Commercial Arbitration in Australia
ACICA Book Launch Event for Doug Jones and Janet Walker, Sydney
I acknowledge the Gadigal people of the Eora nation and pay my respects to their elders past, present and emerging.
It is an honour to be asked to speak at the launch of this important work on arbitration in Australia.
As I said in my foreword to this edition, the addition of Professor Janet Walker as an author has undoubtedly brought a different dimension to the work. Already the First and Second Editions were works of great erudition and thoroughness by a doyen of the Australian and international arbitration profession, Professor Doug Jones. In the foreword I said the following:
A work of annotation of statutes such as this requires extensive citation of many cases, but also, to be truly valuable, requires the expression of insight and understanding of those cases and the major thrust and drift of jurisprudence. It is the latter that allows an annotation and commentary to become a true text on the subject. That has been the achievement of the authors. They have brought their experience and scholarship to the review of Australian jurisprudence and its place in the unified common law and civilian world of arbitration. For instance, it would be a challenge for anyone to find a better and more complete discussion of the arbitration agreement than in the section in the Third Edition dealing with important Australian cases and placing them in the context of the jurisprudence of England and Wales, Hong Kong, Singapore, Italy, Germany, France, Bulgaria and the United States.
Let me say a few words about arbitration, dispute resolution, the courts and the law. I do so neutrally, if I may put it that way, finishing up as a federal judge as I must in a little over nine months.
For a long time, arbitration and curial litigation have been seen as opposed or as competitors, engaging broadly different personnel. In a sense, that tension was understandable as arbitration sought to make inroads in a somewhat protected and insular, though well paid and busy, litigation profession in Australia.
But the work over three decades by people with a vision for arbitration in this country – Professor Jones foremost among them, some keen sighted Attorneys-General – the Honourable Robert McClelland and the Honourable John Hatzistergos, and enthusiastic Chief Justices – Chief Justice Spigelman, Chief Justice Warren and Chief Justice Martin among them is to be recognised. The introduction of the Model Law into uniform State legislation, and important reforms of the International Arbitration Act 1974 (Cth) have laid a common legislative foundation for the work of arbitration in this country. The existential threat of a misconceived judicial power argument and attack failed in the High Court.
The long slow process of harmonisation of court rules is underway. As I said in the foreword:
A continental federated legal system with six States and two Territories and one national Commonwealth poses challenges of harmonisation and uniformity (the difference between the two being important). But there is underlying strength in the existence of sophisticated and vibrant legal and commercial centres that face the world from different corners of a sprawling continent. That potential for strength from diversity must be accompanied, if it is to flower, by harmonised approaches, and, where possible or practicable uniform approaches to dealing with central problems. Commerce in Australia and internationally demands this. The work of ACICA as well as arbitral and ADR organisations around the country attest to the recognition of that need for co-operation.
There is a standing committee that brings together the superior courts and representative of ACICA.
Yet there can be detected a falling off of energy and will. Perhaps the likes of me are to blame. But the development of Australian dispute resolution as a significant service profession has slipped from political view. The last Commonwealth Attorney-General to champion these issues was in office over a decade ago. Without that political insight and will (that was held and exhibited by Robert McClelland) the task is hard. Judges and Chief Justices have their demanding day jobs to attend to. It will always fall to the profession to maintain the fight.
In recent years, international commercial courts have emerged in a manner that is both important and maintainable. They are gaining traction. The vision of Chief Justice Menon in Singapore is the leading example. But there has been no political will in this country to create one. There is a constitutional foundation for the Commonwealth to do so. I gave a paper in 2019 at a seminar in honour and memory of the late Professor Leslie Zines on the topic. Use of State and Territory Supreme Courts will always lack a national character. That is not a reflection or criticism of their skill and competence which is real. But simply expressing barely concealed self-satisfaction of the quality of one’s domestic court will not bring international parties to a country where there is no “law of Australia”. Anyone who has tried to explain law in federal jurisdiction to an international client will understand the problem: Commonwealth and State Acts, section 109 of the Constitution, the common law of Australia, and the operation of sections 79 and 80 of the Judiciary Act 1903 (Cth).
