Separate written agreements between each party to an arbitration and the arbitrator do not constitute an 'exclusion agreement' in writing between the parties under s.40(1) of the Commercial Arbitration Act 1985 (NT), even where each party agrees to accept the award as 'final and binding'. However, if parties do agree in writing between themselves that an award will be 'final and binding', this suffices as an exclusion agreement without specific reference to the Act. The arbitration commences when a valid notice of dispute is given invoking the arbitration process, not when the arbitrator accepts appointment. The discretion to grant leave to appeal is to be exercised after consideration of all the circumstances of the case; the Nema guidelines are useful but not determinative.
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