Commercial Arbitration

Australia

Max Bonnell, Beth Cubitt, Peter Megens and Daisy Mallett

King & Wood Mallesons

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?

    Australia is a signatory to the New York Convention and made no reservations to its accession. The New York Convention was implemented into Australian law in 1975 through the International Arbitration Act 1974(Cth) (the Act). The Act permits recognition and enforcement of an award only if the award was made in a convention country or where the party seeking the enforcement is either domiciled or ordinarily resident in Australia or another convention country.

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?

    Australia has ratified the Convention on Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) (1991).

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?

    International arbitration proceedings in Australia are governed by the Act. The Act is based on the UNCITRAL Model Law and adopts the majority of the 2006 amendments to the Model Law. The Act applies to all international arbitral proceedings with their seat in an Australian state or territory and to the recognition and enforcement of foreign arbitral awards.

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?

    The Australian Centre for International Commercial Arbitration (ACICA) is an international arbitral institution based in Australia and it acts as appointing authority (see question 21). The Institute of Arbitrators and Mediators Australia (IAMA) also acts as appointing authority.

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?

    International arbitrations can be conducted in Australia under the rules of foreign arbitral institutions.

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?

    The Federal Court and the state Supreme Courts of New South Wales and Victoria have specialist arbitration lists or specialist arbitration judges with experience in arbitration.

    7. Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?

    An arbitration agreement must be in writing to be valid and enforceable, and an arbitration agreement will be construed to be in writing where the agreement (which can be oral or by conduct) is recorded in any form, including in an electronic communication (Option 1, Article 7 of the Model Law). The arbitration agreement can cover future disputes.

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?

    Most commercial disputes arising out of a contract containing a valid arbitration agreement will be arbitrable. Disputes concerning consumer protection, competition law and intellectual property rights per se have traditionally been held to be non-arbitrable due to their subject matter. However, in recent times Australian courts have taken a broader and more flexible approach to the interpretation of arbitration agreements with the aim of referring as many claims to arbitration as possible (Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45). For example, intellectual property disputes are now considered to be arbitrable to the extent that they do not involve issues of validity of registered right.

    Criminal prosecutions, bankruptcy and insolvency and family law are non-arbitrable subject matter.

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?

    A third party usually cannot be bound by an arbitration agreement absent its consent.

    The circumstances in which a third party may be joined as a party to an arbitration are strictly limited (for example in cases of fraud).

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?

    Parties can opt-in to provisions of the Act which empower the tribunal to consolidate two or more arbitration proceedings (section 24 the Act).

  11. 11.Groups of companies
    Is the “group of companies doctrine” (or any other method of piercing the corporate veil) recognised in your jurisdiction?

    Australian courts are reluctant to recognise the group of companies doctrine. Generally, group companies will only be held to be parties to the arbitration agreement where there is express agreement to this effect.

    In some limited circumstances Australian courts may pierce the corporate veil, such as where the company structure is being used to perpetrate a fraud or to enable a person to avoid an existing legal obligation (Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449).

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?

    Australian courts treat arbitration clauses as separable from the contract. As such, the arbitration agreement will not be considered invalid or ineffective simply because the contract in which it is contained is invalid or ineffective.

  13. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?

    The principle of competence-competence is recognised in Australia, with the result that the tribunal has competence to decide upon matters related to the existence, validity and effectiveness of the arbitration agreement. Where the tribunal has ruled on its jurisdiction as a preliminary question, a party can request the courts to decide the issue (Article 16(3) of the Model Law).

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?

    The Act contains a number of provisions which parties must expressly opt into or out of in order for them to apply or not apply, as the case may be. The opt in provisions include consolidation and confidentiality (sections 23C-G and section 24 of the Act). The opt out provisions include those relating to the inspection of evidence, security for costs, courts powers to issue subpoenas and other matters (sections 23, 23A-B, 23H, 23J-K and sections 25-27 of the Act).

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?

    Institutional arbitration is more common than ad hoc international arbitration. Where international arbitrations are ad hoc, the UNCITRAL Rules are commonly used.

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.

    The Act contains no procedure for the appointment of arbitrators in a multi-party dispute. As such, parties should agree on a set of arbitration rules which set out a procedure for appointing arbitrators - such as the ACICA arbitration rules (Article 11).

    17. Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?

    Generally, arbitration agreements will specify the requirements for commencing arbitral proceedings, or incorporate arbitral rules which specify such procedure. Ordinarily, proceedings are initiated by notice of arbitration (Article 21 of the Model Law).

    Each Australian State and Territory has its own statute of limitations. The limitation period will depend on the nature of the cause of action which is the subject of the dispute.

