The CIArb Australia News December 2017 1
The CIArb Australia News
December 2017
www.ciarb.net.au 2 The CIArb Australian News December 2014 The CIArb Australian News December 2014 3
About Contents
The CIArb Australia News December 2017 us ISSN 2204-0684 Volume 4 Number 1
The Chartered Institute of Arbitrators (CIArb) article PAGe is the professional home of dispute resolvers. As an international not-for-profit organisation, President’s Report Caroline Kenny QC ...... 1 our mission is to promote the use of alternative Australian Arbitration Week: 5th International Arbitration Conference Kristian Maley...... 3 dispute resolution (ADR) as the Opening Address: 5th International Arbitration Conference preferred means of resolving disputes The Hon Wayne Martin AC, Chief Justice of Western Australia ...... 6 throughout the world. Address: 5th International Arbitration Conference The Hon Mark McGowan MLA, Premier of Western Australia...... 11 We pride ourselves on being a truly global network, with over Recent Trends in Maritime Arbitration Hazel Brewer, Partner, HFW ...... 25 16,000 members working in sectors as diverse as finance, Dispute Funding of Arbitration in the Energy Sector construction, oil and gas and agriculture in over 130 countries Nathan Landis, Senior Investment Manager, IMF Bentham ...... 31 worldwide. In addition to providing education, training and accreditation for arbitrators, mediators and adjudicators, CIArb Address: CIArb Australia Annual Dinner Master of Ceremonies acts as an international centre for practitioners, policymakers, Carson Scott, Chief Business Correspondent, Sky News Australia ...... 38 academics and businessmen. Keynote Address: CIArb Australia Annual Dinner We provide dedicated professional guidance to our members Alexis Mourre, President ICC International Court of Arbitration ...... 41 through world-renowned training, conferences, events, research 2017 CIArb Australia Essay Winner: James Kefford ...... 49 and publications. We can ensure that all of our members have access to CIArb training and benefits, wherever they are in the Inaugural CIArb Australia Vis Pre-Moot ...... 55 world. Most importantly, CIArb’s international reputation and Keynote Address: 2017 CIArb Australia Business Lunch International Arbitration academic rigour provide our members with a powerful mark Justin Gleeson SC ...... 61 of quality assurance to help open doors. 2017 CIArb Australia and Federal Court Seminars ...... 71 The CIArb Australia is one of 40 branches offering institute members a prestigious, globally-recognised qualification CIArb Asia Pacific Diploma Course: A Student's Perspective and access to a global professional community and regular Kristina Herenda, Herenda Attorneys At Law ...... 81 networking opportunities. Visit www.ciarb.net.au 2017 Hong Kong Summit on Commercial Dispute Resolution in China...... 87 Keynote Address: 2nd Harbour Lecture Hong Kong Dr Gavan Griffith AO QC..... 90 CIArb Australia Presentation to China Law Society Delegation...... 92 OVER +16,000 9th CIArb Australia/Young Lawyers of NSW International Commercial Arbitration 16,000 CIArb has over 16,000 Moot 2017 Isabela Deveza, Lawyer, Pinsent Masons...... 98 MEMBERS members worldwide Casenote: Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170 Russell Thirgood & Erika Williams, McCullough Robertson ...... 103 Keynote Address: Introduction to International Arbitration Course 2017 +130 The Hon Justice Clyde Croft, Supreme Court of Victoria...... 109 Our members are based in over 130 countries across the world Current Issues in International Arbitration Mel Schwing, International Dispute Resolution Attorney...... 115 CIArb Australia Membership Update ...... 118 +40 Member Profile: John Wakefield ...... 121 6 There are over 40 CIArb branches CONTINENTS active in sixcontinents Publisher: Chartered Institute of Arbitrators (Australia) Limited | ACN 118 131 016 Editor: Gianna Totaro +250 Design: Creative Chaos Pty Ltd +250 COMMERCIAL Our members work in over All articles © 2017 The Chartered Institute of Arbitrators (Australia) Limited. Permission SECTORS 250 different commercial sectors to reproduce any item should be obtained by writing to the Editor, Gianna Totaro. 1 The CIArb Australia News December 2017 The CIArb Australia News December 2017 2
CAROLINE KENNY QC CIArb Australia President View Profile
2017 Diploma Course Dinner held at the Hong Kong Bankers Club on 27 October. President's Report Left to Right: Mrs Chou Sean Yu, Chou Sean Yu (Chairman CIArb Singapore), Mary Thomson (Chairperson CIArb East Asia), Richard Leung (Course Director), Wesley Wong SC (Solicitor General HKSAR), Francis Xavier SC PBM (Course Director), Anthony Houghton SC (CIArb Board of Trustees), Neil Kaplan CBE QC SBS and Caroline Kenny QC Welcome to the December 2017 edition of our flagship publication, The CIArb Australia News. ICCA 2018 first time be the host city of the accelerated routes to for Australian Arbitration fellowship and membership, we From 15 to 19 April 2018 Sydney Week. Now in its sixth year, will be also offering these courses s this is my first report In partnership with the national regarded given the focus on will host the biennial International the highlights of the week is once the new curriculum has as President of CIArb Council, and our CEO, Gianna Council for Commercial best practice. Other seminars the International Arbitration been confirmed. Australia since being Totaro, I will continue to deliver Arbitration (ICCA), the world’s will take place in Sydney, Conference, which will be held elected in May, I wish value for members and other largest international arbitration A Adelaide and Brisbane. on Wednesday 17 October 2018 Season’s Greetings to express what an honour and stakeholders in the profession congress. In partnership with CIArb at the Sofitel to be followed by the privilege it is to be given the and business community where HQ, we are sponsoring the Gala Finally, on behalf of all of us here 2018 Pre Vis Moot CIArb Australia Annual Dinner opportunity to lead this august arbitration is increasingly the Dinner. To be held on Tuesday, 17 CIArb Australia, I would like to to be held at No 35, featuring organisation, uniquely Australian process of choice to resolve April at the ICC Grand Ballroom, take this opportunity to thank you Due to the success of the Allan Myers AC QC, a Chancellor but an important cog in the commercial disputes. Darling Harbour, the event’s theme for your support and extend our inaugural CIArb Australia Pre Moot of the University of Melbourne, is Dinner under the Southern global arbitration network. As the following pages this year, the CIArb Australia leading international arbitrator best wishes for the festive season Stars and will provide an evening and the year ahead. Congratulations to my fellow demonstrate, CIArb Australia Young Members Group chaired and prominent businessman, who of fine dining and entertainment. has expanded its offerings will deliver the dinner address. Councillors, John Arthur (VIC), by CIArb Australia Councillor, Read more. Julia Dreosti (SA), Dr Stephen across Australia and around the Kristian Maley is once again The conference is organised by Asia Pacific. It is also pleasing to CIArb Australia in partnership with Lee (QLD), Kristian Maley organising a pre-moot event for 2018 Diploma in International note our branch’s membership the Business Law Section of the (WA), Dr Shane Monks (QLD), the Australian teams competing Commercial Arbitration Course Prof. Colin Roberts (WA) and continues to be on an upward Law Council of Australia and the in Vienna and Hong Kong. The From 28 July to 5 August 2018 Damian Sturzaker (NSW) trend and that globally, CIArb Australian Centre for International Caroline Kenny QC has now over 16,000 members. event is structured as a series of Perth will host CIArb’s flagship nine who were elected/re-elected Commercial Arbitration (ACICA). President day diploma course, the successful to Council 2017/2018. I wish state based rounds to be held in Federal Court of Australia completion of which leads to a Training and Accreditation to thank former Directors, Ian Brisbane, Sydney and Melbourne. and CIArb Australia globally recognised qualification in Nosworthy (SA), Julie Soars The winner of each state round Education and accreditation International Arbitration international commercial arbitration. will then compete in finals in continues to be the core activity (NSW) and Paul Menzies QC Seminars Preparations are well advanced of our Branch. In addition to the (NSW) for their service. The full Melbourne, culminating in a grand with support from international We launch our 2018 CPD Diploma course, I am pleased list of Councillors and Office final before a panel which includes: arbitral associations and prominent with the first seminar of the to announce, the 2018 CPD Bearers is listed here. The Hon Susan Crennan AC QC, faculty. Read more. successful international program will include an Award State Convenors are: Dr Vicky arbitration series to be held Neil Kaplan CBE QC SBS, and Writing Course, an Introduction 2018 Australian Arbitration Priskich (VIC), Beth Cubitt in Melbourne on 27 February. Dr Michael Pryles AO PBM to be to International Arbitration Week, Melbourne (WA), Julia Dreosti (SA), Jo In its third year, the seminars held in Melbourne on 1 March. course in Brisbane and the Delaney (NSW) and Dr Shane attract delegates from beyond From 15 October to 19 October Accelerated Route to Fellowship Monks (QLD). the membership and are highly 2018 Melbourne will for the in Melbourne. Following a review 3 The CIArb Australia News December 2017 The CIArb Australia News December 2017 4
its largest trading partner, in risk for inbound investment COURTS PUSHED TO acceding to the convention in into Africa. Professor Roberts DEVELOP INTERNATIONAL the near future. His Honour highlighted that investor-state COMMERCIAL LIST said that, rather than posing arbitration continues to evolve a threat to international in response to attacks on its commercial arbitration, the legitimacy, such as through Convention affirms state courts’ the Extractive Industries complementary role as “another Transparency Initiative. tile in a mosaic of international CIArb Australia Vice President, commercial dispute resolution, at James Healy, Kevin Nash, KRISTIAN MALEY the choice of the parties”. CIARB NATIONAL COUNCILLOR Deputy Registrar and Centre Following the Chief Justice’s DISPUTE RESOLUTION ASSOCIATE, JONES DAY, PERTH Director of SIAC, Jo Delaney of remarks, Dr Jeff Makholm of Baker & McKenzie and Matthew View Profile US-based NERA Economic Secomb of White & Case Brad Thompson Consulting kicked off a panel The Australian Financial Review participated in a panel discussion 23 November 2017 discussion on energy and on current issues facing parties resources disputes, outlining how Recently retired High Court chief justice and counsel. Significant issues Robert French is advocating the creation the ‘dismal science’ can assist mentioned included the tension of a new arena for settling international Australian Arbitration Week: 5th International in their resolution. Mr Bellas between party autonomy and commercial disputes in Australia based and Greg Steinepreis of Squire on co-operation between the nation's institutional rules, particularly superior courts. Patton Boggs confirmed that Arbitration Conference: International Arbitration in a in light of recent innovations Mr French said there was room for co- obtaining documentary evidence such as expedited procedure operation between state and national Changing Global Economy across borders remains a hot rules, and the challenges that courts to allow the development of an topic in arbitrating construction ‘mangled’ arbitration clauses international commercial list hosted by disputes arising from resources one jurisdiction but using the most expert present for arbitrators, parties, judges from around the country. projects. Multi-party issues such and state courts. he Australian arbitration has given rise to several major a global centre for energy and "This could be done at both trial and as consolidation and joinder also intermediate appellate level," he said of the community’s shift from a international arbitrations. resources law and business. continue to present challenges. In a panel chaired by the Hon proposed new court. city-based to a national Reflecting Perth’s emerging Justice John Gilmour of the "It could be applied to the determination Former CIArb Australia Board The conference also heard focus has been cemented role as a specialist arbitration Federal Court of Australia, of questions arising in the enforcement T Member, Ian Nosworthy, that Africa is increasingly a of awards and also provide a facility for at a landmark conference in Perth hub, Perth will host the Peter Mannion, Rio Tinto’s delivered the Welcome Address hot spot for both commercial judicial determination of international last week. 2018 Chartered Institute of General Manager of Marine Fleet on behalf the Law Council. In and investor state arbitration. commercial disputes." Arbitrators Asia Pacific Diploma Operations, arbitrator Peter The Fifth International Arbitration opening the conference, the In a panel discussion chaired Mr French made the comments after McQueen, Dr Pat Saraceni an International Arbitration Conference Conference: International in International Commercial head of Western Australia’s by CIArb Australia President, of Clifford Chance, and Hazel in Perth organised by the Law Council Arbitration in a changing global Arbitration, following programs in judiciary, the Hon Chief Justice Caroline Kenny QC, Vlad Brewer of HFW discussed of Australia, the Chartered Institute of economy on 21 November Wayne Martin AC, noted the Singapore (2016) and Hong Kong Movshovick of South African Arbitrators Australia and the Australian issues and recent trends in Centre for International Commercial was the centrepiece of the first (2017) As His Honour noted, over importance of the conference firm, Webber Wentzel highlighted maritime arbitration. The panel Arbitration. half the world’s population live Australian Arbitration Week, the and Australian Arbitration recent developments in African identified some future challenges Supreme Court of Western Australia chief within two hours of Perth’s time successor to Sydney Arbitration Week in promoting Australia arbitration, such as the newly- in this area, namely the Hague justice Wayne Martin told the conference zone. His Honour expects that Australia punched well below its weight Week held in previous years. The as an arbitral destination. His established China-Africa Joint Convention on the Recognition Perth’s new “state of the art” Arbitration Centre operating as a seat for international commercial conference was organised by the Honour highlighted the depth of and Enforcement of Foreign arbitration. arbitration and mediation venue, out of Johannesburg and Business Law Section of the Law arbitration experience among Judgments, the need to keep Justice Martin said Australia's federal within the recently completed Shanghai. Mr Movshovick noted Council of Australia, Chartered Australian lawyers both at home arbitration legislation up to date, structure, leading to nine different that arbitration is the preferred courts having the capacity to supervise Institute of Arbitrators (Australia) and abroad, suggesting that David Malcolm Justice Centre, and maintaining high standards will soon be available to parties. method for resolving disputes arbitration, and the possibility of divergent and the Australian Centre the prospects for Australia as for arbitrators. approaches emerging from the courts, was for International Commercial an arbitral seat ought to be Following the conference, in South Africa (except perhaps seen as a barrier. The final panel discussion, on the Arbitration (ACICA). bright. (In a similar vein, later the Chief Justice hosted a where state entities are involved). He said this had been overcome over the topic of third party funding, was in the conference Abhinav sundowner at the Centre, Mark Mordi of Aluko & Oyebode, past decade by a clear convergence of Energy and resources disputes Nigeria made similar comments chaired by the recently retired approach in Australia's superior courts in Bhushan, ICC Director for allowing conference delegates to supporting and encouraging commercial were a key focus of the in respect of Nigeria, and Chief Justice of the High Court South Asia, presented case see the new facilities firsthand. arbitration. conference, given Perth’s status highlighted that Nigerian courts of Australia, the Hon Robert statistics showing that Australian Justice Martin said competition between as a global mining and energy Chief Justice Martin also noted generally uphold Article 5 of the French AC, who was joined parties are well represented in Australian cities and their legal fraternities hub. As Simon Bellas of Jones the importance of the Hague Model Law. Professor Colin by Professor Gabriel Moens remained a hurdle to emerging as a international arbitration cases.) Day noted, Perth has been at the Convention on Choice of Court Roberts of Curtin University of Curtin University, Andrew regional arbitral centre. centre of over AUD 150 billion The Chief Justice presented a Agreements to international emphasised the importance of Battison of Allen & Overy, and "It is essential that we promote a single national arbitral face to the world, putting of LNG and iron ore investment compelling case for arbitrating in dispute resolution. Australia is investor- state arbitration as a Nathan Landis, Investment aside our parochial rivalries," he said. in the past few years, which Perth. Perth is recognised as expected to follow China, means of managing sovereign Manager of IMF Bentham. 5 The CIArb Australia News December 2017 The CIArb Australia News December 2017 6
Mr French said the federal structure of Mr Landis highlighted that growth The conference concluded Australia's judicial system was not going with an address by the Hon to go away in suggesting a cooperative in third party funding is now approach which might also prove an largely driven by parties seeking Mark McGowan, Premier of Western Australia. Aside from advantage under international conventions to manage and share the risk on choice of courts. the conference itself, Australian and financial burden of disputes, "Australia's eventual accession to the Arbitration Week included Hague Convention on the Choice of rather than those who would numerous other events hosted Courts Agreements would make such otherwise be unable to fund their by major arbitral organisations a cooperative development timely as such as the the relevant Australian court could be case. CIArb Australia, nominated in an agreement pursuant to ICC, ACICA, and ICCA, law firms the Convention as the court to determine The discussion Jones Day and Clyde & Co, and any dispute arising out of the agreement," the Supreme Court of Western he said. also canvassed Australia. "Indeed, it may be that there is greater opportunity for Australia in the field of the current state of judicial determination of international commercial disputes as an alternative to arbitration that may offer the best play on mandatory opportunities for our engagement with the region." disclosure of third Singapore and Hong Kong are considered significant regional arbitral centres along party funding. The with London and Paris internationally. China recently signed the Hague panel identified convention in what is regarded as a significant development in international an unresolved commercial dispute resolution. Justice Martin said the step was consistent problem under with China's drive to become an integrated member of the global economy in the Singaporean The 5th International Arbitration Conference conjunction with its belt and road initiative. There is no clear time-frame for China to regime: while ratify the convention. Australia had been Opening Address expected to accede to the convention disclosure of third this year through the passage of an The Hon Wayne Martin AC International Civil Law Act, but the process party funding is Chief Justice of Western Australia has been delayed. View Profile The convention gives parties who chose a expressly required, national court to resolve disputes similar enforceability of the judgment as they have the obligation under the New York Convention on the Introduction and welcome Australia, and pay my respects participants, I would also like Recognition and Enforcement of Foreign to their Elders past and present, to acknowledge the special is imposed on It is my very great pleasure to Arbitral Awards (1958). and acknowledge their continuing thanks and gratitude that are make some opening remarks at Justice Martin and other judicial Singaporean stewardship of these lands. due to the conference planning the 5th International Arbitration commentators do not regard the Hague committee - Mr Ian Nosworthy convention as a threat to international Conference, and particularly practitioners, Special Guests representing the Business Law commercial arbitration. to welcome to Perth the many Section of the Law Council of "One of the great strengths of international All participants in this conference instead of on participants in this conference Australia, Ms Caroline Kenny commercial arbitration has been the are most welcome, and each flexibility which it offers to parties who from other States, Territories and QC, President of the Chartered parties. This special in their own way, but wish to fashion a bespoke solution for the countries. As I am sure you are Institute of Arbitrators Australia, resolution of their disputes," he said. was seen as expecting, I will say a little more I would like to particularly and Mr Khory McCormick, Vice- "It is entirely consistent with that about the propitiousness of Perth acknowledge the presence of the President of the Australian Centre philosophy to provide parties with the as a venue for this conference, Honourable Robert French AC, opportunity, if they wish, to choose a court problematic in for International Commercial as the forum for the resolution of their and as a seat for international former Chief Justice of Australia, Arbitration. dispute." arbitration, where commercial arbitration a little later Justices John Gilmour and counsel need not in these remarks. Michael Barker of the Federal An Australian Approach to Court of Australia, the President International Commercial be Singaporean. The Traditional Owners of the Law Society of Western Arbitration Australia, Mr Alain Musikanth, But first I wish to acknowledge The rebadging of the series of and the President of the Western the traditional owners of the lands events which have together been Australian Bar Association, Mr on which we meet, the Whadjuk collectively presented as 'Sydney Matthew Howard SC. people who form part of the great Arbitration Week' for the last four Noongar clan of south-western On behalf of all conference years under the banner 'Australian 7 The CIArb Australia News December 2017 The CIArb Australia News December 2017 8
