A term preserving a statutory right of appeal from an arbitral award cannot be implied into an arbitration agreement merely because the parties entered into the agreement under an 'opt out' legislative regime and did not opt out, where the legislation subsequently changed to an 'opt in' regime. The failure to opt out does not equate to a positive agreement to have a right of appeal. Parties to pre-2012 arbitration agreements in South Australia who wish to preserve appeal rights under the 2011 Act must expressly agree to opt in under section 34A(1)(a). The court also raised, without finally deciding, significant doubt about whether a ground of appeal based solely on inadequacy of an arbitrator's reasons can satisfy the leave criteria in section 34A(3).
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