or affirmation. 20
(5) For the purposes of the exercise of the power referred to in 21
subsection (4), the arbitral tribunal may administer any necessary oath 22
or take any necessary affirmation. 23
(6) An order made or direction given by an arbitral tribunal in the course of 24
arbitral proceedings is, by leave of the Court, enforceable in the same 25
manner as if it were an order of the Court and, where leave is so given, 26
judgment may be entered in terms of the order or direction. 27
Note. This section (other than subsections (4)-(6)) is substantially the same as 28
Art 19 of the Model Law. Subsections (4)-(6) elaborate on the powers conferred 29
on arbitral tribunals. 30
20 Place of arbitration (cf Model Law Art 20) 31
(1) The parties are free to agree on the place of arbitration. 32
(2) Failing such agreement, the place of arbitration is to be determined by 33
the arbitral tribunal having regard to the circumstances of the case, 34
including the convenience of the parties. 35
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Conduct of arbitral proceedings Part 5
(3) Despite subsection (1), the arbitral tribunal may, unless otherwise 1
agreed by the parties, meet at any place it considers appropriate for 2
consultation among its members, for hearing witnesses, experts or the 3
parties, or for inspection of goods, other property or documents. 4
21 Commencement of arbitral proceedings (cf Model Law Art 21) 5
Unless otherwise agreed by the parties, the arbitral proceedings in 6
respect of a particular dispute commence on the date on which a request 7
for that dispute to be referred to arbitration is received by the 8
respondent. 9
22 Language (cf Model Law Art 22) 10
(1) The parties are free to agree on the language or languages to be used in 11
the arbitral proceedings. 12
(2) Failing agreement as referred to in subsection (1), the arbitral tribunal is 13
to determine the language or languages to be used in the proceedings. 14
(3) This agreement or determination, unless otherwise specified in the 15
agreement or determination, is to apply to any written statement by a 16
party, any hearing and any award, decision or other communication by 17
the arbitral tribunal. 18
(4) The arbitral tribunal may order that any documentary evidence is to be 19
accompanied by a translation into the language or languages agreed on 20
by the parties or determined by the arbitral tribunal. 21
23 Statements of claim and defence (cf Model Law Art 23) 22
(1) Subject to any contrary agreement of the parties or a direction of the 23
arbitral tribunal, within the period of time agreed by the parties or 24
determined by the arbitral tribunal, the claimant must state the facts 25
supporting his or her claim, the points at issue and the relief or remedy 26
sought, and the respondent must state the respondent's defence in 27
respect of these particulars, unless the parties have otherwise agreed as 28
to the required elements of such statements. 29
(2) The parties may submit with their statements all documents they 30
consider to be relevant or may add a reference to the documents or other 31
evidence they will submit. 32
(3) Unless otherwise agreed by the parties, either party may amend or 33
supplement the party's claim or defence during the course of the arbitral 34
proceedings, unless the arbitral tribunal considers it inappropriate to 35
allow such amendment having regard to the delay in making it. 36
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Clause 24 Commercial Arbitration Bill 2010
Part 5 Conduct of arbitral proceedings
(4) Subsection (1) does not require a statement by a claimant or respondent 1
to be in a particular form. 2
Note. This section (other than subsections (1) and (4)) is substantially the same 3
as Art 23 of the Model Law. Subsection (1) has effect subject to any contrary 4
agreement of the parties or direction of the arbitral tribunal. Subsection (4) 5
makes it clear that it is not necessary to use a particular form of statement of 6
claim or defence. 7
24 Hearings and written proceedings (cf Model Law Art 24) 8
(1) Subject to any contrary agreement by the parties, the arbitral tribunal is 9
to decide whether to hold oral hearings for the presentation of evidence 10
or for oral argument, or whether the proceedings are to be conducted on 11
the basis of documents and other materials. 12
(2) However, unless the parties have agreed that no hearings are to be held, 13
the arbitral tribunal must hold such hearings at an appropriate stage of 14
the proceedings, if so requested by a party. 15
(3) The parties must be given sufficient advance notice of any hearing and 16
of any meeting of the arbitral tribunal for the purposes of inspection of 17
goods, other property or documents. 18
(4) All statements, documents or other information supplied to the arbitral 19
tribunal by one party must be communicated to the other party. 20
(5) Also, any expert report or evidentiary document on which the arbitral 21
tribunal may rely in making its decision must be communicated to the 22
parties. 23
24A Representation 24
(1) The parties may appear or act in person, or may be represented by 25
another person of their choice, in any oral hearings under section 24. 26
(2) A person who is not admitted to practise as a legal practitioner in New 27
South Wales does not commit an offence under or breach the provisions 28
of the Legal Profession Act 2004 or any other Act merely by 29
representing a party in arbitral proceedings in this State. 30
Note. There is no equivalent of this section in the Model Law. 31
24B General duties of parties 32
(1) The parties must do all things necessary for the proper and expeditious 33
conduct of the arbitral proceedings. 34
(2) Without limitation, the parties must: 35
(a) comply without undue delay with any order or direction of the 36
arbitral tribunal with respect to any procedural, evidentiary or 37
other matter, and 38
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Commercial Arbitration Bill 2010 Clause 25
Conduct of arbitral proceedings Part 5
(b) take without undue delay any necessary steps to obtain a decision 1
(if required) of the Court with respect to any function conferred 2
on the Court under section 6. 3
(3) A party must not wilfully do or cause to be done any act to delay or 4
prevent an award being made. 5
Note. There is no equivalent of this section in the Model Law. 6
25 Default of a party (cf Model Law Art 25) 7
(1) Unless otherwise agreed by the parties, if, without showing sufficient 8
cause: 9
(a) the claimant fails to communicate the claimant's statement of 10
claim in accordance with section 23 (1)--the arbitral tribunal 11
may terminate the proceedings, or 12
(b) the respondent fails to communicate the respondent's statement 13
of defence in accordance with section 23 (1)--the arbitral 14
tribunal may continue the proceedings without treating such 15
failure in itself as an admission of the claimant's allegations, or 16
(c) any party fails to appear at a hearing or to produce documentary 17
evidence--the arbitral tribunal may continue the proceedings and 18
make the award on the evidence before it. 19
(2) Unless otherwise agreed by the parties, if a party fails to do any other 20
thing necessary for the proper and expeditious conduct of the arbitration 21
the arbitral tribunal: 22
(a) if satisfied that there has been inordinate and inexcusable delay 23
on the part of the claimant in pursuing the claim--may make an 24
award dismissing the claim or may give directions (with or 25
without conditions) for the speedy determination of the claim, or 26
(b) if without sufficient cause a party fails to comply with any order 27
or direction of the arbitral tribunal--may make an order requiring 28
the party to comply with the terms of the earlier order or direction 29
within the period specified by the arbitral tribunal (a peremptory 30
order). 31