    18. Choice of Law

  18. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

    The tribunal is required to determine the dispute in accordance with the substantive law chosen by the parties (not in accordance with the conflict of laws regime of that legal system). If no law is agreed (expressly or impliedly), the tribunal will apply the conflict of law rules applicable at the seat of the arbitration.

    19. Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?

    An arbitrator is required to be a person with full legal capacity, impartial and independent (Article 12(2) of the Model Law). A party may challenge the appointment of an arbitrator if there are justifiable doubts as to their impartiality or independence (Article 12 of the Model Law). Australian law places no limitations on arbitrators’ professional qualifications, nationality or residence.

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?

    Non-nationals can act as arbitrators where the seat of arbitration is within Australia or where hearings are held in Australia. The parties can, by agreement, prohibit the appointment of non-nationals as arbitrator.

    Non-national arbitrators will be subject to the immigration requirements of the Australian government. Business visas for visits less than three months can be obtained subject to certain requirements (see Australian Government Department of Immigration and Citizenship for further details, www.immi.gov.au).

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?

    ACICA is the sole authority to appoint an arbitrator in an international arbitration in Australia where the parties have not agreed upon a process for the appointment (regulation 4, International Arbitration Regulations 2011(Cth)). Similarly, where the parties have agreed upon a procedure for the appointment of an arbitral tribunal, but this process has broken down, ACICA will be the appointing authority.

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?

    An arbitrator is not liable for anything done or omitted to be done by the arbitrator in good faith in his or her capacity as arbitrator (section 28 of the Act). However, arbitrators will be liable for fraud. Similar immunity extends to an entity that appoints, or fails or refuses to appoint a person as arbitrator, such that that entity is not liable in relation to that appointment or failure to appoint if it was done in good faith.

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?

    Arbitration pursuant to the ACICA Rules requires a deposit from each party as an advance and the tribunal will not deliver the award to the parties until ACICA certifies that there are no fees owed to it. IAMA provides a similar service.

    24. Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?

    The Act amends the application of the Model Law to establish that there will be justifiable doubts as to the impartiality or independence of an arbitrator ‘only if there is a real danger of bias on the part of the arbitrator in conducting the arbitration’ (section 18A(2) of the Act). This raises the bar parties must reach in order to challenge an arbitrator, from establishing an appearance of bias to requiring that the challenging party put forward facts to prove a ‘real danger’ of bias impairing the arbitrator’s exercise of their judgment in the arbitration.

    Where the parties have agreed a procedure for challenges in the arbitration agreement or pursuant to arbitral rules, those procedures should be followed. Where there is no such agreement, the challenge is heard by the arbitral tribunal. If the challenge procedure is unsuccessful, the challenging party may request the courts to decide the challenge. A challenge to the courts is not subject to appeal.

    The IBA Guidelines on Conflicts of Interest in International Arbitration (the IBA Guidelines on Conflicts of Interest) are not binding, however they are referred to by arbitral tribunals and institutions. Parties may also make reference to the IBA Guidelines on Conflicts of Interest in national courts, but there are no reported cases at the time of writing where they have done so.

    25. Interim relief

  25. 25.Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    At the request of a party, a tribunal may award interim relief of a protective nature, unless otherwise agreed between the parties (Article 17 of the Model Law). Australian courts will also issue interim orders to assist or preserve the arbitral proceedings. Section 18B of the Act provides that Article 17B of the Model Law (directed at preliminary orders directing parties not to frustrate the purpose of an interim measure requested) is not applicable in Australia.

    Where proceedings are instituted by a party to an arbitration agreement against the other party to the arbitration agreement, in relation to a matter which is capable of settlement by arbitration, the court will stay the proceedings and refer the parties to arbitration (section 7(2) of the Act).

    Where a party attempts to institute proceedings in a foreign jurisdiction in breach of an arbitration agreement, Australian courts may grant an anti-suit injunction to restrain the foreign proceedings in favour of arbitration.

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?

    An arbitral tribunal may, at any time before the award is issued, order a party to pay security for costs (section 23K(1) of the Act). The tribunal must not make the order solely on the basis that the party is not ordinarily resident in Australia, or is a foreign corporation, or is a corporation with foreign management or control (section 23(K)(2) of the Act).

    27. Procedure

  27. 27.Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (e.g. general duties of the tribunal and/or the parties)?

    The mandatory rules applicable to arbitration are those set out in the Model Law, such as the requirement that the parties be treated with equality and be given a reasonable opportunity to present their case (Article 18 of the Model Law). The Act in section 18C clarifies that, in Australia, a party to arbitral proceedings is taken to have been given a full opportunity to present its case if it is given a reasonable opportunity to do so.

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?