Arbitration Week' has much Lumpur. gas, gold, nickel and more Arbitral facilities Agreements (the Convention). stated that the Convention would more than cosmetic significance. recently lithium are exported from This significant step is obviously be implemented domestically The last decade or so has seen State of the art dedicated arbitral Whenever two or more Australian Western Australia on a scale which consistent with China's drive to through the passage of an a clear convergence of approach and mediation facilities have practitioners interested in matches any mineral province in become an integrated member of International Civil Law Act.11 A Bill in Australia's superior courts recently been opened by a private international commercial arbitration the global economy, in conjunction for that Act was proposed to be with respect to the support and the world. As a consequence, provider in Perth.5 I hope that in gather, it is only a question of time with its 'Belt and Road' initiative.6 introduced in the autumn 2017 encouragement of commercial Perth has become a recognised the very near future, those facilities before invidious comparisons sittings of the Commonwealth arbitration, overcoming the first hub for energy and resources law, will be augmented by facilities for Although I am not aware of any are made between the paucity of parliament,12 and in January of part of the problem to which and is home to many experienced mediation and arbitration in the pronouncements made by China international commercial arbitration this year, the Council on General I have referred. I suspect this practitioners in that field. Mining David Malcolm Justice Centre in relation to likely reservations in Australian seats, as compared Affairs and Policy of the Hague convergence of judicial approach and resource development which are also state of the art, and with respect to any provisions of to the flourishing arbitration Conference reported that it is not readily acknowledged by projects are of course invariably which will soon be made available the Convention, or the time which scenes in other better recognised was hoped Australia would Australia's commercial rivals in associated with the construction for private hire. the ratification process is likely to seats, both in our region and be in a position to accede to this field. However, if we are to of very large pieces of plant and take, it seems unlikely that China further afield. In the course of So, there is every reason to the Convention during 2017.13 address the second problem to infrastructure including ore and would have taken the step of discussion it is likely that attention conclude that Western Australia However, it seems that our which I have referred, it is essential gas treatment plants, railways and signing the Convention unless it will be given to the incongruity that we promote a single national ports, which has in turn attracted can make its fair contribution to legislators may have been a between the relative infrequency of was committed to moving towards arbitral face to the world, putting lawyers with expertise in those the development of a national little distracted by other matters international arbitration in Australia, face for the arbitral profession in ratification within a reasonable aside our parochial rivalries. That fields to Western Australia as recently. and the significant representation Australia. time-frame. is why I am so pleased that the well. I note that the first session of Australian practitioners - as Detailed discussion of the scope series of significant events which in this conference is to address I am sure that many of you are Although the Convention was counsel and arbitrators - in and effect of the Convention is well had a somewhat parochial flavour arbitration in the gas, energy, thinking "well he would say that settled on 30 June 2005, it did arbitrations conducted all around beyond the scope of these brief have been rebadged as a national resources and projects sectors. wouldn't he?" But these views not come into force until more the world. During a recent visit to remarks. It is sufficient for present event, which will occur in different are not idiosyncratic, and are than 10 years later on 1 October London and Paris, I was struck purposes to say that, generally Australian cities from time to time. Commerce shared by others without my 2015 when the European Union by the number of Australian speaking, the Convention would That step will, of itself, stimulate parochial sentiment. Last week (EU) deposited its instrument of practitioners working at all levels Exports from Western Australia 7 confer upon parties choosing a the development of a unified it was announced that Perth approval. The United Kingdom in the field of arbitration, from the represent more than 40% of the national court as the forum for the Australian arbitral profession - an has been chosen as the venue government has indicated a junior to the most senior, and I am value of all goods exported from resolution of their disputes, roughly objective which is already well to host the 2018 Chartered commitment to international sure that the same holds true of Australia.1 If Western Australia the same measure of enforceability advanced. Institute of Arbitrators Diploma civil judicial cooperation, and an other significant arbitral centres was a country, its GDP would of the judgment as is conferred in International Commercial intention to participate in The like Singapore, Hong Kong, Beijing upon international arbitral awards Western Australia's place it just outside of the largest Arbitration - a programme which Hague conventions to which it is 2 under the New York Convention on and so on. 50 economies in the world. already a party, post Brexit.8 As Contribution to the National is provided as a joint venture the Recognition and Enforcement Commerce in Western Australia of today, only the EU,9 Singapore When discussion turns to the Scene between the Singapore, East of Foreign Arbitral Awards (1958) reasons for this incongruity, and has developed a truly international Asian and Australian branches and Mexico have ratified the I am delighted that, with only a (the New York Convention). the unpalatable but undeniable character. of the Chartered Institute. The Convention, although the United little prompting from me, the three truth that, despite the best efforts Perth programme will follow States of America signed the The New York Convention has institutions which convene this of everybody at this conference, Geography and time-zone similar successful programmes Convention on 19 January 2009, been the fertiliser which turned conference decided that the first Australia punches below its weight in Singapore in 2016 and in Hong the Ukraine on 21 March 2016, the previously barren ground of venue for the conference outside Situated on the rim of the Indian as a seat, the contributing factors Kong last month, and can be China (as I have mentioned) on 12 international commercial arbitration Sydney should be Perth. It would Ocean, close to the developing identified will likely include: expected to attract participants September 2017, and Montenegro into a veritable cornucopia. be entirely inconsistent with the economies of the Indian from all around the globe. The on 5 October 2017. • Australia's federal structure - remarks I have just made for me subcontinent, south-east Asia and choice of Perth as the venue for The Hague Convention on leading to nine different courts to now catalogue the competitive northern Asia, Perth enjoys regular next year's programme is another The Hague Convention on Choice of Court Agreements is with the capacity to supervise advantages which Perth enjoys as and convenient connections with very significant step forward in Choice of Court Agreements no threat international arbitration, and a seat for international commercial most major centres in Asia and the development and promotion and Australia the consequent possibility of arbitration, as compared to other more than half of the world's I respectfully join other judicial of a unified Australian arbitration divergent approaches emerging Australian seats. population lives within 2 hours In October 2016, the Joint commentators in expressing the from those courts; of Perth time.3 The Western community. Standing Committee on Treaties view that the development of an However, there is no inconsistency • The competition between Australian resource sector also has of the Australian Parliament international regime providing in me briefly identifying the A significant recent Australian cities, and the legal strong links to Africa. I note that recommended that Australia enforceability to parties who wish significant contribution which development professions within those cities another session in this conference accede to the Convention and to choose a court as the forum Western Australia can make to the - a competition which does not will address the development of I would like now to briefly refer to a take binding treaty action, noting for the resolution of their dispute national arbitration profession. exist in most other countries arbitration in Africa, and that Africa very significant development in the that, at that time, Asia was under- is entirely consistent with, and competing for seats - almost has also been a significant source field of international commercial represented in the Convention10 provides no threat to, international Energy and resources 14 all of which have a single city of investor-state arbitrations dispute resolution which occurred - a situation which will, of course, commercial arbitration. a little over two months ago, change dramatically if and when where all relevant participants Western Australia has some of including the first such awards One of the great strengths of Australia's largest trading partner will be located, whether that the most significant deposits to be enforced by an Australian when Australia's largest trading international commercial arbitration 4 ratifies. be London, Paris, Singapore, of minerals and energy on the court. I will come back to this partner, China, signed the Hague has been the flexibility which Hong Kong, Beijing or Kuala planet. Iron ore, liquefied natural topic a little later. Convention on Choice of Court The government has subsequently it offers to parties who wish to 9 The CIArb Australia News December 2017 The CIArb Australia News December 2017 10
fashion a bespoke solution for the The placement of courts as so gently, into the maelstrom of in themselves, a good thing or order to take advantage of the Conclusion resolution of their disputes. another tile in a mosaic of debate surrounding investor-state a bad thing, but rather whether, provisions in a particular treaty.23 In these short remarks I have international commercial dispute arbitrations. Provisions in trade in the context of a particular It seems to me that these are It is entirely consistent with that touched upon just a few of resolution, at the choice of the treaties providing foreign investor trade treaty, the mitigation of areas in which the development philosophy to provide parties with the issues that will engage our parties, provides another option protection, and the arbitrations sovereign risk which they provide of international commercial the opportunity, if they wish, to attention and interest throughout to parties concerned by one which they can generate, have is necessary and justifiable, in courts might offer the possibility choose a court as the forum for what promises to be a very or more of those aspects of been the subject of recent furtherance of bilateral trade. In of mitigating some of these the resolution of their dispute. 19 stimulating day. Might I finish by arbitration, and augments the vociferous criticism. Critics this context I note that Australia concerns. A standing international reiterating my very warm welcome International commercial range of mechanisms available include the then Chief Justice now seems to be taking a case by court, with permanently employed to all delegates to this conference. arbitration would not have received to those engaged in international of Australia, who drew attention case approach on these issues,21 personnel and judicial officers I look forward to meeting as many the strength of support it has commerce for the resolution of to the fact that an investor- which appears consistent with and established procedures and of you as I can and very much enjoyed from participants unless it their disputes. For my own part, I state arbitration brought against the views which I and others have infrastructure might be quicker (if was perceived in the marketplace do not see anything antithetical, Australia would have involved expressed. properly resourced) and cheaper hope that you enjoy your stay in as having considerable strengths. threatening or confronting in the the determination, by an arbitral than the ad hoc tribunals which our beautiful city. However, this is not to say that development of this alternative tribunal, of a question which was Other criticisms of investor-state dominate this area, and if given international commercial arbitration to international arbitration. I significantly similar to that which arbitrations include the hoary old sufficient coverage, would likely is perfect, or without blemish. A draw support for this view from was determined by the High Court chestnuts of delay and expense,22 reduce the incentive for forum number of commentators have the observation that Singapore, of Australia, had the case not been and the capacity which ISDS shopping. However, I am not observed that the complaints of a great and very successful resolved on a preliminary basis.20 provisions provide for forum so naïve as to under-estimate cost and delay which have been promoter of international shopping, whereby international the many hurdles which would His Honour's concern at directed at courts for centuries, commercial arbitration, has ratified companies can channel have to be overcome to achieve the prospect of the decision and which provided great stimulus the Convention. investments through subsidiaries international consensus in this of Australia's highest court for the alternative of arbitration, are in a particular jurisdiction in area. being implicitly impugned or now being directed at international The Draft Hague Convention on undermined by the inconsistent commercial arbitration.15 On the Recognition and Enforcement decision of an arbitral tribunal other hand, procedural reform in of Foreign Judgments is entirely understandable. the courts has blunted some of 1. Australian Government Department of Foreign 2016) [3.4]. Substantively’ (Paper delivered at the 15th The Hague Convention on On the other hand, damage Affairs and Trade, Australia’s Trade by State 11. It was proposed that the International Civil Conference of Chief Justices of Asia and the those long-standing criticisms. and Territory 2015-16 (February 2017) 14. Law Act would implement the Convention and Pacific, Singapore, October 2013) 11. Choice of Court Agreements only to the commercial interests of 2. World Bank, World Development Indicators also the Hague Principles on Choice of Law 17. See, eg, Justice Clyde Croft, ‘Recent International commercial arbitration applies if parties agree to select international investors as a result database – Gross domestic product 2016 in International Commercial Contracts which Developments in Arbitration: at Home and (17 April 2017) 1; Australian Government were approved by the Hague Conference Abroad’ (Paper presented to the Arbitration can be confronted with procedural a national court as the forum for of decisions of domestic courts Department of Foreign Affairs and Trade, on Private International Law on 19 March Special Interest Group at the Resolution obstacles which do not impede the resolution of their dispute. applying laws promulgated by the Australia’s Trade by State and Territory 2015. See the National Interest Analysis Institute, Melbourne, 16 October 2017) 8-9; courts in areas like the provision of However, there will also be cases State is a significant component 2015- 16 (February 2017) 74. [2016] ATNIA 7, Australia’s Accession to the Chief Justice Sundaresh Menon, ‘Some 3. Government of Western Australia Department Convention on Choice of Court Agreements Cautionary Notes for an Age of Opportunity’ enforceable interim relief (by way in which international commerce of the sovereign risk to which of Jobs, Tourism, Science and Innovation, [2016] ATNIF 23 [22]–[24]. (Keynote Address, Chartered Institute of injunction or other interim order) will be facilitated by enhancing the provisions of this kind are Key facts -Shared time zone (accessed 20 12. Australian Government Department of the of Arbitrators International Arbitration November 2017). Prime Minister and Cabinet, Legislation Conference, Penang, 22 August 2013) 4-5. and in relation to the joinder of directed. In my respectful view, enforceability of court judgments 4. Lahoud v Democratic Republic of Congo Proposed for Introduction in the 2017 18. HCCH Special Commission, Legislative parties who are not parties to the in appropriate circumstances. the understandable sensitivities [2017] FCA 982. Autumn Sittings (accessed 20 November Projects – Judgments, (accessed 14 2017). November 2017). arbitration agreement. Critics also To that end, a Draft Hague of national courts applying 5. The ADR Centre, 32 St Georges Terrace, Perth WA 6000. 13. Council on General Affairs and Policy of the 19. See, eg, D Jones, ‘The Problem of point to the lack of a developed Convention on the Recognition domestic laws need to be viewed Hague Conference - Hague Conference on Inconsistency and Conflicting Awards in 6. A foreign policy and economic strategy of Private International Law Permanent Bureau, Investment Arbitration’ (Paper presented at transparent body of jurisprudence and Enforcement of Foreign in the context of the mitigation of the People’s Republic of China which aims to Suggested Further Work in Support of the German – American Lawyer’s Association, with respect to international Judgments is in the course of sovereign risk, and the imbalance systemically promote the cultural, economic Forum and Law Selection in International Frankfurt, March 2011); Marta Latek, and developmental connections between Commercial Contracts (No 5 January 2017) European Parliamentary Research Service commercial arbitration, and preparation, and the Special of power between investors and Asia, Europe and Africa and their connecting [4], [8]. Briefing, Investor- State Dispute Settlement seas. See People’s Republic of China National the consequent inability of Commission charged with the state parties which provisions of 14. See, eg, Chief Justice Marilyn Warren AC (ISDS); State of play and prospects for Developmental and Reform Commission, reform (21 January 2014). international arbitration to assist in project met in The Hague for the this kind are intended to mitigate. Visions and Actions on Jointly Building and Justice Clyde Croft, ‘An International Commercial Court for Australia - looking 20. Chief Justice Robert French AC, ‘Investor- the convergence of international third time last week.18 Although it Silk Road Economic Belt and 21st Century Sovereign risk is undoubtedly a Maritime Silk Road (28 March 2015). beyond the New York Convention’ (Paper State Dispute Settlement – A Cut Above the commercial law16 - a convergence is, of course, too early to proffer a presented in an abridged version at the Courts?’ (Paper presented to the Supreme significant fetter on international 7. The EU made a declaration under Article Commercial CPD Seminar Series, Melbourne, and Federal Courts Judges’ Conference, which is obviously highly desirable view with respect to the merits of a 21 of the Convention, under which certain 13 April 2016) 16. Darwin, 9 July 2014) 4–6. investment and therefore upon insurance contracts will fall outside the scope in an increasingly global economy. convention which remains in draft, 15. See, eg, Queen Mary University of London 21. See Australian Government Department international trade and commerce. of the Convention, except in certain cases it is difficult to argue coherently provided for in paragraph 2 of that declaration. – School of International Arbitration, of Foreign Affairs and Trade, Free Trade Commentators also point to the The mitigation of fetters on See HCCH, Conventions, Protocols and 2015 International Arbitration Survey: Agreements