(3) If a party fails to comply with a peremptory order, the arbitral tribunal 32
may do any of the following: 33
(a) direct that the party in default is not to be entitled to rely on any 34
allegation or material which was the subject matter of the 35
peremptory order, 36
(b) draw such adverse inferences from the failure to comply as the 37
circumstances justify, 38
(c) proceed to an award on the basis of any materials that have been 39
properly provided to the arbitral tribunal, 40
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Clause 26 Commercial Arbitration Bill 2010
Part 5 Conduct of arbitral proceedings
(d) without limiting section 33B (4), in making an award give any 1
direction or order that it thinks fit as to the payment of the costs 2
of the arbitration incurred in consequence of the non-compliance. 3
Note. Subsection (1) is substantially the same as Art 25 of the Model Law. 4
There are no equivalents to the other provisions of the section in the Model Law. 5
26 Expert appointed by arbitral tribunal (cf Model Law Art 26) 6
(1) Unless otherwise agreed by the parties, the arbitral tribunal: 7
(a) may appoint one or more experts to report to it on specific issues 8
to be determined by the arbitral tribunal, and 9
(b) may require a party to give the expert any relevant information or 10
to produce, or to provide access to, any relevant documents, 11
goods or other property for the expert's inspection. 12
(2) Unless otherwise agreed by the parties, if a party so requests or if the 13
arbitral tribunal considers it necessary, the expert must, after delivery of 14
the expert's written or oral report, participate in a hearing where the 15
parties have the opportunity to put questions to the expert and present 16
expert witnesses in order to testify on the points at issue. 17
27 Court assistance in taking evidence (cf Model Law Art 27) 18
(1) The arbitral tribunal or a party with the approval of the arbitral tribunal 19
may request from the Court assistance in taking evidence. 20
(2) The Court may execute the request within its competence and subject to 21
and in accordance with rules of court. 22
Note. This section is substantially the same as Art 27 of the Model Law but the 23
reference to rules of court has been amended for consistency with sections 27A 24
and 27B and a request for assistance may only be made to the Court, not any 25
competent court. 26
27A Parties may obtain subpoenas 27
(1) The Court may, on the application of any party, and subject to and in 28
accordance with rules of court, issue a subpoena requiring a person: 29
(a) to attend for examination before the arbitral tribunal, or 30
(b) to produce to the arbitral tribunal the documents specified in the 31
subpoena, or 32
(c) to do both of those things. 33
(2) A party may only make an application to the Court under subsection (1) 34
with the permission of the arbitral tribunal. 35
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Commercial Arbitration Bill 2010 Clause 27B
Conduct of arbitral proceedings Part 5
(3) A person must not be compelled under any subpoena issued in 1
accordance with subsection (1) to answer any question or produce any 2
document that the person could not be compelled to answer or produce 3
in a proceeding before the Court. 4
Note. There is no equivalent to this section in the Model Law. 5
27B Refusal or failure to attend before arbitral tribunal or to produce 6
document 7
(1) For the purposes of this section, a person is a person in default in 8
relation to proceedings before an arbitral tribunal under an arbitration 9
agreement if the person: 10
(a) refuses or fails to attend before the arbitral tribunal for 11
examination when required under a subpoena or by the arbitral 12
tribunal to do so, or 13
(b) refuses or fails to produce a document that the person is required 14
under a subpoena or by the arbitral tribunal to produce, or 15
(c) when appearing as a witness before the arbitral tribunal: 16
(i) refuses or fails to take an oath or to make an affirmation or 17
affidavit when required by the arbitral tribunal to do so, or 18
(ii) refuses or fails to answer a question that the witness is 19
required by the arbitral tribunal to answer, or 20
(d) refuses or fails to do any other thing which the arbitral tribunal 21
may require. 22
(2) Unless otherwise agreed by the parties, the Court may, on the 23
application of a party or the arbitral tribunal, order a person in default to 24
do any or all of the following: 25
(a) attend the Court to be examined as a witness, 26
(b) produce the relevant document to the Court, 27
(c) do the relevant thing. 28
(3) A party may only make an application to the Court under subsection (2) 29
with the permission of the arbitral tribunal. 30
(4) The Court must not make an order under subsection (2) in relation to a 31
person who is not a party to the arbitral proceedings unless: 32
(a) before the order is made, the person is given an opportunity to 33
make representations to the Court, and 34
(b) the Court is satisfied that it is reasonable in all the circumstances 35
to make the order. 36
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Clause 27C Commercial Arbitration Bill 2010
Part 5 Conduct of arbitral proceedings
(5) A person must not be compelled under an order made under 1
subsection (2) to answer any question or produce any document which 2
the person could not be compelled to answer or produce in a proceeding 3
before the Court. 4
(6) If the Court makes an order under subsection (2), it may in addition 5
make orders for the transmission to the arbitral tribunal of any of the 6
following: 7
(a) a record of any evidence given under the order, 8
(b) any document produced under the order or a copy of any such 9
document, 10
(c) particulars of any thing done under the order. 11
(7) Any evidence, document or thing transmitted under subsection (6) is 12
taken to have been given, produced or done (as the case requires) in the 13
course of the arbitral proceedings. 14
Note. There is no equivalent of this section in the Model Law. 15
27C Consolidation of arbitral proceedings 16
(1) Unless otherwise agreed by the parties, a party to arbitral proceedings 17
may apply to the arbitral tribunal for an order under this section in 18
relation to those proceedings and other arbitral proceedings (whether 19
before that tribunal or another tribunal or other tribunals) on the ground 20
that: 21
(a) a common question of law or fact arises in all those proceedings, 22
or 23
(b) the rights to relief claimed in all those proceedings are in respect 24
of, or arise out of, the same transaction or series of transactions, 25
or 26
(c) for some other reason specified in the application, it is desirable 27
that an order be made under this section. 28
(2) In this section, 2 or more arbitral proceedings that are the subject of an 29
application under subsection (1) are called the related proceedings. 30
(3) The following orders may be made under this section in relation to the 31
related proceedings: 32
(a) that the proceedings be consolidated on terms specified in the 33
order, 34
(b) that the proceedings be heard at the same time or in a sequence 35
specified in the order, 36
(c) that any of the proceedings be stayed pending the determination 37
of any of the other proceedings. 38
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Commercial Arbitration Bill 2010 Clause 27D
Conduct of arbitral proceedings Part 5
(4) If all the related proceedings are being conducted by the same tribunal, 1
the tribunal may make any order under this section that it thinks fit in 2
relation to those proceedings and, if an order is made, the proceedings 3
must be dealt with in accordance with the order. 4
(5) If 2 or more arbitral tribunals are conducting the related proceedings: 5
(a) the tribunal that received the application must communicate the 6
substance of the application to the other tribunals concerned, and 7
