Commercial Arbitration Act 2017

This Act is the Commercial Arbitration Act 2017.

The paramount object of this Act is to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense.

This Act aims to achieve its paramount object by—

enabling parties to agree about how their commercial disputes are to be resolved (subject to subsection (3) and such safeguards as are necessary in the public interest); and

providing arbitration procedures that enable commercial disputes to be resolved in a cost effective manner, informally and quickly.

This Act must be interpreted, and the functions of an arbitral tribunal must be exercised, so that (as far as practicable) the paramount object of this Act is achieved.

Subsection (3) does not affect the application of the Legislation Act, section 139 for the purposes of interpreting this Act.

Note The Model Law includes a provision binding the Crown. The provision is unnecessary in the ACT (see Legislation Act, s 121).

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.

For example, the signpost definition ‘arbitration agreement—see section 7.’ means that the term ‘arbitration agreement’ is defined in that section and the definition applies to this Act.

Note 2 A definition in the dictionary applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

In this section:

note includes material enclosed in brackets in section headings.

Note Some sections of this Act contain bracketed notes under their headings (eg Model Law art 1) drawing attention to equivalent or comparable (though not necessarily identical) provisions of the UNCITRAL Model Law on International Commercial Arbitration.

Part 1 General Provisions

(Model Law art 1)

This Act applies to domestic commercial arbitrations.

Note The International Arbitration Act 1974 (Cwlth) covers international commercial arbitrations and the enforcement of foreign arbitral awards.

The provisions of this Act, except section 8, section 9, section 17H, section 17I, section 17J, section 35 and section 36, apply only if the place of arbitration is in the ACT.

An arbitration is domestic if—

the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in Australia; and

the parties 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; and

it is not an arbitration to which the Model Law (as given effect by the International Arbitration Act 1974 (Cwlth)) applies.

For subsection (3)—

if a party has more than 1 place of business, the place of business is that which has the closest relationship to the arbitration agreement; and

if a party does not have a place of business, reference is to be made to the party’s habitual residence.

This Act does not affect any other Act by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Act.

Subject to subsection (5), this Act applies to arbitrations provided for in any other Act as if—

the other Act were an arbitration agreement; and

the arbitration were pursuant to an arbitration agreement; and

the parties to the dispute which, by virtue of the other Act, is referred to arbitration were the parties to the arbitration agreement;

except in so far as the other Act otherwise indicates or requires.

Note 1 A note to the model law states that the term ‘commercial’ should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business co-operation; carriage of goods or passengers by air, sea, rail or road.

Note 2 This section differs from the Model Law to the extent necessary to apply art 1 as incorporated in this Act to domestic commercial arbitrations. Section 40 contains provisions that also relate to the application of this Act.

(Model Law art 2)

[omitted]

Note This section differs from the Model Law to the extent that the definitions in art 2 (1) are set out in the dictionary to this Act.

Where a provision of this Act, except section 28, leaves the parties free to determine a certain issue, such freedom includes the right of the parties to authorise a third-party, including an institution, to make that determination.

Where a provision of this Act refers to the fact that the parties have agreed or that they may agree or in any other way refers to an agreement of the parties, such agreement includes any arbitration rules referred to in that agreement.

Where a provision of this Act, other than section 25 (1) (a) and section 32 (2) (a), refers to a claim, it also applies to a counter‑claim, and where it refers to a defence, it also applies to a defence to such counter-claim.

(Model Law art 2A)

Subject to section 1C, in the interpretation of this Act, regard is to be had to the need to promote, so far as practicable, uniformity between the application of this Act to domestic commercial arbitrations and the application of the provisions of the Model Law (as given effect by the International Arbitration Act 1974 (Cwlth)) to international commercial arbitrations and the observance of good faith.

Note This section differs from the Model Law. Art 2A (1) has been changed as a consequence of the application of the Act to domestic (instead of international) commercial arbitrations. Art 2A (2) is omitted because it is covered by the provision referred to in section 1C (4). Subsections (3) and (4) reflect the International Arbitration Act 1974 (Cwlth), s 17.

[omitted]

Without limiting subsection (1), in interpreting this Act, reference may be made to documents of—

the United Nations Commission on International Trade Law that relate to the Model Law; and

the Commission’s working groups for the preparation of the Model Law.

Subsection (3) does not affect the application of the Legislation Act, section 141 (Non-legislative context generally) or section 142 (Non‑legislative context—material that may be considered) for the purposes of interpreting this Act.

(Model Law art 3)

Unless otherwise agreed by the parties—

any written communication is taken to be received if—

it is delivered to the addressee personally; or

it is delivered to the addressee’s place of business, habitual residence or mailing address; or

if none of these can be found after making a reasonable inquiry—it is delivered to the addressee’s last-known place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it; and

the communication is taken to have been received on the day it is delivered.

The provisions of this section do not apply to communications in court proceedings.

(Model Law art 4)

A party who knows that any provision of this Act from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating the party’s objection to such non‑compliance without undue delay or, if a time-limit is provided for stating the party’s objection, within such period of time, is taken to have waived the party’s right to object.

(Model Law art 5)

In matters governed by this Act, no court must intervene except where so provided by this Act.

(Model Law art 6)

Subject to subsection (2), the functions referred to in the following sections must be performed by the Supreme Court:

section 11 (3) and (4);

section 13 (4);

section 14 (2);

section 16 (9);

section 17H, section 17I and section 17J;

section 19 (6);

section 27, section 27A, section 27B, section 27H, section 27I and section 27J;

section 33D, section 34 and section 34A.

If—

an arbitration agreement provides that the Magistrates Court is to have jurisdiction under this Act; or

the parties to an arbitration agreement have agreed, in writing, that the Magistrates Court is to have jurisdiction under this Act and that agreement is in force;

the functions are to be performed, in relation to that agreement, by the Magistrates Court, as the case requires.

Note This section differs from the Model Law to the extent that it relates to functions conferred on the court with respect to domestic commercial arbitrations that are not referred to in the Model Law.

Part 2 Arbitration agreement