Sydney Arbitration Week and ConocoPhillips. WA Legal Profession / Courts becomes Australian Arbitration Week Perth is home to more than 720, Today, Perth is recognised as or 35 percent, of Australia’s ASX an international centre of legal I am aware that the four previous companies (723). Arbitration Conferences were held excellence in the areas of energy in Sydney and badged as ‘Sydney This is significantly more than and resources. Arbitration Week’. Sydney (639), and more than We have a highly respected I am very pleased to note that the double Melbourne (348). dispute resolution sector. Conference has now ventured They are drawn to our State’s West and been rebranded as mineral wealth, vibrant economy, The Federal Court of Australia ‘Australian Arbitration Week’. attractive investment climate, low and the Supreme Court of It reflects the reality that WA, and sovereign risk and highly skilled Western Australia have both Perth in particular, is a hub for local workforce. shown themselves to be strong international business and can be a significant seat for international The Fraser Institute Annual Survey supporters of international commercial arbitration. of Mining Companies, which commercial arbitration. rates over 100 global mining The Court of Appeal in Western WA – An International Economy jurisdictions, regularly rates WA as Australia has also shown its Western Australia occupies one a top jurisdiction. third of the continent. appreciation of, and sensitivity to, Since 2009 we have been the top the public interest in the promotion We are larger than most countries. jurisdiction in Australia. and support of international And we are home to some of the most significant deposits of Geography commercial arbitration. mineral and energy resources on Western Australia is Australia’s The 5th International Arbitration Conference the planet. Arbitration Infrastructure western window to the world. Our share of world mining There are two Australian Address Geographically and economically, production includes institutions ready and available Western Australia is Australia’s The Hon, Mark McGowan MLA • 41 percent of global rutile gateway to the high-growth Asian to oversee the conduct of Premier of Western Australia production and Indian Ocean Rim countries. international arbitrations here View Profile • 38 percent of global iron ore in Perth – the Australian Centre production Fifteen countries in the Asia for International Commercial Acknowledgements • I also acknowledge and thank I understand you have enjoyed a • 34 percent of global garnet Pacific region are among Western the Conference Planning successful day. Arbitration (ACICA), one of the Good evening. production Australia’s top 20 trading partners. Committee: It’s fantastic to see that this organisers of this Conference; and Let me first acknowledge the Development of our resources has Perth is closer to Jakarta and • Carolyn Kenny QC, CIArb Conference has attracted senior seen the development of mining the Perth Centre for Energy and Whadjuk people of the Nyungar Australia President Singapore than it is to Sydney. nation, the traditional owners of partners and advisers from and transport infrastructure of a Resources Arbitration (PCERA). the land we meet on today. I pay • Ian Nosworthy, Law Council national and global law firms magnitude and of a scale that is Sixty percent of the world’s my respects to their elders past, of Australia across Australia and beyond. comparable to any in the world. population lives within two hours In support of the sector, my present and emerging. • Khory McCormick, ACICA Speakers have been attracted Exports from WA represent over of Perth time. Government has given in-principle Vice President from the United States, Nigeria, 40 percent of the value of all approval to make hearing rooms, I also acknowledge: Perth is the only Australian State South Africa, Dubai, Singapore Australian exports – more than Introduction capital that is contactable with mediation suites and associated • Former Chief Justice of and around Australia. twice that of any other State. Australia and newly appointed It is my very great pleasure to the United Kingdom and Europe facilities at the new David Malcolm If Western Australia was a country, Chancellor of UWA, The welcome delegates and speakers Welcome to all who have travelled during overlapping business hours, Justice Centre available for here, and I trust you have gained our GDP would place us just Honourable Robert French to the 5th International Arbitration allowing for crucial person- to- commercial hire. much from today’s events. outside the largest 50 economies AC Conference. person contact and real time in the world. We are working through the last • The Honourable Chief My thanks to the Chartered problem solving. We are home to the largest Justice, Wayne Martin AC Institute of Arbitrators of the legal issues and approvals concentration of global resources Perth enjoys the shortest travel • The Honourable Justice John (Australia), the Australian Centre necessary to make this happen. companies in Australia. times of any Australian State Gilmour, Federal Court of for International Commercial Australia Arbitration (ACICA), and the We are an important operating capital city to key markets in • The Honourable Justice Law Council of Australia, base for the world’s largest Africa, the Middle East, Europe, Michael Barker, Federal for convening this important diversified corporations including the United Kingdom and most Court of Australia Conference. BHP Billiton, Rio Tinto, Chevron Asian markets. 13 The CIArb Australia News December 2017 The CIArb Australia News December 2017 14
CIArb Asia Pacific East Asia and Conclusion May I once again say how pleased Diploma Singapore I am that the organisers of the Conference saw fit to host the new branches of the Australian Arbitration Week here in Finally, I’d like Institute and is a Perth. I know our city and our State can to take this global qualification. provide effective international opportunity to arbitration services to all who need them. congratulate I look forward to continuing to see the Chartered With Perth a this sector grow and strengthen in potential major WA in the years to come. Institute of Thank you for the opportunity to Arbitrators (CIArb) seat for the speak with you all this evening. conduct of I trust you have gained valuable on the recent knowledge over the course of the announcement that international Conference. And I hope you enjoy your time in Left to Right: Caroline Kenny QC, The Hon Chief Justice Wayne Martin AC (Supreme Court of WA), The Hon Mark McGowan (Premier of WA), commercial and (BLS, Law Council of Australia) Perth will host the Perth. Ian Nosworthy 2018 CIArb Asia arbitration – a Pacific Diploma potential my in International Government Commercial is working to Arbitration. see realised – I welcome this decision and wish I understand the the CIArb every course is a joint success in its venture between endeavours. the Australian, 15 The CIArb Australia News December 2017 The CIArb Australia News December 2017 16
Delegates At A Glance 5th International Arbitration Conference: International Arbitration in a changing global economy
9.00 am Welcome To Delegates Ian Nosworthy, Consultant, Cowell Clarke 1.20 pm Lunch Solicitors, Australia Caroline Kenny QC, Barrister and International Arbitrator, President, CIArb Australia 2.20 pm Maritime Arbitration – Issues and Recent Trends 9.10 am Opening address Chair: The Hon Justice John Gilmour, Federal Court The Hon Wayne Martin AC, Chief Justice of the of Australia Supreme Court of Western Australia Panellists: 9.30 am Arbitration in the Gas, Energy, Peter Mannion, General Manager – Fleet Operations, Resources and Projects Sectors Rio Tinto – Marine, Australia Chair: Khory McCormick, Consultant, Barley Cohen Peter McQueen, Independent Arbitrator, Australia Law, Vice President, ACICA, Australia and UK Panellists: Dr Pat Saraceni, Director of Litigation and Dispute Resolution, Clifford Chance, Australia Abhinav Bhushan, Director, South Asia, ICC Arbitration & ADR, Singapore Hazel Brewer, Partner, Holman Fenwick Willan, Australia Dr Jeff Makholm, Senior Vice President, NERA Economic Consulting, USA 3.50 pm Third Party Funding in Arbitrations – Greg Steinepreis, Partner, Squire Patton Boggs, Australia and Beyond Australia Chair: The Hon Robert French AC, former Chief Simon Bellas, Partner, Jones Day, Australia Justice of the High Court of Australia 11.00 am Around the Globe in 60 Minutes: Hot Panellists: Topics in International Arbitration Professor Gabriel Moens, Professor of Law, Curtin University and Emeritus Professor of Law, The Chair: James Healy, Barrister, Francis Burt University of Queensland, Australia Chambers, Vice President, CIArb, Australia Andrew Battison, Partner, Allen & Overy, Singapore Panellists: Nathan Landis, Investment Manager, IMF Bentham, Kevin Nash, Deputy Registrar & Centre Director, Australia SIAC, Singapore Jo Delaney, Partner, Baker McKenzie, Australia 5.20 pm Concluding remarks Bjorn Gehle, Former Partner, Reed Smith LLP, Dubai, Andrea Martignoni, Partner, Allens, and Vice now independent arbitrator, Dubai President, ACICA, Australia Ian Nosworthy, Consultant, Cowell Clarke Solicitors, Australia 12.00 pm Morning Tea 5.30 pm Cocktail party Welcome speech by The Hon Mark McGowan MLA, Premier, Western Australia 12.20 pm Out of Africa: The Hot Spot in International Arbitration Photos: Trevor Collens Chair: Caroline Kenny QC, President, CIArb Australia Panellists: Vlad Movshovick, Partner, WebberWentzel, South Africa Mark Mordi, Partner, Aluko & Oyebode, Africa Prof Colin Roberts, Faculty of Science & Engineering - Curtin University & Colin Roberts Group, Australia 17 The CIArb Australia News December 2017 The CIArb Australia News December 2017 18
Session 1: Left to Right: Abhinav Bhushan (ICC South Asia), Greg Steinepreis (Squire Patton Boggs, Australia), Andrea Martignoni (Allens, Australia), Dr Jeff Makholm (NERA Economic Consulting, USA) and Simon Bellas (Jones Day, Australia) 1917 The CIArb Australia News December 2017 The CIArb Australia News December 2017 2018
Driving Change. Driving Change.
Session 2: Left to Right: Matthew Secomb (White & Case, Singapore), James Healy (CIArb Australia Vice President & Francis Burt Chambers), Jo DelaneySession (Baker5: Left McKenzie, to Right: Australia)Andrea Martignoni and Kevin Nash (Allens (SIAC, Linklaters, Singapore) Australia), Leah Ratcliff (BHP Billitonm Australia), Lisa Bingham (PCA, The Hague) and Nick Watts (Holman Fenwick Willan, Australia)
Through hazards and risk, serving clients where they need us is how we play. Jones Day is a
global law firm with more than 2500 lawyers resident in 18 countries and 43 offices throughout Asia,
Europe, the Middle East, and the Americas. Our Global Disputes Practice covers the spectrum of
matters facing our clients, including both commercial and investor-state arbitration.
With offices in Sydney, Brisbane, and Perth, our worldwide reach means we are well positioned
to bring together the right team of lawyers to meet our clients’ business objectives and work
seamlessly to bring the best of the Firm to every client engagement.
2500 Lawyers. 43 Locations. 5 Continents. www.jonesday.com 21 The CIArb Australia News December 2017 The CIArb Australia News December 2017 22
Session 3: Left to Right: Vlad Movshovick (WebberWentzel, South Africa), Prof Colin Roberts (Curtin University & Colin Roberts Group, Session 4: Left to Right: Peter McQueen (Independent Arbitrator, Australia & UK), Dr Pat Saraceni (Clifford Chance, Australia), The Hon Justice Australia), Caroline Kenny QC (CIArb Australia President & Vic Bar) and Mark Mordi (Aluko & Oyebode, Nigeria) John Gilmour (Federal Court of Australia), Hazel Brewer (Holman Fenwick Brewer, Australia) and Peter Mannion (Rio Tinto Marine, Australia) 232721 The CIArb Australia News December 2017 The CIArb Australia News December 2017 282224
WoRld ClAss ARBitRAtion from A WoRld ClAss BAR
CompetenCy | Commitment | ConsistenCy CompetenCy The Best People in Arbitration The Victorian Bar is home to some of the region’s most eminent arbitration figures. The Bar has over fifty dedicated arbitration practitioners with extensive international experience and accreditation through respected, internationally recognised bodies.
Commitment We’re serious about Arbitration The Victorian Bar is committed to developing Arbitraion as a core competency of our members. We support Arbitration at the Bar through dedicated training, resources, support and facilities.
ConsistenCy Impartial, efficient and reliable dispute resolution The Victorian Bar has an exceptional CPD Program offering training from leaders of the profession from within the Bar, from the Bench and from private practice as well as from internationally renowned experts in all areas of substantive law, advocacy and alternative dispute resolution. Together with the dedicated support of senior mentors in the field, we ensure a consistently high quality best-practice approach to arbitration.
seARCH oUR WeBsite for a list of experienced and accredited arbitrators.
expeRts in lAW And expeRts in ARBitRAtion
www.vicbar.com.au
Victorian bar Handbook ad.indd 1 11/14/2016 4:07:38 PM MC CorpAd (206X270)Ad2_FinalFA.indd 1 8/4/17 7:25 AM 25 The CIArb Australia News December 2017 The CIArb Australia News December 2017 26
The Australia Maritime and Whatever the law Additionally, the credibility and Transport Arbitration Commission effectiveness of arbitration (AMTAC) (established by the and jurisdiction of depends on strong and balanced Australian Centre for International client choice the judicial support both of the Commercial Arbitration (ACICA)) is arbitration process itself and in the sector focused and the Resolution arbitration process enforcement of arbitration awards. Institute is also a well established Respective local courts have also arbitration intuition. Additionally, benefits from and demonstrated keen support of many international maritime thrives on flexibility arbitration, examples of which can arbitrations are conducted be drawn from around the globe. HAZEL BREWER on an ad hoc basis, without to move with the PARTNER, HFW, PERTH For example the Dubai Court the involvement of any arbitral View Profile times. Increasingly of Cassation recently upheld a institution. It is not therefore easy judgment ordering the recognition to gauge just how fast the appetite arbitration centers and enforcement of a London for arbitration within Australia have adopted new arbitration award under the New is developing, other than by York Convention, ordering the anecdotal evidence. Anecdotally, and innovative Recent Trends in Maritime Arbitration recognition and enforcement of a however, it seems that Australia's arbitration rules foreign arbitral award made on the market share of arbitration is basis of an unsigned charter party. he appetite for maritime Historically, parties with no Of the Asia Pacific jurisdictions, increasing. Further Australian to keep pace with Closer to home, the Australian and trade arbitrations has connection to London have been Singapore has been the quickest lawyers are increasingly involved in always been driven by the demand of courts have been stalwart in content to have their maritime and and most successful to gain arbitrations in nearby Asia Pacific clients seeking reliable and support of the arbitration process. T trade disputes resolved in what ground, buoyed by strong jurisdictions. users. Examples cost effective dispute resolution was, and remains, regarded as government support that has Last year the Australian Federal outcomes, with awards that can In the Middle East, Dubai is a neutral and reliable jurisdiction encouraged the establishment include new rules Court awarded indemnity costs be relatively easily enforced. following the lead of Singapore and London currently maintains of a significant regional maritime against a party for making an and others in building a regional on emergency The choice of governing law of its dominant position in maritime and international arbitration application to set aside an and global maritime hub. Dubai the contract and the choice of and trade specific arbitrations, still hub, with both the Singapore arbitrations and arbitration award which had no International Arbitration Centre has created its first Maritime jurisdiction in which any dispute benefiting from hundreds of years reasonable prospect of success1 will be resolved is not always, (SIAC) and Singapore Chamber of Advisory Council, so that Dubai rules permitting of legal precedent in maritime and and prior to that the High Court of a prime focus of attention. For Maritime Arbitration Centre (CMA) regulators can better engage with international trade disputes, as and regulating third Australia confirmed that Australian example in bluewater time charters supervising maritime disputes. maritime businesses. The Emirates well as the early development of courts have power to issue a the default position is regularly Maritime Arbitration Centre (EMAC) party funding. a strong international arbitration For some, particularly Asia freezing order (akin to a Mareva English law and jurisdiction, with was launched in 2016 and aims community of trade and maritime focused businesses, arbitration in injunction) not just in advance of a the seat and place of arbitration to serve as the first specialized arbitrators. Hong Kong offers the opportunity judgment being obtained but also in London. These choices are marine arbitration centre in the to deal with disputes in the region in the expectation of the issue of then usually followed in sub time With the benefits of technology Middle East. using the established and well- a Singaporean arbitration award, charters and related voyage and increasing demand for respected Hong Kong Centre of on the basis that any such award charters. Where traders or fast and cost effective dispute International Arbitration (HKIAC). would need to be enforced by a shippers have the commercial resolution other jurisdictions upper hand voyage charters may While the majority of international judgment of the Australian court, including Asia Pacific countries be more readily fixed with the maritime arbitrations are dealt and that the Australian court's like Australia, Singapore and place and seat of the arbitration in with outside of Australia, there process would be undermined if Hong Kong are actively seeking a jurisdiction closer to home, even has been a substantial increase assets in the Australian jurisdiction to strengthen and expand their if the governing law of the voyage in international parties arbitrating had been deliberately dissipated in respective foot prints in maritime charter remains English. Where in Australia, in part because of advance of such judgment.2 specialist project and support and international arbitration. They contracting parties' involvement vessels are brought in to support have strong credentials to do so, in the many offshore, mining major developments the project each having sophisticated and and construction projects under owners/charterers may have the arbitration-friendly legal systems, development over recent years, commercial power to dictate local experienced maritime and trade but also because of Australia's law and jurisdiction terms, but not arbitrators and access to a broad proximity to Asia and its expanding 1. Sino Trading Ltd v Noble Resources International Pte Ltd (No2) [2016] FCA1169 always. range of independent experts. markets. 2. PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36. 2527 The CIArb Australia News December 2017 TheThe CIArbCIArb AustraliaAustralia NewsNews DecemberDecember 2017 2017 2826
Session 5: Left to Right: Prof Gabriel Moens (University of QLD, Australia), Nathan Landis (IMF Bentham, Australia), The Hon Robert French AC Session 5: Left to Right: Andrea Martignoni (Allens Linklaters, Australia), Leah Ratcliff (BHP Billitonm Australia), Lisa Bingham (PCA, The (Australia) and Andrew Battison (Allen & Overy, Singapore) Hague) and Nick Watts (Holman Fenwick Willan, Australia) 292721 The CIArb Australia News December 2017 The CIArb Australia News December 2017 302822
WoRld ClAss ARBitRAtion from A WoRld ClAss BAR
CompetenCy | Commitment | ConsistenCy CompetenCy The Best People in Arbitration The Victorian Bar is home to some of the region’s most eminent arbitration figures. The Bar has over fifty dedicated arbitration practitioners with extensive international experience and accreditation through respected, internationally recognised bodies.
Commitment We’re serious about Arbitration The Victorian Bar is committed to developing Arbitraion as a core competency of our members. We support Arbitration at the Bar through dedicated training, resources, support and facilities.