(b) the tribunals must, as soon as practicable, deliberate jointly on the 8
application. 9
(6) If the tribunals agree, after deliberation on the application, that a 10
particular order under this section should be made in relation to the 11
related proceedings: 12
(a) the tribunals are to jointly make the order, and 13
(b) the related proceedings are to be dealt with in accordance with the 14
order, and 15
(c) if the order is that the related proceedings be consolidated--the 16
arbitrator or arbitrators for the purposes of the consolidated 17
proceedings are to be appointed, in accordance with sections 10 18
and 11, from the members of the tribunals. 19
(7) If the tribunals are unable to make an order under subsection (6), the 20
related proceedings are to proceed as if no application has been made 21
under subsection (1). 22
(8) Before making an order under this section, the arbitral tribunal or 23
tribunals concerned must take into account whether any party would or 24
might suffer substantial hardship if the order were made. 25
(9) This section does not prevent the parties to related proceedings from 26
agreeing to consolidate them and taking such steps as are necessary to 27
effect that consolidation. 28
Note. There is no equivalent to this section in the Model Law. 29
27D Power of arbitrator to act as mediator, conciliator or other non-arbitral 30
intermediary 31
(1) An arbitrator may act as a mediator in proceedings relating to a dispute 32
between the parties to an arbitration agreement (mediation 33
proceedings) if: 34
(a) the arbitration agreement provides for the arbitrator to act as 35
mediator in mediation proceedings (whether before or after 36
proceeding to arbitration, and whether or not continuing with the 37
arbitration), or 38
(b) each party has consented in writing to the arbitrator so acting. 39
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Clause 27E Commercial Arbitration Bill 2010
Part 5 Conduct of arbitral proceedings
(2) An arbitrator acting as a mediator: 1
(a) may communicate with the parties collectively or separately, and 2
(b) must treat information obtained by the arbitrator from a party 3
with whom he or she communicates separately as confidential, 4
unless that party otherwise agrees or unless the provisions of the 5
arbitration agreement relating to mediation proceedings 6
otherwise provide. 7
(3) Mediation proceedings in relation to a dispute terminate if: 8
(a) the parties to the dispute agree to terminate the proceedings, or 9
(b) any party to the dispute withdraws consent to the arbitrator acting 10
as mediator in the proceedings, or 11
(c) the arbitrator terminates the proceedings. 12
(4) An arbitrator who has acted as mediator in mediation proceedings that 13
are terminated may not conduct subsequent arbitration proceedings in 14
relation to the dispute without the written consent of all the parties to the 15
arbitration. 16
(5) If the parties consent under subsection (4), no objection may be taken to 17
the conduct of subsequent arbitration proceedings by the arbitrator 18
solely on the ground that he or she has acted previously as a mediator in 19
accordance with this section. 20
(6) If the parties do not consent under subsection (4), the arbitrator's 21
mandate is taken to have been terminated under section 14 and a 22
substitute arbitrator is to be appointed in accordance with section 15. 23
(7) If confidential information is obtained from a party during mediation 24
proceedings as referred to in subsection (2) (b) and the mediation 25
proceedings terminate, the arbitrator must, before conducting 26
subsequent arbitration proceedings in relation to the dispute, disclose to 27
all other parties to the arbitration proceedings so much of the 28
information as the arbitrator considers material to the arbitration 29
proceedings. 30
(8) In this section, a reference to a mediator includes a reference to a 31
conciliator or other non-arbitral intermediary between parties. 32
Note. There is no equivalent of this section in the Model Law. 33
27E Disclosure of confidential information 34
(1) The provisions of this section apply in arbitral proceedings unless 35
otherwise agreed by the parties. 36
(2) The parties must not disclose confidential information in relation to the 37
arbitral proceedings unless: 38
Page 28
Commercial Arbitration Bill 2010 Clause 27F
Conduct of arbitral proceedings Part 5
(a) the disclosure is allowed under section 27F, or 1
(b) the disclosure is allowed under an order made under section 27G 2
and no order is in force under section 27H prohibiting that 3
disclosure, or 4
(c) the disclosure is allowed under an order made under section 27I. 5
(3) An arbitral tribunal must not disclose confidential information in 6
relation to the arbitral proceedings unless: 7
(a) the disclosure is allowed under section 27F, or 8
(b) the disclosure is allowed under an order made under section 27G 9
and no order is in force under section 27H prohibiting that 10
disclosure, or 11
(c) the disclosure is allowed under an order made under section 27I. 12
Note. There is no equivalent to this section in the Model Law. 13
27F Circumstances in which confidential information may be disclosed 14
(1) This section sets out the circumstances in which confidential 15
information in relation to arbitral proceedings may be disclosed by: 16
(a) a party, or 17
(b) an arbitral tribunal. 18
(2) The information may be disclosed with the consent of all the parties to 19
the arbitral proceedings. 20
(3) The information may be disclosed to a professional or other adviser of 21
any of the parties. 22
(4) The information may be disclosed if it is necessary to ensure that a party 23
has a reasonable opportunity to present the party's case and the 24
disclosure is no more than reasonable for that purpose. 25
(5) The information may be disclosed if it is necessary for the establishment 26
or protection of a party's legal rights in relation to a third party and the 27
disclosure is no more than reasonable for that purpose. 28
(6) The information may be disclosed if it is necessary for the purpose of 29
enforcing an arbitral award and the disclosure is no more than 30
reasonable for that purpose. 31
(7) The information may be disclosed if it is necessary for the purposes of 32
this Act and the disclosure is no more than reasonable for that purpose. 33
(8) The information may be disclosed if the disclosure is in accordance with 34
an order made or a subpoena issued by a court. 35
(9) The information may be disclosed if the disclosure is authorised or 36
required by a relevant law or required by a competent regulatory body, 37
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Clause 27G Commercial Arbitration Bill 2010
Part 5 Conduct of arbitral proceedings
and the person making the disclosure gives written details of the 1
disclosure (including an explanation of the reasons for the disclosure) 2
to: 3
(a) if the person is a party--the other parties and the arbitral tribunal, 4
and 5
(b) if the arbitral tribunal is making the disclosure--all the parties. 6
(10) In this section: 7
relevant law means: 8
(a) a law of this State (other than this Act), and 9
(b) a law of the Commonwealth, and 10
(c) a law of another State or Territory. 11
Note. There is no equivalent to this section in the Model Law. 12
27G Arbitral tribunal may allow disclosure of confidential information in 13
certain circumstances 14
(1) An arbitral tribunal may make an order allowing a party to arbitral 15
proceedings to disclose confidential information in relation to the 16
proceedings in circumstances other than those mentioned in 17
section 27F. 18
(2) An order under subsection (1) may only be made at the request of one 19
of the parties and after giving each of the parties the opportunity to be 20
heard. 21
Note. There is no equivalent to this section in the Model Law. 22
