Commercial Arbitration Act 2010

This Act is the Commercial Arbitration Act 2010.

This Act commences on a day or days to be appointed by proclamation.

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 section 33 of the Interpretation Act 1987 for the purposes of interpreting this Act.

This Act applies to domestic commercial arbitrations.

Note—

The International Arbitration Act 1974 of the Commonwealth covers international commercial arbitrations and the enforcement of foreign arbitral awards.

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

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 of the Commonwealth) applies.

For the purposes of subsection (3):

if a party has more than one 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.

Model Law note—

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—

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.

In this Act:

arbitral tribunal means a sole arbitrator or a panel of arbitrators.

arbitration means any domestic commercial arbitration whether or not administered by a permanent arbitral institution.

arbitration agreement—see section 7.

confidential information, in relation to arbitral proceedings, means information that relates to the arbitral proceedings or to an award made in those proceedings and includes the following:

the statement of claim, statement of defence and all other pleadings, submissions, statements or other information supplied to the arbitral tribunal by a party,

any information supplied by a party to another party in compliance with a direction of the arbitral tribunal,

any evidence (whether documentary or otherwise) supplied to the arbitral tribunal,

any notes made by the arbitral tribunal of oral evidence or submissions given before the arbitral tribunal,

any transcript of oral evidence or submissions given before the arbitral tribunal,

any rulings of the arbitral tribunal,

any award of the arbitral tribunal.

disclose, in relation to confidential information, includes publishing or communicating or otherwise supplying the confidential information.

domestic commercial arbitration—see section 1.

exercise a function includes perform a duty.

function includes a power, authority or duty.

interim measure—see section 17.

Model Law means the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended by the United Nations Commission on International Trade Law on 7 July 2006).

party means a party to an arbitration agreement and includes:

any person claiming through or under a party to the arbitration agreement, and

in any case where an arbitration does not involve all of the parties to the arbitration agreement, those parties to the arbitration agreement who are parties to the arbitration.

the Court means, subject to section 6 (2), the Supreme Court.

Note—

The definitions of arbitration agreement, confidential information, disclose, domestic commercial arbitration, exercise, function, interim measure, Model Law, party and the Court are not included in the Model Law.

Note—

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of 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 sections 25 (1) (a) and 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.

Notes (other than the Model Law note to section 1) included in this Act do not form part of this Act.

Note—

This provision is not included in the Model Law.

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 of the Commonwealth) 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 section 17 of the International Arbitration Act 1974 of the Commonwealth.

Without limiting subsection (1), in interpreting this Act, reference may be made to the documents relating to the Model Law of:

the United Nations Commission on International Trade Law, and

its working groups for the preparation of the Model Law.

Subsection (3) does not affect the application of section 34 (Use of extrinsic material in the interpretation of Acts and statutory rules) of the Interpretation Act 1987 for the purposes of interpreting this Act.

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 at 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 so delivered.

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

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.

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

The functions referred to in sections 11 (3) and (4), 13 (4), 14 (2), 16 (9), 17H–17J, 19 (6), 27–27B, 27H–27J, 33D, 34 and 34A are, subject to subsection (2), to be performed by the Supreme Court.

If:

an arbitration agreement provides that the District Court or Local Court is to have jurisdiction under this Act, or

the parties to an arbitration agreement have agreed in writing that the District Court or Local 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 District Court or Local 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.

An arbitration agreement is 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 may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

The arbitration agreement must be in writing.

An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means.

The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained in it is accessible so as to be useable for subsequent reference.

In this section:

data message means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.

electronic communication means any communication that the parties make by means of data messages.

Furthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.

The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract.

Note—

This section is substantially the same as Option 1 set out in Art 7 of the Model Law.

A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party’s first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

Where an action referred to in subsection (1) has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.