ConsistenCy Impartial, efficient and reliable dispute resolution The Victorian Bar has an exceptional CPD Program offering training from leaders of the profession from within the Bar, from the Bench and from private practice as well as from internationally renowned experts in all areas of substantive law, advocacy and alternative dispute resolution. Together with the dedicated support of senior mentors in the field, we ensure a consistently high quality best-practice approach to arbitration.
seARCH oUR WeBsite for a list of experienced and accredited arbitrators.
expeRts in lAW And expeRts in ARBitRAtion
www.vicbar.com.au
Victorian bar Handbook ad.indd 1 11/14/2016 4:07:38 PM MC CorpAd (206X270)Ad2_FinalFA.indd 1 8/4/17 7:25 AM 31 The CIArb Australia News December 2017 The CIArb Australia News December 2017 32
however, funding is often sought The Dispute Funding Process the ratio, the more attractive the part way through a case (as costs economics of the case are to the The features of a dispute finance escalate or as the merits of the funder. A typical benchmark in the arrangement can vary greatly from case become more defined) or at funding industry is 10:1, meaning case to case. Individual funders the enforcement stage, once an a project budget of up to $1m for will have different assessment award is obtained. a meritorious case with a realistic processes, although commercial recovery of $10m. Although respondents represent dispute funders will typically apply fifty percent of the disputes the following basic investment A funder will tend to focus on market, funding of respondents criteria. the conservative likely outcome, is less common. Stand-alone rather than the maximum potential At a minimum a funder will want respondent funding is currently claim value, considering the legal, to ensure that: (a) the case is Nathan Landis rare. The most likely opportunity factual and technical issues that meritorious; (b) the economics Investment Manager, IMF Bentham to secure funding is where the might reduce the headline figure in of the investment and the claim View Profile respondent has a meritorious any final award. The prospect of are likely to provide a reasonable counterclaim such that the likely settlement and the respondent’s return to all parties; and (c) there is net outcome is an amount payable ability to pay will also factor into a high prospect of recovery. to the respondent. A portfolio the likely level of recovery. A financing arrangement (discussed (a) Merits balanced, realistic approach will below) might also permit the better assist the funder in the Dispute Funding of Arbitration in the Energy The degree of merit required to allocation of costs to a defence assessment process. satisfy a funder’s internal approval within a wider portfolio. Sector process is highly subjective. A similar, measured approach The financing of dispute portfolios Some funders, or their brokers, will be taken to the assessment (i.e. claims grouped together) may require prospects of of the project budget. The is increasingly common and is success expressed in percentage funder will likely require a detailed o doubt because the “poster boy” for dispute finance of Who is Seeking Funding? used by large corporates and terms, often so that it may be budget that accounts for legal energy sector is steeped arbitrations. Despite its origins in assisting incorporated into some form of in complex, international, law firms. Although any portfolio and associated costs, arbitrator impecunious claimants obtain algorithmic risk assessment or capital-intensive projects DISPUTE FUNDING arrangement will be tailored to the fees, institutional costs, experts, N access to justice, modern dispute circumstances and may take many pricing model. For this reason, travel, disbursements, general and transactions, one leading What is Dispute Funding? finance is not just for those who lawyers are often now asked to arbitrator has described the energy forms, the additional benefits to file management and prospective cannot pay. Recent industry ascribe percentage figures to the sector as, “the poster boy of arbitral Parties to international arbitration the funder and the funded party contingencies. This provides an are usually derived from some prospects of success. globalisation,” noting that, “there can obtain funding or reduce their growth has been driven, in part, accurate estimate of the funder’s by well-resourced, financially form of cross-collateralisation total investment. Some funders is scarcely a major energy sector risks in many ways. These include Funders will give greater weight throughout the portfolio. The may require a fee cap or fixed contract (whether oil, gas, electric, traditional means - insurance, capable parties, simply seeking to documentary evidence and funder’s return will be linked to the fee from the legal team, or an nuclear, wind or solar) that does bank loans, corporate finance and to shift or share the cost and risk clear points of law, which provide overall performance of the portfolio agreement on the treatment of not call for disputes to be resolved retaining lawyers on a success of commercial disputes to a third predictability. Cases heavily rather than individual claims and budget overruns, to provide further before an independent and neutral or contingency fee basis (where party. reliant on contested facts and oral its risk is therefore spread across a certainty over the economics of arbitral tribunal.”1 permitted). A broad definition of Shifting responsibility for these evidence are likely to carry greater range of disputes carrying different the case. dispute funding could therefore risk. As the use of international costs to the funder means that the risk profiles. In such cases, the (c) Recoverability arbitration in the energy sector has encompass numerous risk litigation expenses no longer drag funder may accept a lower overall (b) Economics 4 grown, so too has the complexity, mitigation tools. down the P&L of the business. return and the arrangement The non-recourse nature of a Assessing the ‘economics’ of cost and associated risk of In this way the business can enables quicker deployment of typical arrangement means that In the modern context, however, a case will involve weighing the international arbitration as a form mitigate its potential downside funds to individual cases, often on the funder does not receive its references to dispute finance, funder’s likely exposure (i.e. of dispute resolution.2 Users of the risk, while retaining the bulk of any pre-arranged terms. costs or a return unless there is are typically to a non-recourse the legal and other costs to be arbitral process are increasingly commercial benefit and freeing up a successful recovery. For this financing arrangement where For corporates, a portfolio invested, as well as potential looking for innovative ways to cash to be spent elsewhere. Such reason, the counterparty must an otherwise uninterested party arrangement may also allow exposure to adverse costs) against finance their cases, manage arrangements are increasingly have the ability to meet any award agrees to meet the costs of a greater flexibility to offset defence the likely recovery on resolution risks and reduce costs. This has used by both large and small made against it or to settle at a party to a dispute, in exchange costs and the costs of disputes of the matter. Approaches will contributed to an exponential rise companies as a flexible tool to figure that supports the economic for a share in the commercial with non-monetary claims. The vary considerably; however, large in the use of third-party funding help manage cash-flow and legal assessment of the case. If benefit obtained on a successful funder will recover its costs and commercial funders such as IMF or dispute finance, a progressively budgets as well as risk. enforcement action is likely to outcome. The non-recourse return from the revenue generating Bentham will typically seek to fund sophisticated global industry, with be required in order to recover, nature of the arrangement means A claimant may seek funding claims within the portfolio. In cases where the economics permit an estimated worth of over US$4 the counter-party must have the funder has no recourse against at various stages of a dispute. some cases, the business might the funded party to retain more billion and growing.3 identifiable assets in jurisdictions the funded party if the case is Funders can add most value prior also secure an advance on than half of the resolution sum. where funded enforcement action Given the prevalence of arbitration unsuccessful: the funder must to initiation of proceedings, so that working capital against the claim For this reason, funders often is permissible and likely to be in the energy sector, one could meet the costs of the dispute, and the financial arrangements can be value of the portfolio, to deploy require a minimum ratio between effective. be forgiven for thinking that the possibly the adverse costs ordered set as an integral part of the overall within the business or simply to the likely resolution sum and industry will also become the against the funded party. dispute strategy from the outset; declare as profit. costs of investment. The wider The relatively simple and wide- 33 The CIArb Australia News December 2017 The CIArb Australia News December 2017 34
ALRC inquiry ranging enforceability of arbitral considerations. Some of the most investment and potential time to relationships. This information “However, the industry now has a global welcomed by Aus awards across jurisdictions common categories of energy recovery. is important because the funder footprint with many new entrants, and pursuant to the New York and sector arbitrations are considered will need to factor into its review the costs of litigation are increasing. It is third-party litigation These cases are generally ICSID Conventions allows funders below in this context. the potential that settlement in everyone’s interests to ensure industry factually intensive and may require funder and funded parties to plan an may be subject to a “relationship participants, including funders and legal Considerations in Specific preliminary expert evidence to enforcement strategy at the outset discount”, or granting future service providers, meet best- practice Energy Sector Cases assist the funder to understand of a matter. contracts in place of damages. standards so that the legal system can the claim. In particular, investors’ (a) Investor-State Cases more readily dispense justice in an efficient claims often seek damages for the As with investor-state disputes, DISPUTE FUNDING IN THE and accessible manner.” The energy and mining sector loss of anticipated profits from the ENERGY SECTOR construction cases often require is the largest source of cases investment in question. The ability extensive due diligence given their The group said that it was timely for the Suitability and Current Trends registered by the International for the investor to recover these factually intensive and technical government to commission an inquiry Centre for the Settlement of types of losses is far from certain into the industry, adding that a balanced, Many international arbitrations nature. These cases may require Investment Disputes (ICSID).11 and will largely turn on the facts evidenced-based review provided Australia in the energy sector are suitable preliminary expert evidence on of the particular case. Quantifying an opportunity to be a world-leader in for dispute finance insofar as Many investor-state cases in the both questions of liability and Melissa Coade this loss can be difficult, frequently regulating the litigation funder industry. they satisfy the basic investment energy sector involve an investor quantum to assist the funder to Lawyers Weekly resulting in high-value headline criteria identified above. Common whose primary investment is understand the basis for the claim “[A regulatory regime] could be exported 27 December 2017 figures which are substantially disputes include disagreements in assets located in a single and to assess likely recovery. The globally – another opportunity for Australia reduced by the tribunal in any IMF Bentham has announced that it about the construction or jurisdiction. When a State likelihood of a counter-claim or to innovate and lead the world in this award.17 A funder may well require will assist an inquiry into class actions operations of oil and gas violates an investor’s treaty-based cross-claim will also be relevant sector,” the statement said. the help of experts to properly and third-party litigation funding, to extraction projects and power protections and that violation given the prevalence of competing The litigation funder said that for a number assess the viability of such claims be led by the Australian Law Reform production projects, commodity affects the investor’s ability to claims within construction of years it had operated under ASIC’s at the outset. Commission. contract disputes and joint venture generate cashflow from its assets, projects. licensing regime. It has also brought itself Earlier this month the federal government disputes. dispute funding gives the investor Further complications may arise (c) Long-term Supply in line with conflict regulations and other the financial ability to prosecute its when dealing with developing procedures and laws which apply to it. announced that it would examine the The Energy Charter Treaty (1994)5, Contracts and Gas Price Reviews claims against a State. countries as respondents, uptick in class actions and regulation under which a number of investor- “IMF Bentham has been a constant and particularly where government Gas price reviews will generally third-party litigation funders. One of the state disputes in the energy Although such activities are a enthusiastic proponent of regulation institutions may not be as robust occur several times over the life objectives of the injury will be to assess sector have arisen,6 contains no relatively recent phenomenon, in a measured and proportionate as is usually the case in developed of a contract and require both how to ensure costs of class actions are prohibitions on a claimant (or there is a body of case law in manner, endorsing the 2014 Productivity countries. The prospects of specialist counsel and specialist proportionate to plaintiff interests. indeed a State7) utilising dispute investment treaty cases where Commission’s recommendation to recovery may not be as strong and experts. A funder in such a case finance. The current trend appears third party funding has been introduce minimum capital adequacy “With class actions becoming more the potential for settlement may be may need to accept a relatively to be to accept dispute funding considered and largely accepted.12 requirements. common in courts across Australia, the at the whim of political influences. passive role because of the but seek to regulate it – the There is also an emerging trend Turnbull government wants to ensure the Risks of influence or intimidation strategic importance of the review “Over 16 years, IMF Bentham has Comprehensive Economic Trade of not-for-profit funding of States costs of such proceedings are appropriate may also arise in circumstances to the funded party (be it the buyer returned on average 62 per cent of Agreement entered into between defending claims, particularly and proportionate and that the interests where key witnesses reside in the or seller). Although a funder will litigation proceeds ($1.3 billion in total) to Canada and the European Union is those involving public health of plaintiffs and class members are jurisdiction against which the claim need to factor in a higher cost our funded clients. Without third-party an example of this.8 issues.13 protected,” Attorney-General Senator is asserted. All of these factors associated with the legal team and litigation funding, many of Australia’s George Brandis QC said in a statement. One driver of change in the energy As claims made in investment may add to the funder’s perception experts, such costs may be off- most prominent cases would not have proceeded and justice would have A similar inquiry is currently underway sector is the transition of energy treaty arbitrations are unsuccessful of risk and the required level of due set by the limited factual matters 14 been denied to thousands of ordinary in Victoria by the state law reform supply away from higher-carbon more often than not, they are diligence. in dispute. The commercial (oil and coal) projects towards likely to be considered relatively emphasis of gas price review Australians.” commission. (b) Construction Cases lower-carbon and renewable high-risk. Nonetheless, the arbitrations means that the funder Last week, IMF Bentham issued a energy projects, although the pace potential rewards are high, with the With a global construction sector will need to take into account statement responding to the review of the of that transition is somewhat average claim size in investor-state worth $10 trillion per year,18 both legal and commercial litigation funding industry to be undertaken uncertain.9 This change is cases estimated to be in the region it is inevitable that a sizeable considerations when assessing the by the Australian Law Reform Commission producing a new range of disputes of US$490 million.15 number of disputes arise in the likely outcome. (ALRC). being presented for funding which industry. Construction projects These types of cases are Generally, disputes over long- “IMF Bentham is available to assist the raise novel issues for the energy typically involve multiple parties distinguishable from commercial terms supply contracts (including ALRC Inquiry, however it can,” the litigation sector.10 The challenge for dispute (project owners, contractors, arbitrations in terms of their length gas price reviews) do not rely on funder said. funders is to properly assess these sub-contractors and government (ICSID cases run longer than a binary outcome. Settlement is new cases without the benefit authorities) all with competing The group, which identifies as a “pioneer” commercial arbitration cases) and a real possibility, which may make of existing precedents and prior interests. This provides fertile in the Australian class actions funding costs (parties incur an average such claims attractive to dispute experience. ground for disputes, which are space, welcomed the prospect of creating of around US$8 million running funders. However, a resolution to often referred to arbitration. a new regulatory regime for the industry. Despite these ongoing changes, cases heard by ICSID Tribunals as a dispute over a long-term supply “We believe ethics and transparency are disputes common to the energy opposed to parties to commercial At the outset, a potential funder contract often involves agreement key components of third-party funding,” sector are frequently referred to arbitration cases who have an will be interested in understanding to revised ongoing prices or 16 the statement from IMF Bentham said. funders and certain categories of average spend of £1.5 million ). whether the parties intend to quantities. The commercial benefit disputes present unique risks and This increases the funder’s maintain on-going commercial to the funded party may therefore 35 The CIArb Australia News December 2017 The CIArb Australia News December 2017 36
accrue over time and the funding Joint venture disputes also CONCLUSION arrangement will need to allow for present challenges common to The dispute finance industry is the calculation and distribution of other energy sector disputes growing in size and sophistication the funder’s return accordingly. to cater to the needs of modern- including: they are often factually (d) Joint-venture disputes day corporations and users of intensive (failed joint ventures, in international arbitration. The result Although joint ventures are an particular, are likely to involve hotly is a highly adaptive, innovative tool extremely common form of contested mutual allegations of to manage risk, reduce cost, raise ownership in the energy sector, capital and control cashflow. The they are productive of disputes repudiatory conduct); one joint nature and prevalence of disputes – approximately 25% of joint venture party may be a local entity in the energy sector provide ample ventures in the construction opportunity to secure the benefits 19 in a developing nation, or a State- industry end up in a dispute. of dispute finance. Owned Enterprise (which raises Some joint venture disputes may International disputes lawyers similar issues to investor-State not be suitable for dispute funding, and industry participants should particularly those cases where claims, above); and claims arising actively investigate financing declaratory relief is sought (for from failed joint ventures often options for current and future example, removal of the operator disputes, develop familiarity with seek damages for lost profits, or manager of the joint venture) the various offerings and stay or where the relief may be difficult the calculation of which may informed of developments. There to value for the purposes of be speculative and may require is no doubt that dispute finance calculating the funder’s entitlement an early expert assessment if is becoming and will remain a (for example where the claimant mainstay of the international seeks the transfer of shares in the the case is to be considered for arbitration landscape, particularly joint venture). funding. in the energy sector. CIArb Australia Annual Dinner 2017 7 October 2017 1. J William Rowley QC (2017), The Guide to Energy Arbitrations, Global Arbitration Review, 2nd Edition, Editor’s Preface, pg vii. 2. In the 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, conducted by Queen Mary University of London and White Case LLP, 68% of participants cited ‘cost’ as the ‘worst characteristic of arbitration’. The cost of arbitration is often compounded by the international nature of 7:00 - 7:30 pm Dinner Address the dispute, requiring multi-jurisdictional and often specialist legal teams, as well as institutional fees, arbitrator costs and hearing venue hire. Arrival drinks and canapes Alexis Mourre 3. Based on anecdotal reports and regular information released to the market by commercial disputes funders. 4. Indeed, the definition of third-party dispute finance has been the subject of considerable debate among commentators, regulators, lawyers and funders. In a President, ICC International Court of Arbitration recent Draft Report for Public Discussion (1 September 2017) produced by the ICCA-Queen Mary Task Force on Third-Party Funding in International Arbitration, 7:30 - 11:30 pm the Task Force dedicated some 30 pages to the consideration of various definitions. CIArb Australia International Arbitration Essay Dinner 5. The Energy Charter Treaty entered into force in April 1998. It presently has 54 signatories (including the European Union and Euratom). Presentation 6. The ICSID Caseload – Statistics (Issue 2017-2) indicates 13% of cases commenced in fiscal year 2017 as at 30 June 2017 relied on the Energy Charter Treaty as Sculpture Terrace, Level 4, MCA James Healy the basis for establishing ICSID’s jurisdiction. Vice President, CIArb Australia 7. Although unusual, one example of a State utilising dispute finance was the case of RSM Production Corporation v Grenada (see para 5 of the decision in ICSID Master of Ceremonies Case No ARB/05/14 Annulment Proceedings). 8. Article 8.26 specifically deals with Third Party Funding in the context of investor-state disputes. Carson Scott Closing Remarks 9. BP Energy Outlook 2017. Available online Chief Business Correspondent & Anchor Carson Scott 10. A recent example of these novel issues was the investor-state dispute in Eiser Infrastructure Ltd and, Energia Solar Luxembourg S.à r.l. v Kingdom of Spain (ICSID Case No. ARB/13/36) which concerned the effect of electricity market reforms implemented by the Spanish government which removed incentives to solar Sky News Australia Chief Business Correspondent & Anchor, Sky News energy projects. The claimants were partially successful in that case (obtaining an award of €128 million), although the award is the subject of pending annulment Australia proceedings. President’s Welcome 11. The ICSID Caseload – Statistics (Issue 2017-2) indicates 41% of cases commenced in fiscal year 2017 as at 30 June 2017 are from those economic sectors. Caroline Kenny QC Photos: Rick Stevens 12. See for example Oxus Gold plc v Republic of Uzbekistan, UNCITRAL, Final Award, 17 December 2015 at [127] President, CIArb Australia 13. In 2015, Bloomberg Philanthropies and the Bill and Melinda Gates Foundation announced the creation of the Anti-Tobacco Trade Litigation Fund, to provide financial support for low- and middle-income countries that have been sued by tobacco companies in investor-state cases. 14. Investment Treaty Arbitration: How much does it cost? How long does it take? (2014), a survey by Allen & Overy LLP. Available online at http://www.allenovery. Sponsor’s Welcome com/publications/en-gb/Pages/Investment-Treaty-Arbitration-How-much-does-it-cost-How-long-does-it-take-.aspx Will Alstergren QC 15. Ibid. 16. O’Reilly, Michael, Costs in International Arbitration: London, September 27-27 2011 (2012) 78 Arbitration, Issue 1. President, Australian Bar Association 17. Although the average claim size in investor-state arbitration is above US$490 million, the average award is approximately US$76 million. See Investment Treaty Guest Speaker Introduction Arbitration: How much does it cost? How long does it take? (2014), a survey by Allen & Overy LLP. Available online 18. The construction industry’s productivity problem. The Economist, 17 August 2017. Available online Dr Stephen Lee 19. Global Construction Disputes Report 2016, Arcadis. Available online Vice President, CIArb Australia 37 The CIArb Australia News December 2017 The CIArb Australia News December 2017 38
