Attorney General Robert McClelland has recommended that the new Australian Centre for International Commercial Arbitration be given the power to appoint arbitrators in disputes. The powers would be available to the centre in circumstances where parties cannot agree upon an arbitrator or a party fails to appoint an arbitrator. Previously, only the courts performed this function in Australia.

Since the centre officially opened in August this year it has hosted 25 arbitration cases, both domestic and international. Domestic arbitration is also likely to be affected by a case currently before High Court, which is reviewing a NSW Supreme Court ruling, which decided that detailed reasons in arbitration cases are not needed. The Victorian Court of Appeal had previously ruled that arbitration decisions were required to give detailed reasons for the decision.

Dispute resolution partner at Mallesons Stephen Jaques, Max Bonnell, said arbitration professionals such as himself were eager to see the High Court favour the NSW decision. “Arbitration practitioners have become concerned that domestic and international arbitration are subject to different laws in Australia,” he said.

The United Nations Commission on International Trade Law’s Model Law on International Commercial Arbitration, which has been used as a guide for the new Commonwealth arbitration act, does not have requirements for arbitrators to give detailed reasons for their decisions, said Bonnell, whereas the Victorian Court of Appeal does. “The Victorian system is expecting the same of arbitrators as is expected of Supreme Court judges,” he said. “One of the problems historically with arbitration in Australia is that legislators have tried to duplicate the court process and not utilised the flexibility that arbitration offers.” 

Bonnell said that if arbitrators were required to give the same level of detail in their decisions [as courts], this would cause the whole process to be slower and more costly. “Part of the attraction for many parties in going to arbitration is that it should be faster and more efficient than going to court,” said Bonnell.

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