27H The Court may prohibit disclosure of confidential information in certain 23
circumstances 24
(1) The Court may make an order prohibiting a party from disclosing 25
confidential information in relation to the arbitral proceedings if the 26
Court is satisfied, in the circumstances of the particular case, that: 27
(a) the public interest in preserving the confidentiality of arbitral 28
proceedings is not outweighed by other considerations that 29
render it desirable in the public interest for the confidential 30
information to be disclosed, and 31
(b) the disclosure is more than is reasonable for that purpose. 32
(2) An order under subsection (1) may only be made on the application of 33
a party to the arbitral proceedings and after giving each of the parties to 34
the arbitral proceedings the opportunity to be heard. 35
(3) A party may only apply for an order under subsection (1) if the arbitral 36
tribunal has made an order under section 27G (1) allowing disclosure of 37
the information. 38
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Commercial Arbitration Bill 2010 Clause 27I
Conduct of arbitral proceedings Part 5
(4) The Court may order that the confidential information not be disclosed 1
pending the outcome of the application under subsection (2). 2
(5) An order of the Court under this section that is made within the limits 3
of the authority of the Court is final. 4
Note. There is no equivalent to this section in the Model Law. 5
27I The Court may allow disclosure of confidential information in certain 6
circumstances 7
(1) The Court may make an order allowing a party to disclose confidential 8
information in relation to the arbitral proceedings in circumstances 9
other than those mentioned in section 27F if the Court is satisfied, in the 10
circumstances of the particular case, that: 11
(a) the public interest in preserving the confidentiality of arbitral 12
proceedings is outweighed by other considerations that render it 13
desirable in the public interest for the confidential information to 14
be disclosed, and 15
(b) the disclosure is no more than is reasonable for that purpose. 16
(2) An order under subsection (1) may only be made on the application of 17
a person who is or was a party to the arbitral proceedings and after 18
giving each person who is or was a party to the arbitral proceedings the 19
opportunity to be heard. 20
(3) A party to arbitral proceedings may only apply for an order under 21
subsection (1) if: 22
(a) the mandate of the arbitral tribunal has been terminated under 23
section 32, or 24
(b) a request by the party to the arbitral tribunal to make an order 25
under section 27G has been refused. 26
(4) An order of the Court under this section that is made within the limits 27
of the authority of the Court is final. 28
Note. There is no equivalent to this section in the Model Law. 29
27J Determination of preliminary point of law by the Court 30
(1) Unless otherwise agreed by the parties, on an application to the Court 31
made by any of the parties to an arbitration agreement the Court has 32
jurisdiction to determine any question of law arising in the course of the 33
arbitration. 34
(2) An application under this section may be made by a party only with the 35
consent of: 36
(a) an arbitrator who has entered on the reference, or 37
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Clause 27J Commercial Arbitration Bill 2010
Part 5 Conduct of arbitral proceedings
(b) all the other parties, 1
and with the leave of the Court. 2
Note. There is no equivalent to this section in the Model Law. 3
Page 32
Commercial Arbitration Bill 2010 Clause 28
Making of award and termination of proceedings Part 6
Part 6 Making of award and termination of 1
proceedings 2
28 Rules applicable to substance of dispute (cf Model Law Art 28) 3
(1) The arbitral tribunal must decide the dispute in accordance with such 4
rules of law as are chosen by the parties as applicable to the substance 5
of the dispute. 6
(2) Any designation of the law or legal system of a given State or Territory 7
must be construed, unless otherwise expressed, as directly referring to 8
the substantive law of that State or Territory and not to its conflict of 9
laws rules. 10
(3) Failing any designation by the parties, the arbitral tribunal must apply 11
the law determined by the conflict of laws rules which it considers 12
applicable. 13
(4) The arbitral tribunal must decide the dispute, if the parties so agree, in 14
accordance with such other considerations as are agreed to by the 15
parties. 16
(5) In all cases, the arbitral tribunal must decide in accordance with the 17
terms of the contract and must take into account the usages of the trade 18
applicable to the transaction. 19
Note. This section (other than subsection (4)) is substantially the same as Art 20
28 of the Model Law. 21
29 Decision-making by panel of arbitrators (cf Model Law Art 29) 22
(1) In arbitral proceedings with more than one arbitrator, any decision of 23
the arbitral tribunal must be made, unless otherwise agreed by the 24
parties, by a majority of all its members. 25
(2) However, questions of procedure may be decided by a presiding 26
arbitrator, if so authorised by the parties or all members of the arbitral 27
tribunal. 28
30 Settlement (cf Model Law Art 30) 29
(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral 30
tribunal must terminate the proceedings and, if requested by the parties 31
and not objected to by the arbitral tribunal, record the settlement in the 32
form of an arbitral award on agreed terms. 33
(2) An award on agreed terms is to be made in accordance with section 31 34
and must state that it is an award. 35
(3) Such an award has the same status and effect as any other award on the 36
merits of the case. 37
Page 33
Clause 31 Commercial Arbitration Bill 2010
Part 6 Making of award and termination of proceedings
31 Form and contents of award (cf Model Law Art 31) 1
(1) The award must be made in writing and must be signed by the arbitrator 2
or arbitrators. 3
(2) In arbitral proceedings with more than one arbitrator, the signatures of 4
the majority of all members of the arbitral tribunal suffices, provided 5
that the reason for any omitted signature is stated. 6
(3) The award must state the reasons upon which it is based, unless the 7
parties have agreed that no reasons are to be given or the award is an 8
award on agreed terms under section 30. 9
(4) The award must state its date and the place of arbitration as determined 10
in accordance with section 20. 11
(5) The award is taken to have been made at the place stated in the award 12
in accordance with subsection (4). 13
(6) After the award is made, a copy signed by the arbitrators in accordance 14
with subsection (1) must be delivered to each party. 15
32 Termination of proceedings (cf Model Law Art 32) 16
(1) The arbitral proceedings are terminated by the final award or by an 17
order of the arbitral tribunal in accordance with subsection (2). 18
(2) The arbitral tribunal is to issue an order for the termination of the 19
arbitral proceedings when: 20
(a) the claimant withdraws his or her claim, unless the respondent 21
objects and the arbitral tribunal recognises a legitimate interest on 22
the respondent's part in obtaining a final settlement of the 23
dispute, or 24
(b) the parties agree on the termination of the proceedings, or 25
(c) the arbitral tribunal finds that the continuation of the proceedings 26
has for any other reason become unnecessary or impossible, or 27
(d) the arbitral tribunal makes an award under section 25 (2) (a) 28
dismissing the claim. 29
(3) The mandate of the arbitral tribunal terminates with the termination of 30
the arbitral proceedings, subject to sections 33 and 34 (4). 31
33 Correction and interpretation of award; additional award (cf Model Law 32
Art 33) 33
(1) Within 30 days of receipt of the award, unless another period of time has 34