Master of Ceremonies Address
Carson Scott Chief Business Correspondent & Business Anchor Sky News Australia View Profile
hief Justice, Justices, ICC's Alexis Mourre ... trading, by the ebullient Will Alstergren Distinguished Guests momentarily, the City of Lights for QC ... the result on display from at home and abroad, the City of Sydney: proof positive tonight: arbitrators breaking Cladies and gentlemen. the Tyranny of Distance hasn't bread with handmaids from entirely been Trumped by the Chambers. Margaret Atwood Hello, Good Evening and Welcome power of our proximity to Asia. meets Susskind and Susskind's to the Chartered Institute of Alexis will shed light on the perils The Future of the Professions. Arbitrators Australia Annual Dinner. of letting too much light in on Disruption with a happy ending. I'm Carson Scott, your MC tonight the majesty of your trade ... To Innovation WITHOUT government ... As befits this showcase venue, paraphrase, 'if it ain't broke, don't intervention. Turnbull et al take the MCA, you're about to receive fix it'. That's all still to come. note! a feast for the senses via three Long before acquiring a reputation As you might have guessed, I courses of haute cuisine, Oz-style for loitering with intent outside was always destined to be a ... Whether the beef option hails Reserve Bank of Australia refugee from black letter law. from Allan Myers QC's NT cattle HQ every month to broadcast At the University of Auckland, I station remains TBC ... in any breathless, much-ado-about- gravitated towards the Socratic case, Welcome Allan, kudos to you nothing proclamations on interest electives of international law and for going head-to-head with Gina, rate decisions, I was once called commercial arbitration with the Twiggy et al, and let us all be truly to the Bar across the Tasman. On masterful David Williams QC. thankful! that note, this evening wouldn't Your trade survives and thrives Tonight's true show-stopper, have been possible without the thanks to the primacy of privacy 1. Carson Scott 2. Alexis Mourre 3. Caroline Kennedy QC 4. Will Alstergren QC 5. James Healy and James Kefford 6. Dr Stephen though, promises to be the generous sponsorship of the -- remaining OFF the front page Lee keynote speech served up by the Australian Bar Association led (such as the notion still exists). 39 The CIArb Australia News December 2017 The CIArb Australia News December 2017 40
EMINENT PRACTITIONERS Yet while this might seem to clash keynote speaker Alexis Mourre. befits a firebrand from the West. with what's needed for the Fourth masterminded the On that note, GATHER FOR CIARB Stephen's doctorate in law is from He's here to deliver tonight's CIArb Estate to flourish -- holding-power- Colombia University in the City Australia International Arbitration iconic design for enjoy the festivities DINNER to- account, comfort-the-afflicted- of New York, focussing on equity Essay Presentation, so without afflict-the-comfortable, inform- and private international law. That any further ado, let me welcome the House abutting for another 30 educate-interpret -- the two are deep dive has served him well in James to the stage. in fact inextricably linked by the the harbour metres minutes, at which a career where "globality" is the imperatives of training, exercising byword when you're in the thick of knowledge, judgment and ethics. from us tonight ... point, in homage resolving cross-border disputes ... Final Thanks On that note, let me welcome in Stephen's case it's taken him as CIArb Australia’s to Lucy Turnbull, to the stage Caroline Kenny far afield as Nauru which happens CEO lights may well QC, CIArb Australia's President. to be a three-hour flight from Thank you James Gianna Caroline is on the frontline when it Samoa, where the late Rt Hon comes to maintaining, enhancing Lord Cooke of Thorndon once was Totaro is, quite be switched off, Tom Lodewyke and so too to all of and building out those imperatives President of its Court of Appeal. simply, not just a covertly urging Lawyers Weekly I cited ... part-practitioner, part- As fate would have it, I conducted tonight's speakers 26 October 2017 arbitration cheerleader, what force of nature but you to exit Stage really resonates is her drive Robin Cooke's last interview at the forefront of The Chartered Institute of Arbitrators to cease playing 3rd fiddle to in 2003 in the House of Lords, a tireless advocate Left. Thank you, (CIArb) Australia has held its annual dinner, Singapore and Hong Kong and three years before he passed tonight's CIArb with members of the judiciary and media in promote Australia's credentials away. It remains one of only two for your profession Bonne Chance and interviews where technology attendance. as Destination de Jour for APAC Annual Dinner Arbitration. Several years ago, -- audio gremlins in the system -- and mine. Gianna, Goodnight. Sydney’s Museum of Contemporary Art thwarted our exchange, requiring Extravaganza: a different PM and Treasurer in I salute your provided a spectacular venue for the 2017 Canberra scuppered a tie-up Take 2 at a later date. The only Caroline CIArb Australia annual dinner, with views of between the Singapore Stock other time this happened was with conviction ... the Opera House and Harbour Bridge. Exchange and our ASX. Could this one Michael Kirby, here tonight, gloriously. As I reminded Michael Kenny QC, Will The event was held on Saturday, 7 time be different with arbitration? emblematic of the JV or a standalone, the rewards at the time, he could take some October, and was presided over by Alstergren QC, surely outweigh the risks. take comfort being in august profession's finest Sky News Australia chief business company at the very least(!) Caroline, I am but an amateur Dr Stephen Lee, correspondent and anchor Carson Scott gathered here on the stage of a professional ... Stephen, enough of my musings ... as MC. Welcome. over to you! Alexis Mourre. tonight. Alexis Mourre, president of the ICC James Healy The architect will International Court of Arbitration, was the Dr Stephen Lee special guest speaker. His address posed "Rex Tillerson never threatened Whether Sir or Madam had the not go unsung, beef or barra tonight, I trust the question, “Regulation of ethics in to resign. This is Fake News put both were to your exacting unlike a certain arbitration: how much is too much?” and out by @NBCNews. Low news and reporting standards. No expectations. Now, more then analysed current proposals and trends in verification from me" ever, expectations of shareholders individual who arbitration regulation. are to the fore. This year alone, As the author of 'The Despot's Mr Mourre explored the idea of creating BHP has had the blowtorch Apprentice' Brian Klass pointed applied careof one of the world's a central body to discipline international Skynews Interview 6 July 2017 out in the wake of that tweet from largest activist hedge funds Elliot arbitrators, and unpacked the pros and political neophyte Donald Trump Management ... while boards at cons of the proposal, championed by Chief this week: "despots control the Ardent Leisure, Bellamy's and Nine Justice of Singapore Sundaresh Menon. news and only allow what they Entertainment have been shaken "verify". In democracies, news gets The CIArb dinner was attended out of complacency and forced Click here published without the "verification" not just to Think Big but Change by eminent Australian judges and of the president ... Ways. to watch barristers, including Australian Bar And to think Rex Tillerson dropped James Healy has a ringside Association president Will Alstergren a glorious career at the top of seat on this cauldron ... Fellow QC, CIArb president Caroline Kenny QC, Exxon to work for Trump! Sky News of the CIArb and CIArb Australia University of Melbourne chancellor Allan Suffice to say the role of Vice Vice President, his focus is on Business interview Myers AC QC, NSW Supreme Court Chief President at CIArb is a breath of shareholder actions to change on International Justice Tom Bathurst AC, and retired High fresh air by comparison, as Dr control of boards as much Arbitration Court justice Michael Kirby AC CMG. Stephen Lee is about to prove as as construction and resource he rises next to introduce tonight's disputes offshore as well as on, as 41 The CIArb Australia News December 2017 The CIArb Australia News December 2017 42
law instrument. issues of counsel conduct. TRIBUNALS AND And the LCIA Annex applies Under the LCIA Annex or the IBA INSTITUTIONS CAN only to LCIA cases, while the Guidelines, the arbitral tribunal MONITOR ETHICS, IBA Guidelines may apply to any may deal with situations of counsel ARGUES MOURRE arbitration, ad hoc or institutional. misconduct affecting the integrity of the proceedings, while Bars It should in this regard be noted still exercise the powers vested that the Australian Centre upon them by the law to enforce for International Commercial professional ethical rules. Arbitration, and more recently, the ICC Court, have decided Creating a disciplinary body in to officially endorse the IBA between the jurisdiction of arbitral Guidelines. tribunals and the powers exercised by bars would only have had the Part of the arbitration community, effect of creating confusion where however, has remained fiercely Alison Ross there is now relative clarity. opposed to any form of regulation Global Arbitration Review 9 October 2017 of counsel conduct in international In addition, it would have had arbitration. the potential of disrupting the Speaking in Sydney ahead of the IBA arbitration by adding parallel annual conference this week, the president Such was the case of the Swiss of the ICC International Court of Arbitration litigation with the risk of delays and Arbitration Association, which was Alexis Mourre has declared himself “a disruptive tactics. initially adverse to any form of rules strong proponent of the transnational regulation of ethics in arbitration” but or guidance on the question. Ethical questions pertaining against proposals for bodies other than to international arbitrators are The ASA has however, in 2014, arbitral tribunals and institutions to enforce fundamentally different. made a remarkable U-turn and them. called for the creation of a Global Why? “What is needed are transnational set Arbitration Ethics Council. of standards such as those established Keynote Address Because, in contrast to counsels, by the IBA, the Chartered Institute The underlying idea behind that arbitrators perform a jurisdictional of Arbitrators or arbitral institutions initiative was that the enforcement function. themselves,” Mourre said. Alexis Mourre of ethical rules applying to counsel “What is not needed is the addition of They are adjudicators, and as such, President ICC in arbitration should not be left in new bodies such as the ethics council whenever the parties have opted proposed by the Swiss Arbitration the hands of arbitral tribunals and International Court of Arbitration for institutional arbitration, they Association for counsel misconduct or the should rather be entrusted to a View Profile have submitted to the regulatory central body proposed by [Singapore’s neutral, transnational ethical body. chief justice and CIArb patron] Sundaresh powers of the institution chosen Menon for arbitrator misconduct.” That proposal was eventually by the parties to administrate the “Let arbitrators deal with counsel adies and Gentlemen, As we What is at stake is ensuring the In 2013, the IBA adopted abandoned for reasons that are arbitration. all know, Marx and Engels in legitimacy of the process. its Guidelines on Party misconduct, let arbitral institutions deal easy to understand. with arbitrator’s misconduct and the sheep their Communist Manifesto Representation in International Under the rules of most arbitral It is also the dissemination of the will be well guarded.” said that Europe was Arbitration. It was in fact unworkable, for institutions, arbitrator’s misconduct L arbitral culture, guaranteeing a any central disciplinary body for may result in the removal of the Speaking at CIArb Australia’s annual haunted by communism. dinner at the Museum of Contemporary level playing field, and opening the Immediately thereafter, the counsel in international arbitration arbitrator from the tribunal. One of the questions that have Art in Sydney on Saturday night, Mourre practice of international arbitration LCIA adopted an Annex to its would have to be endorsed by explained why regulation of ethics in been haunting arbitration in recent For example, article 14-1 of to a new generation, in particular Rules, establishing ethical duties institutions such as the IBA and international arbitration is needed. years is certainly regulation, or the ICC Rules provides that an in emerging jurisdictions. for counsel appearing in LCIA ICCA, as well as by major arbitral “We can no longer navigate in uncharted self-regulation, of ethical matters. arbitrator may be challenged for arbitrations. institutions such as the ICC. waters, where the assumption is that the The question I want to address an alleged lack of impartiality or non-written rules of the game are known As a matter of introduction, let me today is therefore not whether While the LCIA Annex is less However, the LCIA by adopting an independence, or “otherwise”, by a limited number of insiders,” he said. be very clear. ethics should be regulated in specific as to its content than Annex to its Rules, and the ICC which includes any situation of Rules on ethics will help ensure the I am a strong proponent of the arbitration, but how and to what the IBA Guidelines, both set of and ACICA by endorsing the IBA misconduct. legitimacy of the process, disseminate Guidelines, had made different – arbitral culture, guarantee a level playing transnational regulation of ethics in extent. rules have an important point in See also Article 10.2 of the LCIA and in my view preferable – policy field and open the practice to a new arbitration. common: they entrust the arbitral Rules, and 17.2 of the SIAC Rules. In this regard, the problems are choices. generation, including practitioners in tribunal to deal with matters of emerging jurisdictions, he said. “Regulation We can no longer navigate in clearly different for counsel and for On the other hand, a failure to counsel misconduct. By adding to the already existing goes hand-in-hand with transparency and unchartered waters, where the the arbitrators. disclose, or a situation of conflict powers of the arbitral tribunal and diversity.” assumption is that the non- written An obvious difference is to be of interest, may also constitute As for the ethics of counsel, we all of professional bars, the proposed Discussion about regulating counsel rules of the game are known by a noted, however: breaches of the ethical duties of an remember that at the 2010 ICCA new disciplinary body would have conduct in international arbitration began limited number of insiders. arbitrator. in 2010, when US arbitrator Doak Bishop Congress in Rio, Doak Bishop the LCIA Annex is mandatory for aggravated the problem posed by called at the ICCA Congress in Rio de Regulation goes and-in-hand with called for a code of ethics in all users of LCIA arbitration, while the multiplicity of potential rules Questions of impartiality and Janeiro for a code of ethics to transparency and diversity. international arbitration. the IBA Guidelines remain a soft and forums competent to deal with questions of ethics are therefore 43 The CIArb Australia News December 2017 The CIArb Australia News December 2017 44
bind them. In the years that followed, intrinsically linked, and it is one primarily to institutional arbitration. the IBA adopted its Guidelines on Party of the most important roles of an Sundaresh Menon does not Representation in International Arbitration arbitral institution, not only to select and the LCIA adopted an annex to its rules define precisely the nature of arbitrators, but also to discipline establishing ethical duties for counsel. the complaints that would be those of them of them who serve Both sets of rules entrust dealing with submitted to the new disciplinary counsel misconduct to the arbitral under its rules. body, but based on his lecture, tribunal, Mourre noted. The LCIA annex is There is now however an idea, mandatory for all users of LCIA arbitration. one would suppose that these The IBA guidelines are soft law that which is clearly inspired by the complaints would have to include can apply to any ad hoc or institutional Swiss Arbitration Association’s questions of independence, failure arbitration and have recently been officially proposal regarding counsel, to to disclose and other types of endorsed by the Australian Centre for create a central body to discipline procedural misconduct. International Commercial Arbitration and international arbitrators. the ICC Court. In case of a complaint, the The idea has been expressed Mourre went on to consider the Swiss CIArb would constitute a panel Arbitration Association's 2014 proposal last year by the Chief Justice of of arbitrators having to decide for the creation of a Global Arbitration Singapore, Sundaresh Menon, on whether to take sanctions. Ethics Council, calling it "a remarkable the occasion of a lecture given at U-turn" given its previous opposition to any form of regulation of counsel conduct in a Chartered Institute of Arbitrators It is not known whether the international arbitration. conference in Malaysia. institution administering the case, The idea behind that proposal was that Sundaresh on that occasion said the parties or the remaining the enforcement of ethical rules applying the following: arbitrators would be at all involved to counsel in arbitration should not in the disciplinary process, what Left to Right: Alexis Mourre (ICC), Will Alstergren QC (ABA), Caroline Kenny QC (CIArb Australia) and Carson Scott (Skynews) be left to tribunals but entrusted to a “Some of my colleagues at CIArb documents from the case could neutral, transnational body. However the and I are developing a proposal proposal was eventually abandoned as or should be submitted to CIArb, “unworkable”, Mourre said, because any for CIArb to offer to other arbitral and whether the arbitration would central disciplinary body for counsel would institutions an outsourced have to be stayed when such have to be endorsed by institutions such disciplinary adjudication process proceedings are put in motion. as the IBA and ICCA and by major arbitral in respect of complaints against institutions such as the ICC. arbitrators. Sundaresh Menon is also not Mourre expressed the view that the explicit about the sanctions that We envisage this operating establishment of such a body would have could be pronounced by the meant there were too many rules and primarily in the context of disciplinary body. forums competent to deal with counsel arbitrations administered by conduct, including arbitral tribunals and institutions. He mentions “the removal of the national Bars. Creating an additional body James Healy (CIArb Australia Vice President), Edwina Kwan James Keeble, Con Meys and David Laing (Systech would have created confusion and played transgressing arbitrator from the (King & Wood Mallesons) and Gordon Smith (CIArb Australia Where a complaint arises in a International) into the hands of those wishing to disrupt given case, we envisage that the arbitral institution’s list of approved Councillor) or delay cases by adding parallel litigation, rules will establish a tiered system arbitrators”. he said. under which the complaint will first Far “preferable”, he argued, are the policy But not all institutions have such choices of the LCIA, ICC and ACICA, be raised to the arbitral institution lists. The ICC for example does not which allow the arbitral tribunal to deal administering the arbitration. maintain a list of arbitrators. with counsel misconduct while national bars “still exercise the powers vested upon If justifiable cause for complaint is Nor does the LCIA. them by the law to enforce professional found on a preliminary inquiry by ethical rules.” the institution, the matter will then I would now like to give you two or Arbitrator ethics be referred to CIArb, which will three reasons why I believe that the In contrast to counsel in international consider the matter further. creation of such a body might not Catherine O’Keefe (Corrs Chambers Westgarth), Elizabeth be a good idea. Brimer (Vic Bar), Abhinav Bhushan (ICC South Asia), Martin Donald Robertson (Herbert Smith Freehills) and Richard arbitration, international arbitrators are CIArb may take no further action, adjudicators and have "submitted to Scott QC (Vic Bar), Bronwyn Lincoln (Corrs Chambers Morgan (QLD Bar) the regulatory powers of the institution or it may administer disciplinary I say “might”, with two caveats. Westgarth), Paul Sekhon (UTS) and Claire Bagnall (GAR) proceedings presided over by chosen by the parties to administrate the Read more arbitration," Mourre said. arbitrators selected from a list of Read more qualified practitioners maintained by CIArb. A finding of misconduct could result in sanctions which can include, for example, the removal of the transgressing arbitrator from the arbitral institution’s list of arbitrators”. Carson Scott, Mel Schwing. Dr Ozlem Susler (LaTrobe Bronwyn Lincoln (Corrs Chambers Westgarth) and Prof University) and John Rundell (Stratica International) Greg Tolhurst (NSW Bar) This system would therefore apply 45 The CIArb Australia News December 2017 The CIArb Australia News December 2017 46
