What is arbitration?
Commercial arbitration is the system for final determination of commercial disputes in a judicial manner by a private arbitrator(s) (who is often referred to as the “arbitral tribunal”) appointed for that purpose.
In 2010 all the States and Territories adopted a model law for domestic arbitration. In NSW (where I am based) arbitrations are governed by the Commercial Arbitration Act 2010 (NSW). International Arbitration is governed by the International Arbitration Act 1974 (Cth).
The Arbitrator’s decision is known as an award. An award is binding on the parties. It is enforceable, upon registration with the relevant court, as a judgment of the court. There are very limited rights to seek judicial review of the award.
Why choose me as your arbitrator?
My first career was as an industrial chemist. Over a 10 year period I had experience in water/wastewater, analytical laboratory instrumentation and also in the food industy. I worked both in industry and also in research.
I have practised as a commercial litigation lawyer since 1996 and as a barrister since 2006.
Along with a wealth of life experience, I bring my legal and technical skills to arbitration
Do I have to agree to arbitrate?
Yes, arbitration gets its authority from the consent of the parties. In many instances, commercial agreements contain enforceable arbitration clauses. Even if there is no arbitration clause, parties can agree to arbitrate their dispute.
Prior Agreement
The parties to a commercial contract may include an arbitration agreement stipulating that any disputes arising under the contract be resolved through commercial arbitration. The agreement may also stipulate the location of the arbitration and the manner of selecting an arbitrator.
A typical arbitration clause (this is the Resolution Institute one) will say something like: “Any dispute or difference whatsoever arising out of or in connection with this contract or the performance or non-performance of the obligations of the parties under it shall be submitted to arbitration in accordance with, and subject to, the Resolution Institute Arbitration Rules“
After the dispute arises
The parties can still agree (submit to) arbitration after a dispute has arisen by entering into an arbitration agreement. This agreement can be as simple as (and again this is from the Resolution Institute): “We the undersigned, agree to refer to arbitration under the Resolution Institute Arbitration Rules all disputes or differences arising out of or in connection with: [#insert brief description of contract, project or relationship under which disputes or differences have arisen or may arise]“. More complex agreements are possible.
Why would I agree to arbitration?
For many commercial disputes, arbitration is an excellent alternative to litigation. It offers a timely, private, less formal and cost effective approach for the binding determination of disputes. It provides the parties with greater control of the process than a court hearing.
Choice of arbitrator
The parties are able to choose their own arbitrator. Often the choice is based on knowledge or expertise in a particular area.
Arbitration is private
Arbitration is private and confidential between the parties. This is different to a court where hearings are held in public and there is a record of the proceedings being commenced.
Control of the process
Unlike a court, the parties can agree the rules which govern the process. Typically the parties adopt “arbitration rules” (see for example the Resolution Institute Arbitration Rules 2020). Often parties agree that the rules of evidence aren’t to be strictly applied.
The parties may agree on other procedural matters such as whether there should be time limits on oral evidence or whether the matter should be dealt with on the papers alone.