been agreed on by the parties: 35
(a) a party, with notice to the other party, may request the arbitral 36
tribunal to correct in the award any errors in computation, any 37
Page 34
Commercial Arbitration Bill 2010 Clause 33A
Making of award and termination of proceedings Part 6
clerical or typographical errors or any errors of similar nature, 1
and 2
(b) if so agreed by the parties, a party, with notice to the other party, 3
may request the arbitral tribunal to give an interpretation of a 4
specific point or part of the award. 5
(2) If the arbitral tribunal considers a request under subsection (1) to be 6
justified, it must make the correction or give the interpretation within 7
30 days of receipt of the request. 8
(3) The interpretation forms part of the award. 9
(4) The arbitral tribunal may correct any error of the type referred to in 10
subsection (1) (a) on its own initiative within 30 days of the date of the 11
award. 12
(5) Unless otherwise agreed by the parties, a party, with notice to the other 13
party, may request, within 30 days of receipt of the award, the arbitral 14
tribunal to make an additional award as to claims presented in the 15
arbitral proceedings but omitted from the award. 16
(6) If the arbitral tribunal considers the request to be justified, it must make 17
the additional award within 60 days. 18
(7) The arbitral tribunal may extend, if necessary, the period of time within 19
which it may make a correction, interpretation or an additional award 20
under subsection (2) or (5). 21
(8) Section 31 applies to a correction or interpretation of the award or to an 22
additional award. 23
33A Specific performance 24
Unless otherwise agreed by the parties, the arbitrator has the power to 25
make an award ordering specific performance of any contract if the 26
Court would have power to order specific performance of that contract. 27
Note. There is no equivalent to this section in the Model Law. 28
33B Costs 29
(1) Unless otherwise agreed by the parties, the costs of an arbitration 30
(including the fees and expenses of the arbitrator or arbitrators) are to 31
be in the discretion of the arbitral tribunal. 32
(2) Unless otherwise agreed by the parties, the arbitral tribunal may direct 33
that the costs of an arbitration, or of any part of the arbitral proceedings, 34
are to be limited to a specified amount. 35
Page 35
Clause 33C Commercial Arbitration Bill 2010
Part 6 Making of award and termination of proceedings
(3) A direction under subsection (2) may be varied at any stage, but this 1
must be done sufficiently in advance of the incurring of costs to which 2
it relates, or the taking of any steps in the proceedings which may be 3
affected by it, for the limit to be taken into account. 4
(4) The arbitral tribunal may, in making an award: 5
(a) direct to whom, by whom, and in what manner, the whole or any 6
part of the costs that it awards are to be paid, and 7
(b) tax or settle the amount of costs to be paid or any part of those 8
costs, and 9
(c) award costs to be taxed or settled as between party and party or 10
as between legal practitioner and client. 11
(5) Any costs of an arbitration (other than the fees or expenses of an 12
arbitrator) that are directed to be paid by an award are, to the extent that 13
they have not been taxed or settled by the arbitral tribunal, to be 14
assessed in the Court having jurisdiction under section 34 to hear 15
applications setting aside the award. 16
(6) If no provision is made by an award with respect to the costs of the 17
arbitration, a party may, within 14 days after receiving the award, apply 18
to the arbitral tribunal for directions as to the payment of those costs. 19
(7) The arbitral tribunal must, after hearing any party who wishes to be 20
heard, amend the award by adding to it such directions as the arbitral 21
tribunal thinks proper with respect to the payment of the costs of the 22
arbitration. 23
Note. There is no equivalent to this section in the Model Law. 24
33C Application of Legal Profession Act 2004 25
For the purposes of section 33B (5), Division 11 of Part 3.2 of the Legal 26
Profession Act 2004 applies with any necessary modifications. 27
Note. There is no equivalent to this section in the Model Law. 28
33D Costs of abortive arbitration 29
(1) Unless otherwise agreed in writing by the parties, if an arbitration is 30
commenced but for any reason fails, the Court may, on the application 31
of a party or the arbitral tribunal made within 6 months after the failure 32
of the arbitration, make such orders in relation to the costs of the 33
arbitration as it thinks just. 34
(2) For the purposes of this section, an arbitration is taken to have failed if: 35
(a) a final award is not made by the arbitral tribunal before the 36
arbitration terminates, or 37
(b) an award made is wholly set aside by the Court. 38
Page 36
Commercial Arbitration Bill 2010 Clause 33E
Making of award and termination of proceedings Part 6
(3) If the failed arbitration is a related proceedings (within the meaning of 1
section 27C), the Court may stay proceedings on the application under 2
subsection (1) pending the determination of the other arbitration 3
proceedings to which the failed arbitration is related. 4
Note. There is no equivalent to this section in the Model Law. 5
33E Interest up to making of award 6
(1) Unless otherwise agreed by the parties, where an arbitral tribunal makes 7
an award for the payment of money (whether on a claim for a liquidated 8
or an unliquidated amount), the arbitral tribunal may include in the sum 9
for which the award is made interest, at such reasonable rate as the 10
arbitral tribunal determines: 11
(a) on the whole or any part of the money, and 12
(b) for the whole or any part of the period between the date on which 13
the cause of action arose and the date on which the award is made. 14
(2) Subsection (1) does not: 15
(a) authorise the awarding of interest on interest awarded under this 16
section, or 17
(b) apply in relation to any amount on which interest is payable as of 18
right whether because of an agreement or otherwise, or 19
(c) affect the damages recoverable for the dishonour of a bill of 20
exchange. 21
Note. There is no equivalent to this section in the Model Law. 22
33F Interest on debt under award 23
(1) This section applies if: 24
(a) an arbitral tribunal makes an award for the payment of an amount 25
of money, and 26
(b) under the award, the amount is to be paid by a particular day (the 27
due date), 28
unless otherwise agreed by the parties. 29
(2) The arbitral tribunal may direct that interest, including compound 30
interest, is payable if the amount is not paid on or before the due date. 31
(3) The arbitral tribunal may set a reasonable rate of interest. 32
(4) The interest is payable: 33
(a) from the day immediately following the due date, and 34
(b) on so much of the money as remains unpaid. 35
(5) The direction is taken to form part of the award. 36
Note. There is no equivalent to this section in the Model Law. 37
Page 37
Clause 34 Commercial Arbitration Bill 2010
Part 7 Recourse against award
Part 7 Recourse against award 1
34 Application for setting aside as exclusive recourse against arbitral 2
award (cf Model Law Art 34) 3
(1) Recourse to the Court against an arbitral award may be made only by an 4
application for setting aside in accordance with subsections (2) and (3) 5
or by an appeal under section 34A. 6
Note. The Model Law does not provide for appeals as under section 34A. 7
(2) An arbitral award may be set aside by the Court only if: 8
(a) the party making the application furnishes proof that: 9
(i) a party to the arbitration agreement referred to in section 7 10
was under some incapacity, or the arbitration agreement is 11
not valid under the law to which the parties have subjected 12
it or, failing any indication in it, under the law of this State, 13