Left to Right: Caroline Kirton QC (Victorian Bar), Patrick O’Sullivan (Australian Bar Association), Monique Carroll (King & Wood Mallesons) and Left to Right: Allan Myers AC QC, The Hon Michael Kirby AC CMG and The Hon Chief Justice Tom Bathurst AC (Supreme Court of NSW) Albert Monichino QC (CIArb Australia Immediate Past President)
The Hon Justice Julie Ward (NSW Supreme Court), Peter McQueen (Independent Arbitrator), Deborah James Healy (CIArb Vice President and Francis Burt Eugenia Levine (Vic Bar) and Dr Vicky Priskich (Vic Bar and Chrissa Loukas SC (NSW Bar), Edwina Kwan (King & Wood Tomkinson (ACICA), Gregory Nell SC (NSW Bar) and Chambers), Dr Shane Monks (CIArb Australia Councillor and CIArb Australia Vic State Convenor) Mallesons) and James Healy (CIArb Australia Vice President) Magistrate Julie Soars (NSW Local Court) Qld Bar) and Holly Monks (King & Wood Mallesons)
Alec Emmerson (Clyde & Co), Kristian Maley (Jones Day Diana Loots, Philip Loots, The Hon Malcolm Craig QC John Arthur (CIArb Australia Treasurer and Vic Bar) and Dr Paul Kenny (Allens) and The Hon Justice Margaret Beazley and CIArb Australia Councillor) and Caroline Swartz-Zern (NSW Bar), Holly Wang and Sydney Jacobs (NSW Bar) Stephen Lee (CIArb Australia Vice President and Qld Bar) AO (NSW Court of Appeal) (Allens)
Sandrah Foda (CIArb Australia Councillor and NSW Bar), Cindy Penrose (CEO, ABA) and The Hon Michael Kirby AC Dominique Hogan-Doran SC (NSW Bar) and The Hon Brenda Horrigan (Herbert Smith Freehills), Alexis Mourre Anne Hoffman (Herbert Smith Freehills) and Jo Delaney CMG Justice David Hammerschlag (NSW Supreme Court) (ICC) and Abhinav Bhushan (ICC South Asia) (CIArb Australia Councillor and Baker McKenzie) 4741 The CIArb Australia News December 2017 The CIArb Australia News December 2017 4842
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Left to Right: The Hon Michael Kirby AC CMG, James Kefford (Monash University and Washington College of Law) and Olivia Cox (Monash University)
noted that courts are expressly The New York Convention enforce them,11 and (4) that the Arbitral Autonomy and Judicial Intervention: The constrained in the scope of imposes the following obligations courts within signatory states can their jurisdiction to oversee upon contracting states: (1) to only refuse to recognize and/or Balancing Act of the Judiciary international arbitral proceedings. “recognize (sic) an agreement enforce an arbitral award in the This jurisdictional constraint is in writing under which the limited circumstances provided.12 derived from the United Nations parties undertake to submit These circumstances include 2017 CIArb Australia Essay Winner Convention on the Recognition to arbitration. . . concerning the invalidity of the arbitration James Kefford and Enforcement of Foreign a subject matter capable of 6 9 agreement, inadequate notice Monash University and Washington College of Law Arbitral Awards, to which some settlement by arbitration,” (2) 157 States are signatory,7 and courts within signatory states, of arbitration proceedings, or View Profile the UNCITRAL Model Law, which in circumstances where an where the tribunal has derogated has been imported into the arbitration agreement is valid, from the agreement, such as in lthough arbitration has manifested in regional courts the grounds of denial of natural domestic laws of 31 jurisdictions must “refer the parties to composition or in procedure.13 been cited as making exercising international comity justice, and consider it in the in the Asia Pacific region, arbitration” at the request of one Read More the court system in considering international context of the balancing act that including six out of the ten of the parties,10 (3) to recognize Airrelevant,1 courts play arbitration decisions.3 It has Justice Middleton described. ASEAN countries.8 arbitral awards as binding and to an integral role in arbitration’s been argued that this comity After considering this case and rise to prominence in resolving means that courts are reluctant others from the region, this paper international commercial disputes. to intervene in circumstances of will discuss the impact that 1. Tania Sourdin, “The Role of Courts in the New Justice System” Vol. 7 Yearbook on Arbitration and Mediation, Article 11 (2015) 95, 96. This role requires courts to arbitral proceedings, and that the development of a regional 2. Justice John Middleton, ‘Commentary by Justice John Middleton on International Commercial Arbitration, The Role of the Courts; The Enforcement of Arbitration delicately balance recognizing consequently an “intervention jurisprudence, brought about by Awards and Anti-Arbitration Injunctions By Justice Clyde Croft and Bronwyn Lincoln’ (Speech delivered at the International Commercial Litigation and Dispute Resolution Conference, 27 & 28 November 2009). arbitral autonomy, providing light” approach to judicial judicial comity, has in making arbitration in the Asia Pacific 3. Chief Justice James Allsop AO, ‘International Commercial Arbitration – the Courts and the Rule of Law in the Asia Pacific Region’ (FCA) [2014] Federal Judicial judicial force to arbitral awards, intervention in the arbitral process Scholarship 22. 4 and reassuring parties that their has developed. While this may region an attractive prospect for 4. American Arbitration Association, ADR and the Law (Juris Publishing, 21st ed, 2007) 303. rights will still be protected if be true, this is not to say that parties involved in international 5. [2016] HKEC 2128. something goes awry. As put courts will refuse to intervene commerce. 6. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature 10 June 1958, 330 UNTS 38 (entered into force 7 June 1959). by Justice John Middleton, in circumstances where it is Hereinafter the New York Convention. “there must be enough court required. This paper will consider The limited scope of judicial 7. United Nations International Commission on Trade Law, Status: Convention on Enforcement of Foreign Arbitral Awards (New York, 1958) (6 March 2017) UNCITRAL. involvement to support and the recent Hong Kong decision intervention in international 8. Gary F. Bell, The UNICTRAL Model Law on International Commercial Arbitration in Asia (19 May 2017) National University of Singapore. encourage arbitration but not of Sun Tian Gian v Hong Kong arbitration: the New York Convention and the UNCITRAL 9. New York Convention, art. 2(1). so much as to stifle it.”2 In the & China Gaw (Jilin) Ltd,5 where Model Law. 10. Ibid art. 2(3). Asia Pacific region, the need the court heard a challenge to an 11. Ibid art. 3. to develop arbitration has arbitral award and intervened on At the outset, it ought to be 12. Ibid art. 5. 51 The CIArb Australia News December 2017 The CIArb Australia News December 2017 52
a case in a proximate time zone millennia. have followed a similar trajectory, makes it easier to coordinate showing increased arbitration- The country's first modern proceedings and "can enhance friendliness and introducing arbitration laws were based on the energy and enthusiasm of specialised judges to deal with English laws, with each state and participants in the arbitration". arbitration-related matters. territory adopting uniform acts. In Jones listed other practical 1974 it passed its first international He quoted extra-curial remarks by advantages Australia offers, arbitration act, incorporating both the former Chief Justice of New including access to high quality the New York Convention and the South Wales James Spigelman: international arbitration practises ICSID Convention. “The longstanding tension based there or in the region and between judges and arbitrators The current laws regulating the Australian Disputes Centre, had disappeared. Most judges both domestic and international a custom-designed venue for no longer consider arbitration as arbitration also incorporate the arbitration in Sydney. some kind of trade rival. Courts UNCITRAL Model Law, which has now generally exercise their “There is a clear right for led to uniformity of jurisprudence statutory powers with respect to international firms to practice local throughout the country. commercial arbitration by a light domestic litigation, which cannot The familiarity with the Model Law touch of supervisory jurisdiction be said of Singapore or Hong that Australian arbitrators and directed to maintaining the integrity Kong,” he said. counsel have gained has equipped of the system.” While it is common for them to compete for arbitration Spigelman's words appear to be “Sydneysiders” to lament the cost work internationally and locally A highway through Australia's outback borne out by recent rulings. The of living, Jones noted that the and the expertise of local judges Federal Court of Australia ruled city outperformed Asian rivals in is "equally impressive," Jones in Uganda Telecom v High Tech a cost of living index published argued. Telecom that “the whole rationale by The Economist in early 2017. He continued that Australia’s of the [international arbitration] The Sydney Arbitral Advantage international arbitration act in many act and thus the public policy of website estimates that the Overcoming the tyranny of distance respects “goes beyond” the Model Australia is to enforce […] awards average nightly rate of hotel Law – with provisions to improve wherever possible”. accommodation in the city is up to the arbitral process on an “opt out” US$200 less than in other major The Australian High Court – the basis. These include provisions 11 October 2017 hubs, he said – with Australia’s top court in the country – said in ensuring the confidentiality of Alison Ross and Cosmo Sanderson recent dollar depreciation making TCL Air Conditioner v the Judges proceedings and allowing parties it even cheaper than it was. of the Federal Court of Australia Global Arbitration Review to obtain subpoenas from the that the grounds of appeal of Australia also leads the way court or compel witnesses to be awards are limited to those in technology – with both the examined by the arbitral tribunal. espite “the tyranny of shortage and exporting domestic class on an A380; or as more in the Model Law and a non- Australian Centre for International distance” which has commodities such as wheat and often the case by state-of-the-art Tribunals also have the power to interventionist approach is needed. Commercial Arbitration and the shaped its history, Australia wool before the building of a teleconferencing." press on with proceedings and courts actively promoting its use in In particular, a high threshold has has positioned itself as an railroad to traverse the country. make an award when a party D disputes. been set by the courts for setting attractive venue for international Close to Asia is failing to assist and to order They also forced the early aside awards for breach of natural arbitration in the Asia Pacific and In line with the multiculturalism security for costs, interest on Australian settlers to get out into Australia's emergence as a seat justice, Jones said – it must globally, Doug Jones has told an of Australian society as a whole awards and the taxation of costs. the world on perilous sea voyages. is linked to the emergence of the have resulted in real unfairness event in Sydney. (a census in June 2016 indicated economies of Asia Pacific and the An “opt in” provision permits the or injustice in the conduct of the To this day, Jones said the that 28% of the population was increasing number of Asia-related consolidation of proceedings on dispute resolution process. Speaking at an LCIA symposium concern of many thinking about born overseas), real effort has arbitrations, Jones argued (the ICC multiple grounds. at Herbert Smith Freehills on using Australia as an arbitral seat been made to ensure diversity in Court rulings with respect to saw a 22% increase in parties from the fringes of this week’s IBA is "how far away you think you are arbitration, Jones further argued. Importantly, in Jones’s view, the arbitration agreements and South and East Asia in 2016). conference, the Australian from the rest of the world" Between 2011 and 2016 a quarter act also restricts the meaning of arbitrability are equally supportive arbitrator reflected on “the While a Hong Kong party of ACICA’s arbitrator appointments “public policy” in Articles 34 and of proceedings, he said. "I respectfully disagree," he said. tyranny of distance”. The phrase arbitrating in London has to deal were female, a proportion that is 36 of the Model Law to situations "Travel is swifter. Markets are was coined in 1966 by historian with a seven-hour time difference, set to rise following its signature where an interim order or award ACICA better connected. Communication Geoffrey Blainey and conveys the Sydney is only two or three hours of the Equal Representation in was affected by fraud, corruption is immediate and business As well as being a seat for challenges once caused by the ahead and the time in Perth is Arbitration Pledge last year. or breach of natural justice. between Sydney, London, New international arbitrations under country’s remoteness from the rest the same, he noted. The flight York, Beijing and many other ICC, LCIA and other rules, of the world and the distance of its from Singapore to Sydney is The law The courts commercial hubs has never been Australia has its own institution, urban centres from one another. also shorter than the flight from easier. What was tyrannical in Arbitration has “a rich history” in Australia’s “narrative of pro- ACICA, which is the default Singapore to London. These challenges led to political the days of yore has become a Australia, Jones said. Aboriginal arbitration reform” has not been appointing authority for cases isolation and problems both lot less so on a muscle-relaxer This is about more than "mere Australians have used community restricted to legislation, Jones under the international arbitration importing supplies in times of cushioned direct flight in business convenience", he argued. Holding elders to resolve disputes for said. The state and federal courts act and maintains an international 5339 The CIArb Australia News December 2017 The CIArb Australia News December 2017 5440
panel of arbitrators from which become a seat to compete with Australian lawyers increasingly appointments can be made. the likes of Singapore or Dubai. engage in investor-state arbitration, ACICA’s latest rules came into In particular, Gleeson argued as counsel or arbitrators, he said. effect on 1 January 2016 and there needs to be "substantial After the recent claim brought “encourage the containment of further investment in the arbitral against Australia by the Hong NOW gar the time and cost of international institutions Australia has to offer" Kong arm of the tobacco company arbitration” with provisions and that stakeholders should be Phillip Morris, which was denied AVAILABLE encouraging effective case making "a business case" for the on jurisdictional grounds, such management, settlement, and government to provide this. claims are very much on lawyers' consolidation and joinder, Jones radar. Key is investment in world leading said. art technology which allows much of See you at ICCA They also protect arbitrators by the administrative work in disputes granting them “robust immunity” to be done remotely without While Gleeson may have less (a key attraction for Jones who foreign counsel and arbitrators confidence than Jones that has endured the stress of being having to visit the country, he Australia has already "arrived" unsuccessfully sued by a party in argued. as a major seat of arbitration a Dubai-seated case, along with ARBITRATOR While they must put their own the essential message of their his co-arbitrators). commercial interests first, Gleeson speeches was the same. As Like other modern arbitral rules, also said there should be a drive Australia becomes more important the ACICA rules also allow for among Australian companies in global business - this year it RESEARCH captionemergency arbitration and to include Australia in "as many was ranked eighth in the world expedited arbitration where time is different guises as possible in in the Global Financial Centres of the essence. dispute negotiation clauses", Index and fourth in the Asia Pacific TOOL whether by naming it as the seat region, behind Singapore, Hong In a recent example of “leadership or place of arbitration or selecting Kong and Tokyo - it needs to focus in the field,” Jones said the centre an Australian institution or on having a dispute resolution Make arbitrator selection more straightforward, objective and published guidelines on the use of arbitrators. offering to match. tribunal secretaries to encourage cost-effective with GAR’s new Arbitrator Research Tool transparency with respect to Too often, he suggested, Its success involves building on their appointment, duties and Australian businesses and the existing arbitral framework and Exclusive to GAR, the Arbitrator Research remuneration. government officials simply showing willingness to adapt, while Tool (ART) is a unique resource to make accept "boilerplate" arbitration promoting the advantages the researching a specific arbitrator easier than What more can be done? agreements that provide for country already offers, including ever before. Jones is not the only one to disputes to be settled elsewhere a stable political landscape, a have considered how Australian when the terms of the agreement multicultural environment and low arbitration is affected by "the should be "part of the overall costs. Featuring leading arbitrator profiles, with tyranny of distance". At a lunch pricing of a contract". more added each week, ART will provide In Jones's words, the allure of held by the Chartered Institute More "skill and sophistication" is users with vital information including co- "pristine beaches, excellent of Arbitrators Australia in needed in this respect, he said. arbitrator and counsel lists you cannot get restaurants, wonderful coffee and Melbourne in July Justin When in a position of bargaining anywhere else. welcoming people" can only help. Gleeson SC, who was solicitor strength, Australian parties should general for the Commonwealth adhere to an "all Australian" policy. For those arbitration practitioners from 2012 to 2016, acknowledged In universities, Gleeson argued who were unable to attend the IBA that Australian courts and chief that there needs to be greater conference to experience these justices have shown "leadership" emphasis on training Australian for themselves, there is another bringing the principles of the lawyers to deal with legal problems opportunity to visit Australia for the Model Law and New York that raise issues "that travel ICCA Congress in Sydney in May Convention into effect and beyond our borders", bringing (early bird rates apply until the end commended parliament for “A very comprehensive product and comparative law and cultural of the week). updating statute law to enshrine a much-needed tool. As our speciality awareness to the table. "best practice overseas". evolves, we must be more transparent and Above all, the new generation of However, while Gleeson Read More accountable and this will be invaluable in lawyers needs to be flexible and thought "the future is bright" for meeting those two objectives.” "outward looking" in its approach Australian lawyers keen to access to practice and procedure, he international arbitration work, he stressed. "Parochialism here, as “A must-have.” argued more still needs to be ever, is dead". done if Australia is to overcome For more information contact: its geographical remoteness and This is particularly true as Peter Griffin [email protected] Griffin Litigation PLLC www.globalarbitrationreview.com/art
GAR ART A4 print advert.indd 3 06/04/2017 09:13 55 The CIArb Australia News December 2017 The CIArb Australia News December 2017 56
Grand Final, Federal Court of Australia
James Sullivan, ASIC; Andrew Spreadbury, Deakin University; Dr Michael Pryles AO PBM; Andrew di Pasquale, Victorian Bar; Neil Kaplan CBE QC SBS; Albert Monichino QC; The Hon Susan Crennan AC QC; Kristian Maley, Jones Day; Kathryn Browne, Monash University; Adam McNeill, Monash University; Michelle Blore, University of Sydney; and Michael Upton, University of Sydney Inaugural CIArb Australia Vis Pre-Moot
When: 16 February - 1 March 2017 Where: Melbourne, Sydney, Brisbane
number of Australian law schools participate each year in the Willem C Vis International Commercial Arbitration Moot in Vienna, or its ‘sister’ moot, the Vis (East) Moot in Hong Kong. The inaugural CIArb Australia Vis Pre-Moot brought ten Australian teams together from across Australia in the leadup to the Vis Aand Vis East for a series of simulated arbitral hearings, with CIArb members and other practitioners serving as arbitrators. Preliminary rounds were held in Brisbane, Melbourne, and Sydney in late February 2017, with four teams invited to national rounds in Melbourne on 1 March. The University of Sydney narrowly defeated Monash University in the grand final round, before a distinguished panel comprising The Hon Susan Crennan AC QC, Mr Neil Kaplan CBE QC SBS, and Dr Michael Pryles AO PBM. The panel commended Kathryn Browne of the University of Sydney for her exceptional performance. The CIArb Australia Young Members Group (Kristian Maley - Chair, Andrew Di Pasquale and James Sullivan) is grateful to all of those who volunteered as arbitrators. The Pre Moot was generously hosted by Corrs Chambers Westgarth (Sydney and Melbourne rounds), McCullough Robertson (Brisbane rounds), the Victorian Bar (finals closing function), and the Federal Court of Australia (Grand Final round). Our thanks also to Kristian Maley (CIArb Australia Council), Bronwyn Lincoln (Corrs Chambers Westgarth) and Daniel Crennan QC (Victorian Bar) who spoke at the closing function. 57 The CIArb Australia News December 2017 The CIArb Australia News December 2017 58
Drinks, Essoign Club
CIArb Australia Vis Pre-Moot
The Chartered Institute of Arbitrators (CIArb) Australia Branch Young Members Group Committee invites you to participate in the 2018 CIArb Australia Vis Pre-Moot.