I spoke last evening at the launch of a history by Professor David Barker of the first 15 years of the Australian Academy of Law and its work. I said there that the development of a bespoke “commercial law of Australia” available to be adopted by international parties as a basis for their contract could be an ongoing work project for the Australian Academy of Law.
The arbitration community should make it its business to engage in partnership with the Academy of Law to develop and broaden the legal foundation of an Australian commercial law fit for export.
Also, it is time to view Australian courts and arbitration as potentially symbiotic or complementary. They are not enemies. There is no judicial or curial virus that will infect arbitration. The challenge of complex 21st century disputes is met best with multi-faceted and skilled dispute resolution reaching across courts, arbitral institutions, mediation and conciliation. Tools for courts such as the use of arbitrators, referees and assessors to help break up and make more manageable large disputes reveals the potential for integrated dispute resolution.
Let me illustrate by referring to some provisions in the Federal Court of Australia Act 1976 (Cth) (see ss53A and following) that have been discussed in a recently issued practice note on Commercial Arbitration. Assume two parties have a dispute: They may have an arbitration agreement, they may not. The dispute is likely to involve a third party who is not a party to any arbitration agreement between them. Assuming federal jurisdiction (and a State court with similar provisions would not have this limitation) the two can begin in the Court although agreeing to arbitrate ultimately between them, use long arm jurisdiction to join the other party, and then seek to agree to arbitrate and obtain an order under section 53A of the Federal Court of Australia Act 1976 (Cth). In that reference to arbitration the parties could choose the Model Law and simply leave the jurisdiction of the Court, or choose the arbitral regime pursuant to the provisions of the Act providing for appeals on questions of law. Or, if they cannot agree with the third party to send the matter out to arbitration by consent, the parties can seek an order (in respect of which consent is not necessary) for a reference of the whole dispute to a referee. In that order for a referee (being a person who would be fit to be an arbitrator), the Court could mimic the best arbitration procedures and practices possible.
The length of a legal generation is about 7 years. The failure to pass on by oral tradition the best methods of case management and techniques of resolution can be very damaging.
It was nearly 40 years ago when Andrew Rogers rampaged through the commercial list initiating reforms to procedures and behaviour. In the early or mid 1980s, he introduced a new summons form, did away with pleading and required parties in the summons to state what issues were suitable for a referee. Yet, in the period since the introduction of the National Court Framework in the Federal Court from 2014, the Court has struggled to have the profession understand that there is nothing new in the concise statement reform. Indeed I have had real difficulty in persuading some judges of the court that the parliament and the executive and the public simply will not in the future stand for (and nor should they stand for) judges hearing long protracted cases, often involving scientific, accounting or other technical expertise, taking judges offline for 6, 9, 12, 24 months with exceptionally heavy judgment writing responsibilities, when the hearing could be broken up with an imaginative use of tools such as references.
Why am I speaking on this at a book launch for an arbitration book? Because dispute resolution - ADR, expert adjudication, mediation, arbitration, med-arb, curial litigation are all features of a world justice system. They all relate to each other. They have their (important) differences; but there are symbiotic relationships that can be recognised. Professor Jones, for instance, is a judge of the Singaporean International Commercial Court.
If Australia as a nation and its constituent law areas are, as a whole, or individually, to take its place and their places conformable with the skill here, the energy must be maintained and the political will be re-invigorated.
After over 20 years as a judge and with the experience of jurisdictions and legal systems around the world I can say that Australian judges, arbitrators, barristers and solicitors are excellent and equal of any around the world. However, some do not raise their eyes beyond the local. Energy should be maintained to do so and to enliven the political will to see progress in the areas to which I have referred. May I finish by formally launching the book and congratulating the authors for their fine work.
As I said in the foreword: This work, a work of great scholarship and insight, beautifully written, provides Australian and international practitioners with a first-rate exposition of arbitration that showcases the achievements and richness of Australian arbitration practice.
James Allsop
