International Commercial Arbitration and Australia Professor Doug Jones AM Head of Clayton Utz International Arbitration Group 2 March 2007

Overview of paper Nature and status of arbitration in Australia Arbitral legislation and rules Treatment by courts Arbitral institutions The ACICA Arbitration Rules Recent developments: investor-state arbitration

Arbitral legislation and rules International Arbitration Act 1974 (Cth) UNCITRAL Model Law (annexed to IAA) New York Convention (annexed to IAA) ICSID Convention (annexed to IAA) Commercial Arbitration Acts

Enforcement of arbitral awards Australia is a signatory to the New York Convention Foreign awards may be enforced under: IAA s 8 based on art V of Convention (awards made in a Convention country) Model Law art 35 (awards not made in a Convention country) Australian courts have an excellent record of enforcement But an interlocutory/procedural order of the tribunal may not be an "award" for enforcement purposes

Arbitral institutions in Australia International representation: LCIA ICC CIArb Local bodies ACICA - international commercial arbitration ACDC - domestic arbitration

Arbitral institutions in Australia (2) ACICA Aims to support and facilitate international arbitration Maintains panel of international arbitrators and list of experienced practitioners Supplies info on arbitration agreements, rules and law Educational activities Supported by leading law firms and Commonwealth government ACICA Arbitration Rules released July 2005

ACICA Arbitration Rules Founded on well-tested rules with worldwide usage Based on UNCITRAL Rules and influenced by new Swiss Rules of International Arbitration Simple and user-friendly ACICA Model Arbitration Clause

ACICA Arbitration Rules (2) Notable features ACICA decides number of arbitrators absent parties' agreement Multiple parties must act jointly in appointing arbitrators Interim measures Expanded definition Criteria for ordering Provisions for modification, suspension and termination of an interim measure

ACICA Arbitration Rules (3) Notable features (cont'd) Confidentiality - overcoming Esso v Plowman Must have regard to (but not bound to apply) IBA Rules on Evidence Selection of procedural rules does not amount to opting-out of the Model Law

ACICA Arbitration Rules (4) Role of ACICA under Rules Extends periods of time prior to constitution of tribunal Receives Notice of Arbitration and Answer Provides facilities and assistance at request of parties Decides number of arbitrators if parties cannot agree Role in appointment of arbitrators Determines challenges to arbitrators Role in determining arbitrators' fees Maintains Trust Account

Investor-state arbitration Provided for under BITs and free trade agreements But used less in agreements between developed countries e.g. AUSFTA Arbitration often under ICSID but far from uniform Australia party to 20 BITs including with European countries Romania, Czech Republic, Poland, Hungary, Lithuania Not yet in force: Turkey

Conclusions Arbitration the preferred way of resolving international disputes, especially for investor-state disputes Investor-state disputes: potentially huge impact on international arbitration and foreign investment Australia has an important role Good location for international arbitration Strategic position in Asia and familiarity with both Europe and Asia ACICA Rules

International Commercial Arbitration and Australia Professor Doug Jones AM Head of Clayton Utz International Arbitration Group 2 March 2007