The Pre-Moot is open to all Australian teams The winning team of each Preliminary Round will then competing in the Willem C Vis International be invited to compete in finals in Melbourne on 1 March Commercial Arbitration Moot in Vienna, or the 2018. CIArb Australia will assist successful teams to Vis East Moot in Hong Kong, in 2018. The Pre- attend by contributing to the cost of return airfares and accommodation for two students and one coach. Please Moot offers a unique extension of the Vis Moot see the attached reimbursement guidelines for full details. experience for Australian students. Students will face interstate counterparts and appear before Students will be required to join CIArb as a Student seasoned arbitration professionals. Affiliate member before the Pre-Moot. Student membership is free of charge. Details of student The Pre-Moot will be structured in two parts. The membership and the application, along with the Preliminary Rounds, followed by the finals to be application form, are available on the CIArb website held in Melbourne. The Preliminary Rounds will be Please register for the event by 31 January 2018 at the held at the CBD offices of supporting law firms: following link: https://goo.gl/a6o8D2. If you have any • for Queensland teams: in Brisbane on 14 questions please direct them to James Sullivan/Andrew Di Pasquale or myself at [email protected] February 2018; • for New South Wales and ACT teams: in Sincerely Sydney on 15 February 2018; and Kristian Maley Chairman • for Victorian teams: in Melbourne on 16 CIArb Australia Young Members Group Committee February 2018. If teams in Western Australia or South Australia Payment will be by reimbursement to the team’s coach after the national round. Teams will provide evidence of expenses (e.g., tax invoices) before reimbursement. participate, additional Preliminary Rounds will be Reimbursement will only be available to teams that attended the national round. A held at suitable venues. maximum amount per team will apply.
Click Here to Find out More 59 The CIArb Australia News December 2017 The CIArb Australia News December 2017 60
Left to Right: Dr Vicky Priskich (CIArb Australia Victorian State Convenor and Victorian Bar), Justin Gleeson SC and Caroline Kenny QC
2017 CIArb Australia Business Lunch
When: 20 July 2017 Where: Grossi Florentino, Melbourne Photos: David Johns
Due to the success of last year’s guests and introduced our barristers and silks, the judiciary, inaugural event, the Institute Special Guest Speaker, Justin the Victorian Government, once again partnered with Gleeson SC, CIArb Fellow Asia-Pacific Chambers of Grossi Florentino on 20 July and Commonwealth Solicitor Commerce and Industry to deliver its annual Business General (2012 – 2016), who ,heads of legal institutes, ASIC, Lunch. The restaurant’s iconic delivered a timely and insightful Asian Australian Lawyers reputation plays a central role in address, "International Association, KordaMentha, Melbourne’s legendary cultural Arbitration: What Can Corrs Chambers Westgarth, and food scenes. Celebrities, Australia Learn From Current Herbert Smith Freehills, King & scholars, captains of industry Developments Overseas?". Wood Mallesons, Allens, Baker and people from all walks of Victorian State Convenor, Dr McKenzie, Russell Kennedy, life enjoy its enduring Italian delivered the Vicky Priskich Litigation Capital Management hospitality and fine dining. Held vote of thanks. Sponsored by the Limited, PPB Advisory, Viva in the beautiful Mural Room, Victorian Bar and CommBar, Energy, and universities. CIArb Australia President, the sold out lunch attracted a Caroline Kenny QC, welcomed diverse range of guests including 61 The CIArb Australia News December 2017 The CIArb Australia News December 2017 62
What deserves emphasis is was vitiated by jurisdictional seat, and enable domestic that other forms of international error under Australian domestic courts of that seat to exercise arbitration, particularly investor- public law due to misleading limited supervisory powers over state arbitration, are increasingly statements by the investor. That the arbitration. Enforcement of engaging Australian-based in turn required expert evidence an investment award against a practitioners, whether as arbitrator from competing retired Australian recalcitrant State might engage the or counsel. judges to explain to a Tribunal UNCITRAL Model law or the New Investor-state arbitration is a drawn from Germany, Switzerland York Convention. and the United States a domestic curious creature. It arises out On the other hand, suing a State, concept – jurisdictional error – that of a combination of reciprocal under any form of international befuddles most top level Australian promises between States in a arbitration or litigation, raises its JUSTIN GLEESON SC public lawyers! Business Investment treaty (BIT) or own challenges. States tend to CIARB FELLOW AND COMMONWEALTH SOLICITOR GENERAL (2012 – 2016) Free Trade Agreement to accord There is much debate, especially demand very long lead times to View Profile certain defined protections to the overseas, about the legitimacy of comply with procedural directions; investors of the other State, plus investor-state arbitration. Critics to take restrictive views of what an advance agreement to submit point to its lack of consistency documents or witnesses should be disputes with such investors to in the development of principle, produced to the Tribunal; to insist arbitration. made worse by the absence on extremes of confidentiality, and International Arbitration – What Can Australia Typical protections include of a doctrine of precedent or so on. Litigation strategy needs promises not to expropriate the established appeal mechanisms. to offer Tribunals practical options which respect legitimate State investments of investors of the For present purposes, what is Learn From Current Developments Overseas? sensitivities while also enabling the other State without due process important is that there is a very true legal and factual merit of a and full compensation; promises large body of treaties in force with to accord fair and equitable claimant’s case to be exposed for Introduction breadth and depth of international The variety of forms of arbitration clauses which invite treatment to those investments; decision. arbitration, whether commercial, international arbitration such claims. It is, or should be, Thank you for the opportunity to and promises not to discriminate investor-state or inter-state bread and butter for Australian In short, I see that the investor- talk today. Let me start with the forms of against those investments. lawyers acting for any client whose state arbitral world, and to a lesser arbitration. international arbitration. Most of us Let me start with a personal note. Such arbitrations tend to engage investment is endangered by extent the inter-state arbitral world, This year, I have returned to private are very familiar with international My training and experience as a a mix of principles of international the decision of any government are areas increasingly likely to commercial arbitration, and its key practice, seeking to continue to and domestic law. For example, – here or overseas - to examine engage lawyers based in Australia, lawyer, up until about five years benefits, as against litigation in a develop and offer my skills in in the Phillip Morris v Australia the possibility of an investor-state and to require us to be ever more ago, was as a Solicitor and then domestic court, in confidentiality the broader international market, Tobacco arbitration, one of the claim. flexible and outward-looking in Barrister, very much confined of the process and result, party whether as counsel or arbitrator. questions of international law was our practices, procedures and to the common law tradition autonomy, neutrality of venue and Investor-state arbitration, sitting on whether the investment of Phillip knowledge of other legal systems. as practised in the Courts of Accepting that my experience in ready enforceability of awards the divide between international Morris Asia Ltd in certain Phillip Parochialism here, as ever, is Australia. I had some experience international arbitration is not as around most parts of the world. commercial arbitration and inter- Morris Australia companies had of arbitration, limited mainly to deep or long-standing as with state arbitration, shares some of dead. Australian Courts over the last 15 been duly “admitted” under the domestic arbitrations under the old the features of each. Australian This brings me to a second key some of the eminent people in or so years have built a strong and 1993 Australia-Hong Kong BIT. Commercial Arbitration Acts or the lawyers need to think how best matter. this room today, let me share with growing body of jurisprudence in Australia denied “admission”, enforcement in Australian courts to structure an investor-state you some of my observations the recognition and enforcement through a domestic law route. of international commercial arbitral arbitration in this divide. Common law/civil law divide about the dynamic developments of international commercial awards Australia alleged – unsuccessfully awards. currently occurring in international rendered overseas. Less often, but in the end on this point - that the On the one hand, an investor-state It is a feature of many international My role as Solicitor-General for arbitration overseas which have a increasingly so, such an award is Australian Treasurer’s approval of arbitration could, by agreement, be arbitrations, particularly in the the Commonwealth from 2012 bearing on the future of arbitration given in Australia and available for the investment under the Foreign governed by the UNCITRAL Rules, investor-state or inter-state to 2016 opened my eyes to the in Australia. enforcement overseas. Acquisitions and Takeovers Act which would give it a domestic models, but sometimes also in 63 The CIArb Australia News December 2017 The CIArb Australia News December 2017 64
FORMER SOLICITOR- the commercial model, that the a lawyer brought up in the civilian it suspect. Equally, experts should place within the international ‘DYNAMIC GENERAL JUSTIN parties, their counsel and/or the tradition be approaching the very not be paid by a party, even on a arbitration framework, particularly DEVELOPMENTS’ GLEESON ‘PROUD OF arbitrators have grown up within same procedural or substantive non-contingent basis, as it renders given the tyranny of physical TO IMPACT AUS TOBACCO FIGHT’ very different common law and question as we are? As counsel, them interested in the outcome. distance. INTERNATIONAL civil law, or indeed wider cultural, how can we accommodate that Hence the civil law preference for Ben Butler Some things are being done right ARBITRATION traditions. very different perspective so that Tribunal appointed experts. The Australian and should be acknowledged. Emma Ryan 21 July 2017 our presentation is persuasive to A lot of attention is being So a counsel trained in the Our courts, federal and state, Lawyers Weekly a hybrid tribunal? As arbitrator on 26 July 2017 Former solicitor-general Justin Gleeson given currently to how these common law tradition needs are showing leadership in giving SC is happy to be back in private practice a hybrid Tribunal, how should we differences can influence the to be familiar with these civil effect to the underlying principles Justin Gleeson SC has spoken out after quitting as the nation’s second-most go about the most effective form about what Australia can learn from procedural directions leading up law predispositions, not only in of the Model Law and New York powerful legal officer following a bruising of deliberation with other Tribunal current developments overseas on the stoush with Attorney-General George to the hearing, the structure of framing the procedure for the Convention in the recognition and international arbitration front. Brandis last year. members? the hearing itself, how counsel case, but also to appreciate enforcement of international and During an address at the CIArb Mr Gleeson returned to the Bar and the present their arguments, the Let me give three examples. In the sub-conscious biases that foreign awards. A number of our Australiaand Grossi Florentino Business chambers he founded, Sydney’s Banco, Tribunal members may bring to Lunch in Melbourne last week, CIArb this year after resigning as solicitor- approaches arbitrators take to the terms of pleadings, a common Chief Justices deserve particular assessment of the evidence. Even fellow and Commonwealth Solicitor general in October. “It’s very enjoyable,” Mr evidence and the applicable law, lawyer has to learn to forget, commendation in that respect. General Justin Gleeson SC spoke Gleeson told The Australian. where necessary, that the best if the procedural rules permit use how the private deliberations of the Our Parliaments have brought our about his observations on the “dynamic “I’m pursuing opportunities on different pleading is a brief and succinct of common law devices, how far developments currently occurring in arbitrators are conducted inter se, Statute law up to date and in line angles — partly practising in the courts and so on. identification of the facts in issue should they be pressed, is often international arbitration overseas which of Australia and doing work here as an with best practice overseas. have a bearing on the future of arbitration and claim made, to generate a the question? arbitrator and partly seeking to do work CIArb itself has organised three in Australia”. internationally, either as counsel or as an joinder of issue which will shape But the harder areas are these. conferences this year, to discuss And thirdly, out of a much longer This was the first time Mr Gleeson spoke arbitrator. later discovery, evidence and legal If Australia is to compete with on the subject since his retirement as SG. these issues. I was privileged to list, the common law and civil law “I’ve started doing some work argument. Instead, depending traditionally have very different the likes of Singapore, Dubai In his address, Mr Gleeson said that while internationally in the investor-state attend the first of these, in Dubai in on the matter, a Tribunal may be approaches to how a Tribunal or Abu Dhabi there needs to most of the profession is familiar with arbitration space.” March, with Caroline Kenny QC. international commercial arbitration and its more assisted by a lengthy civilian finds the law and the facts. For the be, at a minimum, a substantial He declined to answer questions about further investment in the arbitral key benefits, there are other forms that are his resignation or Senator Brandis, who What emerged clearly is that memorial, which has within it a full common law, if foreign law has to starting to emerge under the spotlight. institutions Australia has to offer. had insisted that requests for advice from there are, and remain, significant recitation of the facts, arguments, be proved, it is question of fact “What deserves emphasis is that the solicitor-general had to come through differences between the common evidence and legal authorities. At requiring evidence; not so, for the One of the core factors parties other forms of international arbitration, the attorney-general’s office. Mr Gleeson law and civil law traditions which a minimum, counsel need to be civil lawyer. Equally, the civil law rely on in choosing a seat is particularly investor-state arbitration, are had also complained of Senator Brandis’s prepared at the first procedural the strength and depth of the increasingly engaging Australian-based failure to consult him on key issues, such necessarily shape international allows the Tribunal to act on its practitioners, whether as arbitrator or as terror legislation. arbitration. Nevertheless, there hearing to debate and argue for own knowledge, without the tight arbitral institutions at the seat. counsel,” Mr Gleeson said. All parties involved in promoting Mr Gleeson was speaking after giving is a degree of convergence the best style of pleading for the constraints of the common law “Investor-state arbitration is a curious a speech to the annual lunch of the occurring, in that many modern case. judicial knowledge doctrine. arbitration in Australia should be creature. It arises out of a combination professional body for arbitrators, the sets of procedural rules tend building a business case for new of reciprocal promises between states Chartered Institute of Arbitrators, in Second, as to witnesses. The It also follows from all of the in a Business Investment treaty (BIT) or to blend the two approaches. Government investment – federal Melbourne yesterday. He touched on the civil law’s dislike for cross- above, that there can be very Free Trade Agreement to accord certain biggest international dispute he dealt with Moreover, at its best, international and state - of this character. examination is notorious. What a different substantive results if an defined protections to the investors of the as solicitor-general, an unsuccessful bid arbitration should be a co- other state, plus an advance agreement by tobacco giant Philip Morris to overturn common lawyer may regard as arbitration is decided under a Second, we need to continue to operative endeavour between to submit disputes with such investors to Australia’s plain packaging laws. no more than a fair, if searching, civil as opposed to common law build the skills and sophistication arbitration. each particular Tribunal, and the The long-running case came to an end a examination of a witness’ credit approach, in terms of jurisdiction, of Australian lawyers when it “Typical protections include promises fortnight ago when the Permanent Court parties and their counsel before and substantive evidence can admissibility, liability, damages, comes to negotiating arbitration not to expropriate the investments of of Arbitration ordered Philip Morris to pay it, to establish a level playing field to a civilian lawyer look both clauses. The terms of an investors of the other state without due Australia’s costs. remedies and costs. between different traditions and brutalising and unnecessary. arbitration clause should, in a process and full compensation; promises “Personally I’m proud of it, but it’s no false to accord fair and equitable treatment to cultures and to draw upon each Unnecessary because to the civil So part of the challenge, indeed commercial contract, be regarded modesty to say that it in fact involved a fun, of this type of international those investments; and promises not to large team of government lawyers,” he to find the best possible way to lawyer the credibility of the witness as an important part of the overall discriminate against those investments.” said. resolve the particular dispute. This can usually be established by practice is developing a form of pricing of a contract. Each part Read more “The Australian memorials, as they’re will maximise the prospect that examination of the documents and “legal cosmopolitanism” necessary of a clause needs to be thought called in that matter, were in fact first the Tribunal will be able to render the objective probabilities of the for effective advocacy and about, and if necessary argued written before I took on the role of solicitor- an award that is acceptable to deliberative decision-making. general and the former solicitor-general, case, and it is for the Tribunal to over, carefully in the negotiating Stephen Gageler, now Justice Gageler of both sides and enforceable under decide what witnesses it needs to This brings me to my final topic, process. the High Court, led the Australian team available mechanisms in countries hear orally and what questions it which concerns the larger future For Australian governments, it is that prepared that very extensive written with very different domestic legal wants answered. for Australia in this international material, and in that he was assisted hard to see why when they let a systems and sensitivities about by some very able lawyers within the Equally, there remain within many, market. contract in a position of strength what a “just” legal outcome looks Attorney-General’s department. I then but not all, civil law systems they should settle for less than took over that team and those lawyers like. The future for Australia continued to do excellent work on it.” notions about reliability of an “all-Australian” clause. Even He said he was supported by a What this means for those of us witnesses that the common law The future is bright for some if negotiating from less than full team including top London QC Sam brought up within the Australian has long disregarded. In many civil individual Australian lawyers keen strength, I suspect that a full Wordsworth, NSW silk Tony Payne — now common law system yet seeking law systems, the party or its senior to access this work. What is not as empirical exercise would show that a NSW Supreme Court judge — and to practice internationally is that we officers are disqualified from giving University of Sydney professor Chester easy to see is how Australia, as a too often they accept “boilerplate” Brown, an expert on international disputes. need to be imaginative. How would evidence as their interest renders whole, builds itself as an important offered by a foreign contractor 65 The CIArb Australia News December 2017 The CIArb Australia News December 2017 66