    If a party to arbitral proceedings refuses to participate, or fails to comply with any orders of the tribunal, the tribunal may continue with the proceedings and issue an award without that party’s participation (section 23B of the Act). It remains open to the defaulting party to challenge the award subsequently on the usual grounds (see question 37). In certain circumstances, the other party to the arbitration may also seek court support, with the permission of the tribunal, to use court powers in aid of an arbitration (section 23 and section 23A of the Act).

  29. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?

    Parties usually submit written statements from factual and expert witnesses and the documentary evidence upon which they rely. Where there is an oral hearing, there is generally cross-examination of witnesses and experts, and limited, if any, examination-in-chief or direct examination.

    The parties and the tribunal are free to agree to the arbitration being subject to the IBA Rules on the Taking of Evidence in International Commercial Arbitration (the IBA Rules). It is becoming more common for tribunals to apply the IBA Rules (or use them as guidance), however, many Australian parties and tribunals expect disclosure to be as extensive as in national courts. There is now a move to push parties away from that approach towards a more streamlined approach to international arbitration.

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?

    The arbitral tribunal, or a party acting with the approval of the arbitral tribunal, may request the assistance of a court in taking evidence (Article 27 of the Model Law). Further, with the permission of the arbitral tribunal, a party may apply to a court to issue a subpoena requiring a person to appear before the tribunal or to produce documents (section 23 of the Act). Parties may opt-out of section 23 of the Act in the arbitration agreement or otherwise in writing (section 22).

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?

    Arbitrators are free to order parties to produce documents in the absence of any agreement to the contrary (Article 19(2) of the Model Law).

    The IBA Rules may be adopted by agreement between the parties or by the tribunal’s order. In practice, there is a tendency for Australian parties and arbitrators to seek more extensive disclosure, akin to the disclosure that would be provided by the national courts. This is ironic as, at the same time, national courts are seeking to narrow the disclosure allowed as part of an effort to contain costs.

    There is no legal basis upon which arbitrators can compel the production of documents by a non-party. Subpoenas issued by a court in response to a request under section 23(3) of the Act can be made returnable to the tribunal instead of the court.

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?

    Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. Where one party to the arbitration agreement requests an oral hearing, then an oral hearing must be held (Article 24 of the Model Law).

  33. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

    The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal (Article 20(1) of the Model Law). The arbitral tribunal may (unless otherwise agreed by the parties) meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents (Article 20(2) of the Model Law).

    34. Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?

    In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members. Questions of procedure may be decided by a presiding arbitrator, if so authorised by the parties or all members of the arbitral tribunal (Article 29 of the Model Law).

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?

    The arbitration agreement can limit the remedies which the arbitral tribunal may grant in the award. Australian courts have not considered whether a tribunal may award exemplary or punitive damages.

    A court may refuse to enforce an interim measure at the request of a party if the ‘interim measure is incompatible with the powers conferred upon the court’ (Article 17I(1)(b)(i) of the Model Law). There is no equivalent provision with respect to the final award. Otherwise, arbitral tribunals have broad powers to grant remedies.

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?

    Nothing in Australian law prohibits an arbitrator from giving a dissenting opinion. Where there is a three-member arbitral tribunal and the decision is not unanimous, dissenting opinions by one member of the tribunal are sometimes given.

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?

    The award must be made in writing and signed by the arbitrator or arbitrators and must state its date and the place of arbitration (Article 31 of the Model Law). In the case of arbitral tribunals with more than one arbitrator, the signatures of the majority of the arbitral tribunal will suffice, provided that the reason for the omitted signature is stated.

    The award must also state the reasons upon which it is based unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms (Article 31 of the Model Law). The Australian High Court, in the context of the former domestic NSW Commercial Arbitration Act, recently determined that arbitrators’ reasons must set out the facts, based on the evidence, and explain succinctly why they have reached their decision. Accordingly, a domestic arbitral award will not be invalid if the reasons given in the award are not to the same standard as would be required of a judge (Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37). This decision may well be a guide to how Australian courts will view the standard of reasons required in an international arbitral award.

  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?

    The tribunal is not required to deliver the award within a specified time period. A party may request the arbitral tribunal to correct any clerical errors or to give an interpretation of any specific point in the award within 30 days of receipt of the award (Articles 33(1)(a) and (b) of the Model Law).

    39. Costs and interest

  39. 39.Costs
    Are parties able to recover fees paid and costs incurred? Does the “loser pays” rule generally apply in your jurisdiction?

    The costs of an arbitration (including the fees and expenses of the arbitrator or arbitrators) are in the discretion of the arbitral tribunal (section 27(1) of the Act). Where an award does not address costs, a party may, within 14 days after receiving the award, apply to the arbitral tribunal for directions as to costs. The arbitral tribunal must then, after hearing submissions from any party who wishes to be heard, amend the award to make relevant directions.