or 14
(ii) the party making the application was not given proper 15
notice of the appointment of an arbitral tribunal or of the 16
arbitral proceedings or was otherwise unable to present the 17
party's case, or 18
(iii) the award deals with a dispute not contemplated by or not 19
falling within the terms of the submission to arbitration, or 20
contains decisions on matters beyond the scope of the 21
submission to arbitration, provided that, if the decisions on 22
matters submitted to arbitration can be separated from 23
those not so submitted, only that part of the award which 24
contains decisions on matters not submitted to arbitration 25
may be set aside, or 26
(iv) the composition of the arbitral tribunal or the arbitral 27
procedure was not in accordance with the agreement of the 28
parties, unless such agreement was in conflict with a 29
provision of this Act from which the parties cannot 30
derogate, or, failing such agreement, was not in 31
accordance with this Act, or 32
(b) the Court finds that: 33
(i) the subject-matter of the dispute is not capable of 34
settlement by arbitration under the law of this State, or 35
(ii) the award is in conflict with the public policy of this State. 36
(3) An application for setting aside may not be made after 3 months have 37
elapsed from the date on which the party making that application had 38
received the award or, if a request had been made under section 33, from 39
the date on which that request had been disposed of by the arbitral 40
tribunal. 41
Page 38
Commercial Arbitration Bill 2010 Clause 34A
Recourse against award Part 7
(4) The Court, when asked to set aside an award, may, where appropriate 1
and so requested by a party, suspend the setting aside of proceedings for 2
a period of time determined by it in order to give the arbitral tribunal an 3
opportunity to resume the arbitral proceedings or to take such other 4
action as in the arbitral tribunal's opinion will eliminate the grounds for 5
setting aside. 6
34A Appeals against awards 7
(1) An appeal lies to the Court on a question of law arising out of an award 8
if: 9
(a) the parties agree, before the end of the appeal period referred to 10
in subsection (6), that an appeal may be made under this section, 11
and 12
(b) the Court grants leave. 13
(2) An appeal under this section may be brought by any of the parties to an 14
arbitration agreement. 15
(3) The Court must not grant leave unless it is satisfied: 16
(a) that the determination of the question will substantially affect the 17
rights of one or more of the parties, and 18
(b) that the question is one which the arbitral tribunal was asked to 19
determine, and 20
(c) that, on the basis of the findings of fact in the award: 21
(i) the decision of the tribunal on the question is obviously 22
wrong, or 23
(ii) the question is one of general public importance and the 24
decision of the tribunal is at least open to serious doubt, 25
and 26
(d) that, despite the agreement of the parties to resolve the matter by 27
arbitration, it is just and proper in all the circumstances for the 28
Court to determine the question. 29
(4) An application for leave to appeal must identify the question of law to 30
be determined and state the grounds on which it is alleged that leave to 31
appeal should be granted. 32
(5) The Court is to determine an application for leave to appeal without a 33
hearing unless it appears to the Court that a hearing is required. 34
(6) An appeal may not be made under this section after 3 months have 35
elapsed from the date on which the party making the appeal received the 36
award or, if a request had been made under section 33, from the date on 37
which that request had been disposed of by the arbitral tribunal (in this 38
section referred to as the appeal period). 39
Page 39
Clause 34A Commercial Arbitration Bill 2010
Part 7 Recourse against award
(7) On the determination of an appeal under this section the Court may by 1
order: 2
(a) confirm the award, or 3
(b) vary the award, or 4
(c) remit the award, together with the Court's opinion on the 5
question of law which was the subject of the appeal, to the 6
arbitrator for reconsideration or, where a new arbitrator has been 7
appointed, to that arbitrator for consideration, or 8
(d) set aside the award in whole or in part. 9
(8) The Court must not exercise its power to set aside an award, in whole or 10
in part, unless it is satisfied that it would be inappropriate to remit the 11
matters in question to the arbitral tribunal for reconsideration. 12
(9) Where the award is remitted under subsection (7) (c) the arbitrator must, 13
unless the order otherwise directs, make the award within 3 months after 14
the date of the order. 15
(10) The Court may make any leave which it grants under subsection (3) (c) 16
subject to the applicant complying with any conditions it considers 17
appropriate. 18
(11) Where the award of an arbitrator is varied on an appeal under this 19
section, the award as varied has effect (except for the purposes of this 20
section) as if it were the award of the arbitrator. 21
Note. There is no equivalent to this section in the Model Law. 22
Page 40
Commercial Arbitration Bill 2010 Clause 35
Recognition and enforcement of awards Part 8
Part 8 Recognition and enforcement of awards 1
35 Recognition and enforcement (cf Model Law Art 35) 2
(1) An arbitral award, irrespective of the State or Territory in which it was 3
made, is to be recognised in this State as binding and, on application in 4
writing to the Court, is to be enforced subject to the provisions of this 5
section and section 36. 6
(2) The party relying on an award or applying for its enforcement must 7
supply the original award or a copy of the original award. 8
(3) If the award is not made in English, the Court may request the party to 9
supply a translation of it into English. 10
Note. So much of Art 35 (2) of the Model Law as provides for the translation of 11
an award that is not in the official language of the enforcing State has been 12
modified. 13
36 Grounds for refusing recognition or enforcement (cf Model Law Art 36) 14
(1) Recognition or enforcement of an arbitral award, irrespective of the 15
State or Territory in which it was made, may be refused only: 16
(a) at the request of the party against whom it is invoked, if that party 17
furnishes to the Court proof that: 18
(i) a party to the arbitration agreement was under some 19
incapacity, or the arbitration agreement is not valid under 20
the law to which the parties have subjected it or, failing any 21
indication in it, under the law of the State or Territory 22
where the award was made, or 23
(ii) the party against whom the award is invoked was not given 24
proper notice of the appointment of an arbitrator or of the 25
arbitral proceedings or was otherwise unable to present the 26
party's case, or 27
(iii) the award deals with a dispute not contemplated by or not 28
falling within the terms of the submission to arbitration, or 29
it contains decisions on matters beyond the scope of the 30
submission to arbitration, provided that, if the decisions on 31
matters submitted to arbitration can be separated from 32
those not so submitted, that part of the award which 33
contains decisions on matters submitted to arbitration may 34
be recognised and enforced, or 35
(iv) the composition of the arbitral tribunal or the arbitral 36
procedure was not in accordance with the agreement of the 37
parties or, failing such agreement, was not in accordance 38
with the law of the State or Territory where the arbitration 39
took place, or 40
Page 41
Clause 36 Commercial Arbitration Bill 2010
Part 8 Recognition and enforcement of awards
(v) the award has not yet become binding on the parties or has 1
been set aside or suspended by a court of the State or 2
Territory in which, or under the law of which, that award 3
was made, or 4
(b) if the Court finds that: 5
(i) the subject-matter of the dispute is not capable of 6
settlement by arbitration under the law of this State, or 7
(ii) the recognition or enforcement of the award would be 8
contrary to the public policy of this State. 9
(2) If an application for setting aside or suspension of an award has been 10
made to a court referred to in subsection (1) (a) (v), the Court may, if it 11
considers it proper, adjourn its decision and may also, on the application 12
of the party claiming recognition or enforcement of the award, order the 13
party to provide appropriate security. 14
Page 42
Commercial Arbitration Bill 2010 Clause 37
Miscellaneous Part 9
Part 9 Miscellaneous 1
37 Death of party 2
(1) Unless otherwise agreed by the parties, if a party to an arbitration 3
agreement dies the agreement is not discharged (either as respects the 4
deceased or any other party) and the authority of an arbitral tribunal is 5
not revoked by the death but that agreement is enforceable by or against 6
the personal representative of the deceased. 7
(2) Nothing in subsection (1) affects the operation of any enactment or rule 8
of law by virtue of which a right of action is extinguished by the death 9
of a person. 10
Note. There is no equivalent to this section in the Model Law. 11
38 Interpleader 12
Where relief by way of interpleader is granted in any court and it 13
appears to that court that the claims in question are matters to which an 14
arbitration agreement (to which the claimants are parties) applies, the 15
Court must, unless it is satisfied that there is sufficient reason why the 16
matters should not be referred to arbitration in accordance with the 17
agreement, make an order directing the issue between the claimants to 18
be determined in accordance with the agreement. 19
Note. There is no equivalent to this section in the Model Law. 20
39 Immunity 21
(1) An arbitrator is not liable for anything done or omitted to be done in 22
good faith in his or her capacity as arbitrator. 23
(2) An entity that appoints, or fails to appoint, a person as arbitrator is not 24
liable in relation to the appointment, failure or refusal if done in good 25
faith. 26
(3) In this section, a reference to an arbitrator includes an arbitrator acting 27
as a mediator, conciliator or other non-arbitral intermediary under 28
section 27D. 29
Note. There is no equivalent to this section in the Model Law. 30
40 Act to bind Crown 31
This Act binds the Crown in right of New South Wales and, in so far as 32
the legislative power of the Parliament of New South Wales permits, the 33
Crown in all its other capacities. 34
Note. There is no equivalent to this section in the Model Law. 35
Page 43
Clause 41 Commercial Arbitration Bill 2010
Part 9 Miscellaneous
41 Court rules 1
(1) Rules of court may be made for carrying the purposes of this Act into 2
effect and, in particular, for or with respect to the following: 3
(a) applications to a court under this Act and the costs of such 4
applications, 5
(b) the payment or bringing of money into and out of a court in 6
satisfaction of claims to which arbitration agreements apply and 7
the investment of that money, 8
(c) the examination of witnesses before a court or before any other 9
person and the issue of commissions or requests for the 10
examination of witnesses outside New South Wales, for the 11
purposes of an arbitration, 12
(d) offers of compromise in relation to claims to which arbitration 13
agreements apply, 14
(e) any other matter or thing for or with respect to which rules are by 15
this Act authorised or required to be made by a court. 16
(2) Subsection (1) does not limit the rule-making powers conferred on a 17
court by any other Act. 18
Note. There is no equivalent to this section in the Model Law. 19
42 Repeal 20
The Commercial Arbitration Act 1984 is repealed. 21
Note. There is no equivalent to this section in the Model Law. 22
43 Regulations 23
The Governor may make regulations, not inconsistent with this Act, for 24
or with respect to any matter that by this Act is required or permitted to 25
be prescribed or that is necessary or convenient to be prescribed for 26
carrying out or giving effect to this Act. 27
Note. There is no equivalent to this section in the Model Law. 28
Page 44
Commercial Arbitration Bill 2010
Savings, transitional and other provisions Schedule 1
Schedule 1 Savings, transitional and other 1
provisions 2
1 Regulations 3
(1) The regulations may contain provisions of a savings or transitional 4
nature consequent on the enactment of the following Acts: 5
this Act 6
(2) Any such provision may, if the regulations so provide, take effect from 7
the date of assent to the Act concerned or a later date. 8
(3) To the extent to which any such provision takes effect from a date that 9
is earlier than the date of its publication on the NSW legislation website, 10
the provision does not operate so as: 11
(a) to affect, in a manner prejudicial to any person (other than the 12
State or an authority of the State), the rights of that person 13
existing before the date of its publication, or 14
(b) to impose liabilities on any person (other than the State or an 15
authority of the State) in respect of anything done or omitted to 16
be done before the date of its publication. 17
2 Savings and transitional provisions 18
(1) Subject to subclause (2): 19
(a) this Act applies to an arbitration agreement (whether made before 20
or after the commencement of this Act) and to an arbitration 21
under such an agreement, and 22
(b) a reference in an arbitration agreement to the Commercial 23
Arbitration Act 1984, or a provision of that Act, is to be construed 24
as a reference to this Act or to the corresponding provision (if 25
any) of this Act. 26
(2) If an arbitration was commenced before the commencement of this Act, 27
the law governing the arbitration and the arbitration agreement is to be 28
that which would have been applicable if this Act had not been enacted. 29
(3) For the purposes of this clause, an arbitration is taken to have been 30
commenced if: 31
(a) a dispute to which the relevant arbitration agreement applies has 32
arisen, and 33
(b) the arbitral tribunal has been properly constituted. 34
Page 45
Commercial Arbitration Bill 2010
Schedule 2 Amendment of Acts and regulations
Schedule 2 Amendment of Acts and regulations 1
2.1 Aboriginal Land Rights Act 1983 No 42 2
[1] Section 240 Application of Commercial Arbitration Act 2010 3
Omit "Commercial Arbitration Act 1984" wherever occurring in section 240 4
and in the note to the section. 5
Insert instead "Commercial Arbitration Act 2010". 6
[2] Section 240, note 7
Insert "unless set aside under that Act" after "final". 8
[3] Section 240, note 9
Omit "the Supreme Court". Insert instead "a court". 10
2.2 Aboriginal Land Rights Regulation 2002 11
[1] Clause 100 Application of Commercial Arbitration Act 2010 to 12
arbitrations under the Act 13
Omit "Commercial Arbitration Act 1984" from clause 100 (1). 14
Insert instead "Commercial Arbitration Act 2010". 15
[2] Clause 100 (2) 16
Omit "section 6 of the Commercial Arbitration Act 1984". 17
Insert instead "section 10 of the Commercial Arbitration Act 2010". 18
[3] Clause 100 (3) 19
Omit the subclause. Insert instead: 20
(3) A provision of the Commercial Arbitration Act 2010 does not 21
apply to the extent to which it provides for the appointment of 22
more than one arbitrator or of an umpire or enables arbitration to 23
be undertaken by an umpire. 24
2.3 Agricultural Tenancies Act 1990 No 64 25
[1] Section 26K Application of Commercial Arbitration Act 2010 26
Omit "Commercial Arbitration Act 1984" from section 26K (1). 27
Insert instead "Commercial Arbitration Act 2010". 28
Page 46
Commercial Arbitration Bill 2010
Amendment of Acts and regulations Schedule 2
[2] Section 26K (2) and (3) 1
Omit section 26K (2)-(4). Insert instead: 2
(2) The following provisions of the Commercial Arbitration 3