    The ‘loser pays’ rule generally applies to judicial proceedings in Australia, and is commonly followed in arbitral proceedings. The ultimate discretion, however, remains with the tribunal. The Act provides that to the extent that any costs awarded have not been settled in the award, they can be taxed by the national court with jurisdiction to hear applications for the setting aside of the award (section 27(3) of the Act).

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?

    The tribunal can award interest, at a reasonable rate to be determined at its discretion (section 25(1) of the Act). The statutory right of the payment of interest will not apply to any amount upon which interest is payable as of right, for example by agreement (section 25(2)(b)). That right continues. There is nothing in the Act prohibiting the award of interest on costs. Nor is there anything in the Act prohibiting the payment of compound interest, but the Act itself does not provide for it.

    41. Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?

    A party may make an application to set aside an award in certain circumstances, which largely reflect the limited grounds for refusing enforcement of an award under sections 8(5) and 8(7) of the Act (Article 34 of the Model Law). The grounds are the very limited grounds set out in Article 34.

  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?

    In an enforcement application an award debtor may be able to resist enforcement of an award under the limited grounds available in sections 8(5) and 8(7) of the Act. Sections 8(5) and 8(7) of the Act incorporate the provisions of Article V of the New York Convention, which sets out the grounds upon which a court may refuse to enforce an award. Similar rights apply as a result of Articles 35 and 36 of the Model Law.

  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

    There is no Australian authority providing that Articles 34, 35 and 36 of the Model Law cannot be excluded. However, given that these articles include grounds relating to natural justice and fairness and the fundamental constitution or conduct of the arbitration and the arbitral tribunal, it is unlikely that an Australian court would readily allow the parties to derogate from that position.

    44. Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

    In any proceedings in which the enforcement of a foreign award is sought, the court may refuse to enforce the award if the respondent to the award proves that the award has been set aside by a competent authority of the court in which, or under the law of which, the award was made (section 8(5)(f) of the Act). The Act does not answer the question of whether a court must do so and it is a live issue as to whether an award may be enforced even if it has been set aside by the supervising court.

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?

    A party seeking enforcement of an arbitral award in Australia must demonstrate a prima facie case that the award creditor and debtor were parties to the arbitration agreement, in addition to complying with the formal requirements set out in Article IV of the New York Convention (IMC Aviation Solutions Pty Ltd v Altain Khuder LLC [2011] VSCA 248).

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

    The Act binds the Crown, and as such, a defence of state/sovereign immunity is not available to Australian government entities (section 2B of the Act). Australian courts will readily enforce awards against the Australian federal or state governments or entities.

    Where a foreign state is a party to an arbitration agreement, then, subject to any inconsistent provision in the agreement, the foreign state is not immune in a proceeding for the exercise of the supervisory jurisdiction of a court in respect of the arbitration, or immune from proceedings relating to the recognition or enforcement of an award made pursuant to arbitration (section 17(2) of the Foreign States Immunities Act 1985 (Cth)).

    47. Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?

    The confidentiality regime for arbitral proceedings is an opt-in regime (section 22(3) of the Act). As such, confidentiality will only apply if the parties to the arbitral proceedings agree that it applies. The common law will not imply an obligation of confidence into an arbitration agreement (Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) (1995) 183 CLR 10). Arbitration proceedings are, however, private and in most cases where institutional arbitration rules are used, the rules will provide for an opting in of confidentiality.

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?

    Confidentiality, where applicable, is broadly defined under the Act and includes information that relates to the arbitral proceedings or to an award made in the proceedings. Therefore, evidence produced and submissions filed in arbitrations are confidential information unless one of the exceptions applies. However, the confidentiality regime only applies if the parties to the arbitral proceedings agree that it applies (see question 47).

    There are certain instances in which Australian law requires a party to supply information or documents for other court proceedings, notwithstanding that they may be confidential (for example disclosure of documents may be ordered by subpoena) but generally the courts will recognise that documents produced for arbitration proceedings are, like documents produced for court proceedings, only to be used for those proceedings.

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

    Lawyers in Australia are subject to a range of professional obligations under various state and territory regulations. These obligations will apply regardless of whether the lawyer is acting as counsel or arbitrator in the proceedings. Any mandatory codes of practice applicable to lawyers in Australia may well apply to foreign lawyers appearing in Australia.

    Ordinarily, foreign lawyers conducting arbitrations in Australia will be subject to the ethical codes and professional standards of their home jurisdictions, although any mandatory codes of practice applicable to lawyers in Australia may well apply to foreign lawyers appearing in Australia.

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?

    The procedural framework of the arbitration is usually adapted to accommodate the expectations and preferences of the parties, subject to the mandatory procedural rules in the Act.

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