Act 2010 do not apply to an arbitration under this Act: 4
(a) Part 3, 5
(b) sections 17I and 36. 6
(3) The following provisions of the Commercial Arbitration 7
Act 2010 apply to an arbitration under this Act, with the 8
modifications set out below: 9
(a) section 17H (Recognition and enforcement), as if a 10
reference in that section to the Court were a reference to a 11
registrar of the Local Court, 12
(b) section 17J (Court-ordered interim measures), as if a 13
reference in that section to the Court were a reference to a 14
registrar of the Local Court, 15
(c) section 27A (Parties may obtain subpoenas), as if a 16
reference in that section to the Court were a reference to a 17
registrar of the Local Court, 18
(d) section 27B (Refusal or failure to attend before arbitral 19
tribunal or to produce document), as if a reference in that 20
section to the Court were a reference to a registrar of the 21
Local Court, 22
(e) section 27H (The Court may prohibit disclosure of 23
confidential information in certain circumstances), as if a 24
reference in that section to the Court were a reference to a 25
registrar of the Local Court, 26
(f) section 35 (Recognition and enforcement), as if a reference 27
in that section to the Court were a reference to a court of 28
competent jurisdiction. 29
[3] Section 26K, note 30
Insert "unless set aside under that Act" after "final". 31
[4] Section 26K, note 32
Omit "the Supreme Court". Insert instead "a court". 33
Page 47
Commercial Arbitration Bill 2010
Schedule 2 Amendment of Acts and regulations
2.4 Agricultural Tenancies Regulation 2006 1
[1] Clause 7 2
Omit the clause. Insert instead: 3
7 Application of Commercial Arbitration Act 2010 4
Section 33B (4) (b) of the Commercial Arbitration Act 2010 does 5
not apply to or in respect of an arbitration under the Act. 6
2.5 Anglican Church of Australia Constitution Act 1961 No 16 7
Section 9 Powers of tribunal under chapter 9 of Constitution 8
Omit "Commercial Arbitration Act 1984". 9
Insert instead "Commercial Arbitration Act 2010". 10
2.6 Coal Industry Act 2001 No 107 11
Section 42 Arbitration of dispute concerning appointment and 12
termination of appointment of members of Brigade 13
Omit "Commercial Arbitration Act 1984" from section 42 (1). 14
Insert instead "Commercial Arbitration Act 2010". 15
2.7 Conveyancing Act 1919 No 6 16
[1] Sections 84 and 84A 17
Omit "Commercial Arbitration Act 1984" wherever occurring in the provisos 18
to sections 84 (1) (a) and 84A (a). 19
Insert instead "Commercial Arbitration Act 2010". 20
[2] Schedule 4 Short forms of covenants in mortgages and leases 21
Omit "Commercial Arbitration Act 1984" from item 2 in column 2 of Part 2. 22
Insert instead "Commercial Arbitration Act 2010". 23
2.8 Electricity Supply (General) Regulation 2001 24
Clause 98 Arbitration 25
Omit "Commercial Arbitration Act 1984" from clause 98 (9). 26
Insert instead "Commercial Arbitration Act 2010". 27
Page 48
Commercial Arbitration Bill 2010
Amendment of Acts and regulations Schedule 2
2.9 Independent Pricing and Regulatory Tribunal Act 1992 No 39 1
[1] Section 24A Arbitration of access disputes 2
Omit "Commercial Arbitration Act 1984" from section 24A (2). 3
Insert instead "Commercial Arbitration Act 2010". 4
[2] Section 31 Disputes regarding application of determination of 5
methodology 6
Omit "Commercial Arbitration Act 1984" from section 31 (6). 7
Insert instead "Commercial Arbitration Act 2010". 8
2.10 Independent Pricing and Regulatory Tribunal Regulation 9
2007 10
[1] Clause 4 Object of Regulation 11
Omit "Commercial Arbitration Act 1984". 12
Insert instead "Commercial Arbitration Act 2010". 13
[2] Clause 5 Legal representation 14
Omit "section 20 (1) of the Commercial Arbitration Act 1984" from 15
clause 5 (3). 16
Insert instead "section 24A of the Commercial Arbitration Act 2010". 17
[3] Clause 7 Costs of arbitration 18
Omit "section 34 (1) and (2) of the Commercial Arbitration Act 1984, and 19
without limiting the fees and expenses of the arbitrator or umpire as referred 20
to in section 34". 21
Insert instead "section 33B of the Commercial Arbitration Act 2010, and 22
without limiting the fees or expenses of the arbitrator or arbitrators". 23
[4] Clause 7 24
Omit "or umpire" where secondly occurring. Insert instead "or arbitrators". 25
[5] Clause 7 (a) 26
Omit "umpire". Insert instead "arbitrators". 27
Page 49
Commercial Arbitration Bill 2010
Schedule 2 Amendment of Acts and regulations
2.11 Local Government Act 1993 No 30 1
Section 730 Compensation 2
Omit "Commercial Arbitration Act 1984" from section 730 (1). 3
Insert instead "Commercial Arbitration Act 2010". 4
2.12 Luna Park Site Act 1990 No 59 5
[1] Section 16 Fees and expenses of the arbitrator 6
Omit "Commercial Arbitration Act 1984 by the arbitrator". 7
Insert instead "Commercial Arbitration Act 2010 by the arbitral tribunal". 8
[2] Section 17 9
Omit the section. Insert instead: 10
17 Application of the Commercial Arbitration Act 2010 11
(1) Except as provided by this Act or the regulations, the 12
Commercial Arbitration Act 2010 applies to and in respect of any 13
arbitration under this Act as if the lessee and the Minister were 14
parties to an arbitration agreement. 15
(2) Part 3 (except section 15) of the Commercial Arbitration Act 16
2010 and sections 27C and 33A of that Act do not apply to or in 17
respect of any arbitration under this Act. 18
2.13 Motor Accidents Compensation Act 1999 No 41 19
Section 27 Rejection of premiums by Authority 20
Omit "Commercial Arbitration Act 1984" from section 27 (6) (a). 21
Insert instead "Commercial Arbitration Act 2010". 22
2.14 Passenger Transport Regulation 2007 23
Clause 218 Interpretation 24
Omit the definition of Arbitration Act from clause 218 (1). Insert instead: 25
Arbitration Act means the Commercial Arbitration Act 1984, as 26
in force immediately before its repeal by the Commercial 27
Arbitration Act 2010. 28
Page 50
Commercial Arbitration Bill 2010
Amendment of Acts and regulations Schedule 2
2.15 Poultry Meat Industry Regulation 2008 1
Clause 12 Committee's functions with respect to dispute resolution 2
Omit "Commercial Arbitration Act 1984" from the definition of arbitration in 3
clause 12 (5). 4
Insert instead "Commercial Arbitration Act 2010". 5
2.16 Roads Act 1993 No 33 6
Section 226 Claims for compensation 7
Omit "Commercial Arbitration Act 1984" from section 226 (2). 8
Insert instead "Commercial Arbitration Act 2010". 9
2.17 Strata Schemes (Leasehold Development) Act 1986 No 219 10
Sections 37 and 80 11
Omit "Commercial Arbitration Act 1984" wherever occurring from 12
section 37 (3) (a) and section 80 (14) (a). 13
Insert instead "Commercial Arbitration Act 2010". 14
2.18 Supreme Court Act 1970 No 52 15
Section 101 Appeal in proceedings before the Court 16
Omit "Commercial Arbitration Act 1984" from section 101 (2) (i). 17
Insert instead "Commercial Arbitration Act 2010". 18
2.19 Transport Administration Act 1988 No 109 19
Schedule 6A Powers relating to rail infrastructure facilities and land 20
Omit "Commercial Arbitration Act 1984" from clause 12 (2). 21
Insert instead "Commercial Arbitration Act 2010". 22
2.20 Water Industry Competition (Access to Infrastructure 23
Services) Regulation 2007 24
Clause 11 Application of regulations under the IPART Act 25
Omit "Commercial Arbitration Act 1984". 26
Insert instead "Commercial Arbitration Act 2010". 27
Page 51
Commercial Arbitration Bill 2010
Schedule 2 Amendment of Acts and regulations
2.21 Water Industry Competition Act 2006 No 104 1
[1] Section 40 Access determinations 2
Omit "Commercial Arbitration Act 1984" from section 40 (4). 3
Insert instead "Commercial Arbitration Act 2010". 4
[2] Section 46 Sewer mining determinations 5
Omit "Commercial Arbitration Act 1984" from section 46 (4). 6
Insert instead "Commercial Arbitration Act 2010". 7
Page 52
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