AUS CATCHING UP that is less than ideal and possibly Indeed, it would be helpful for ON INTERNATIONAL could have been negotiated away. the general counsel of our major ARBITRATION FRONT companies to work in collaboration Emma Ryan Our companies with each other, and with Lawyers Weekly 19 September 2017 also need to think government, to discuss what can Australia is starting to see a spike in be done better in these areas. international arbitration with this set hard about these to continue over the next 12 months, Third, to mitigate the tyranny of according to a partner at a global law firm. issues. While physical distance, our arbitral Jo Delaney, partner at Baker McKenzie’s institutions need to have and dispute resolution team in Sydney, reached they must put out to Lawyers Weekly after Justin Gleeson display world leading technological SC spoke out about what Australia can their commercial facilities so that much of the learn from current developments overseas on the international arbitration front. interests first, administrative engagement with Ms Delaney has vast experience in the institution and procedural international arbitration, having worked in hearings can be done easily London for 13 years and continuing her very often those work on these matters upon her return to without counsel and arbitrators Australia almost five years ago. interests could from overseas having to travel “I think Australia is finally starting tosee the growth in international arbitration that’s be advanced by here. been occurring in the rest of the world Finally, in our universities, there Left to Right: Amy Hando (Victorian Supreme Court), Ron Salter (Independent Arbitrator), The Hon Justice Clyde Croft (Victorian Supreme for some time,” Ms Delaney told Lawyers insisting in the Court), Dr Michael Pryles AO PBM (Independent Arbitrator), Bronwyn Lincoln (Corrs Chambers Westgarth) and Caroline Kenny QC Weekly. needs to be a greater emphasis “In other parts of the world, arbitration negotiation on than at present on the training is one of the main forms of dispute resolution that parties consider and dispute resolution for every future Australian lawyer many global clients would prefer to go as one which equips them to see the arbitration instead of litigation. One of the main reasons for that is the benefit of clauses that name most legal problems as potentially enforcement of an arbitral award in many raising issues that travel beyond different countries under the New York Australia in as Convention. There are 157 State parties to our borders. The next generation the New York Convention; which means many guises as of Australian lawyers should be an award can be enforced in 157 States. A court judgment cannot be enforced in fully at home in advising on or 157 countries; it’s much more difficult to possible – whether running any international dispute Daniel Nguyen (Vic Bar) and William Lye OAM (Asian Charlotte Pache (DTI Global) and Robert Heath QC (Vic enforce a court judgment.” as seat, as place – whether arbitral or otherwise. It Australian Lawyers Association) Bar) “In Australia, in the past, we have an efficient court system. However, as we of arbitration, as should be second nature to them see more cross-border transactions to bring a comparative law and we're seeing more of our clients agreeing to arbitration clauses in contracts. As a the governing law, cultural mindset to a problem. consequence, we're seeing more and If the skill base of our lawyers is more commercial and construction as the arbitral arbitrations.” higher, the prospects for Australia “Investment arbitration has been a hot institution, as the as a whole will be enhanced. topic for some time in the arbitration And our young lawyers should be community but obviously it has become body of procedural a hot topic more recently in Australia it’s trained and capable from an early Justin Gleeson SC and Jennifer Batrouney QC (President, Martin Scott QC (Vic Bar) and Michael Whitten QC (Vic been very much a hot topic with the Philip age in sitting as arbitrator, at first in Vic Bar) Bar) Morris (Plain Packaging) case," she said. rules, as the “Justin Gleeson discussed investment smaller disputes, as is very much arbitrations in the context of where nationality of one the norm overseas. the investment may be endangered by a decision of the government, which or more of the could impact on the investment. That is certainly an important aspect of a arbitrators. potential investment claim. However, in other jurisdictions, particularly in England, Europe and the US, clients are being advised about investment treaties at the time that they are making an investment Peter McMullin (Asia-Pacific Chambers of Commerce and Tom Clarke (Vic Bar) and Monique Carroll (King & Wood to ensure that they have protection from Industry) and David Smallbone (NSW Bar) Mallesons) day one, i.e. investors are structuring the investment to take advantage of an investment treaty (where possible). Read more 67 The CIArb Australia News December 2017 The CIArb Australia News December 2017 68
Left to Right: Georgie Thomas (ASIC), Caroline Kenny QC, Kate Houghton (ASIC) and Mark Pangbourne (ASIC) Left to Right: Margo Harris (Victorian Bar), Michael Whitten QC (Victorian Bar) and Elizabeth Brimer (Victorian Bar)
Albert Monichino QC (CIArb Australia Immediate Past William Lye OAM (Asian Australian Lawyers Association) Justin Gleeson SC (NSW Bar) and Richard Niall QC Andrew Stephenson (Corrs Chambers Westgarth) and Dr President) and Owain Stone (KordaMentha) and John Rundell (Stratica International) (Solicitor General, Victorian Government) Vicky Priskitch
Molina Asthana (Victorian Govt Solicitor’s Office), CEO Hamish Rotstein (Rotstein Commercial Lawyers) and Graeme Thompson (Vic Bar), Donna Ross and Albert Marika Hubble-Marriott (Russell Kennedy Lawyers) and Representative (Law Institute of Victoria) and Katie Caroline Swartz-Zern (Allens) Dinelli (Vic Bar) Albert Monichino QC Gardiner (Allens)
Aldo Paciocco (ASIC), Cesar Piotti (Viva Energy) and Ben Eugenia Levine (Vic Bar), Mark Costello (Vic Bar) and Dr Claire Porter (Deakin University) and Rachel Chaprot (Vic Richard Niall QC and Sarah Fregon (CEO, Vic Bar) Davidson (Corrs Chambers Westgarth) Ozlem Susler (LaTrobe University) Bar) 69 The CIArb Australia News December 2017 The CIArb Australia News December 2017 70
sophisticated digital file base, plus its specialised judges and Arbitration the flexibility "than registrars – including in areas such most flexible any other form of as shipping and maritime law, and commercial arbitration – could dispute resolution provide a platform to participate in regional dispute resolution. Further, Singapore proceedings". "This may take a number of forms has signed up such as participation in joint arbitral or judicial tribunals, or the to The Hague provision of digital court or tribunal In a wide-ranging platforms," he said. Convention on Choice of Court speech covering 'Natural body' to do so the Federal Court's Chief Justice Allsop has Agreements, an championed the opportunity for history and its Australia to become a regional international treaty dispute settlement destination possible future, for a number of years, particularly which recognises focused on arbitration. the chief justice Chief Justice James Allsop said an international commercial court could come about through a co-operative arrangement among judgments made Australian courts. Wolter Peeters Singapore has deliberately and said artificial strategically built its profile as by the court a hub for cross-border dispute chosen by parties. intelligence would resolution. London and Dubai are "change the among other nations with a similar Australia has not. Chief Justice Allsop hints at role for Federal Court court. landscape of life King & Wood Mallesons partner in ways we cannot in global company stoushes Justin McDonnell said Australia could set itself up in the region "This would be a as the jurisdiction of the "honest predict". broker". 27 October 2017 real impediment Katie Walsh "The Federal Court is the natural body to do so," he said. to international Australian Financial Review "To a degree, the However, he said Singapore's use litigants choosing of international judges, including future must remain he Federal Court could play focused on how the existing court for a national court in this region's from Britain, the US, France, an Australian court a role in resolving cross- infrastructure could be put to use. justice system." Japan and Austria, perhaps gave system," he said. unknown," he said. border disputes between it a more "international feel". They "The court has for many years had Chief Justice Allsop suggested warring companies, Chief include former High Court judge T an international focus to its work," Australia might have already Justice Jim Allsop has suggested, Dyson Heydon (who also acts as Chief Justice Allsop said at a established an international in a push to put Australia on the an arbitrator), former NSW chief celebration of the Federal Court's commercial court, had the High He recalled a map as a settlement destination in judge in equity Patricia "Paddy" 40th anniversary. Court in 1999 not confined the Chartered Institute the Asia-Pacific region. Bergin, and former NSW Court of Federal Court's jurisdiction by Greek expression: That included judicial training and Appeal judge Roger Giles. of Arbitrators Cross-border litigation has been stopping it from hearing state assistance in the region. "If you wish to pivoting East from the traditional matters. Australia president London hub, fuelled by Singapore "The work of the court itself is "I leave it to others to exercise make the gods establishing its international highly international," he said. Caroline Kenny, energy and ingenuity in devising commercial court almost three "Many corporations and taxation, constitutionally valid frameworks to laugh, tell them years ago. China is considering most intellectual property QC, said arbitration achieve this," Chief Justice Allsop setting up its own to deal with and virtually all shipping and your plans." said. disputes arising from the mulit- international commercial arbitration offered more trillion dollar One Belt One Road matters involve international "A co-operative arrangement may initiative. parties. be possible among Australian courts. This is a venture worthy of While hinting some could think High Court impediment national consideration." about ways to set up one in Australia, the chief justice "These matters suggest a place The chief justice said the court's 71 The CIArb Australia News December 2017 The CIArb Australia News December 2017 72
Left to Right: Prof Khory McCormick (Consultant), Justin McDonnell (King & Wood Mallesons), Frances Williams (Corrs Chambers Westgarth) and The Hon Justice Roger Derrington (Federal Court of Australia)
Current Trends in the International Arbitration Market
When: Thursday, 2 November 2017 Where: Federal Court of Australia, Brisbane Chair: The Hon Justice Roger Derrington Panel: Professor Khory McCormick; Frances Williams and Justin McDonnell Photos: Stu Riley
Addressed by a distinguished panel and chaired by the Hon Justice Roger Derrington, Justice of the Federal Court of Australia, this seminar focussed on current trends in the international arbitration market. The panel presented on the following: • Litigation funding in international arbitration - Prof Khory McCormick, Consultant • Current and emerging trends: a practitioner’s perspective - Frances Williams, Partner, Corrs Chambers Westgarth • The Singapore International Commercial Court and related issues - Justin McDonnell, Partner, King & Wood Mallesons 73 The CIArb Australia News December 2017 The CIArb Australia News December 2017 74
Left to Right: Andrea Martignoni (Allens), Georgia Quick (Ashurst), Gitanjali Bajaj (DLA Piper) and The Hon Chief Justice James Allsop AO (Federal Court of Australia)
Achieving Greater Efficiency in International Arbitrations
When: Wednesday, 16 August 2017 Where: Federal Court of Australia, Sydney Chair: The Hon Chief Justice James Allsop AO Panel: Andrea Martignoni; Georgia Quick and Gitanjali Bajaj Photos: Rick Stevens
Addressed by a distinguished panel and chaired by the Hon James Allsop AO, Chief Justice of the Federal Court of Australia, this seminar focussed on what could be done in achieving greater efficiency in international arbitrations. International arbitration rules and practice continue to evolve in an effort to achieve greater efficiency and better serve its users. What steps can parties and arbitrators take to reduce the time and cost involved in arbitrations? The panel presented on the following topics: • New procedures under some rules for summary dismissal of claims - Gitanjali Bajaj, Partner, DLA Piper • Bifurcation of issues - Georgia Quick, Partner, Ashurst • Dealing with multiple disputes under one contract - Andrea Martignoni, Partner, Allens 75 The CIArb Australia News December 2017 The CIArb Australia News December 2017 76
Left to Right: Simon Davis (CIArb Australia Councillor), Caroline Kenny QC (CIArb Australia President), The Hon Justice Antony Siopis (Federal Court of Australia), Elizabeth Macknay (Herbert Smith Freehills) and Dr Pat Saraceni (Clifford Chance)
International Arbitration and Precedents: Friends or Foes?
When: Wednesday, 5 April 2017 Where: Federal Court of Australia, Perth Chair: The Hon Justice Antony Siopis, Federal Court of Australia Welcome:Caroline Kenny QC, CIArb Australia President Panel: Elizabeth Macknay; Simon Davis and Dr Pat Saraceni Photos: Deanna Whyte
Addressed by a distinguished panel and chaired by the Hon Justice Antony Siopis, Federal Court of Australia this seminar focussed on international arbitrations and precedents. The panel presented on the following topics: Overview of Principles and Issues Involved – Elizabeth Macknay, Partner, Herbert Smith Freehills Arguments For and Against Lord Thomas' Proposition - Simon Davis CIArb Australia National Councillor and Barrister, Francis Burt Chambers Comparative Analysis and Wrap-up – Dr Pat Saraceni, Director, Litigation and Dispute Resolution, Clifford Chance, Perth 77 The CIArb Australia News December 2017 The CIArb Australia News December 2017 78
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CIArb Asia Pacific Diploma In International Arbitration
he Chartered Institute of the success in Singapore in cross border disputes in the Asia Arbitrators of East Asia, 2016, this pre-eminent tertiary Pacific, the course is supported Australia and Singapore course offers a prestigious globally by international arbitral bodies are conducting the Asia recognised qualification. Aimed at T and associations. Expressions of Pacific Diploma In International meeting the increasing demands Arbitration in Hong Kong from 21 for accredited arbitrators and Interest for Australia 2018 can – 29 October 2017. Following arbitration practitioners to resolve be registered by clicking here.
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Faculty Class of 2017
Co-Course Directors Dr Gavan Griffith AO QC Gordon Smith Andrew Burnett George Lam Cao Simeng Australia Australia Australia Hong Kong China Richard Leung Malcolm Holmes QC Richard Tan Katrina Cassandra Ng SY Eugenio Lequaglie Callum Strike CIArb East Asia Australia Singapore Hong Kong Italy Australia Francis Xavier SC PBM Anthony Houghton SC Mary Thomson Ryan Chan Christina Li Jing San-Joe Tan CIArb Singapore Chairman Hong Kong Hong Kong Hong Kong China Australia Caroline Kenny QC Christopher To Jensen Chang Celeste Lo Tin Yan Dawn Tan Ly-Rz Speakers Australia Hong Kong Hong Kong Hong Kong Singapore Neil Kaplan CBE QC SBS Tan Chuan Thye SC Dr Wilson Cheung Sandra Lu Wenchao Kon Ting Fei Louise Barrington Australia & Hong Kong Singapore Hong Kong Hong Kong Hong Kong Canada David Kreider Philip Yang Shane Chidgzey David Lyons Evaristo Trevino Berlanga Chou Sean Yu Hong Kong Hong Kong Australia Australia Hong Kong Singapore James Kwan Jean-Luc Gustave Duncan McConnel Grace Tso Chui Ying Peter Caldwell Hong Kong Hong Kong Hong Kong Australia Hong Kong Amanda Lees Dr Andrew Hanak Vincent Oey Sravan Unnam John Cock Singapore Hong Kong Education Course Australia Hong Kong India Albert Monichino QC Simon Davis Australia Assistant Kristina Herenda Jonas Saunders Peter Wong Hing Hing Australia Switzerland Germany Hong Kong Paul Sandosham Chalee Nai Kin Wang Juan Samuel Seow An Athena Wong Hiu Hung David Fong Singapore Singapore Hong Kong China Singapore Hong Kong Olivia Kung Hoi Yan Sundrarajan Shanmugam Ita Yovita Theresia Taroreh Hong Kong India Indonesia Fontaine Lai Ting Wai Ong Shu Yin Ning Zoe Wing San Hong Kong Singapore Hong Kong 81 The CIArb Australia News December 2017 The CIArb Australia News December 2017 82
KRISTINA HERENDA HERENDA ATTORNEYS AT LAW, SWITZERLAND View Profile
CIArb Asia Pacific Diploma Course - A
Mary Thomson, Chairperson of the CIArb East Asia Branch presenting course certificate to Kristina Herenda during the Diploma Student's Perspective Course Dinner held at the Hong Kong Bankers Club
he CIArb Asia Pacific Germany, Hong Kong, India, groups of six students through welcome occasions to mix with investor state, These opportunities were further Diploma in International Indonesia, Singapore, Italy and tutorials. Students employed other students and exchange enhanced by the various social Commercial Arbitration Switzerland, to name a few, were the four course work books experiences and ideas. sports as well events which also brought some was held in Hong T in attendance. consisting of relevant legislation New friendships as well as interesting and fun quality time Kong from 21 – 29 October and conventions, arbitration rules outside of the curriculum. A Classes were well structured professional relationships were as international 2017 and marked the second and guidelines to discuss and welcome reception held at Empire covering a wide range of topics certainly a significant added value year in which the Australian, solve the tutorial problems. These Hotel Wan Chai after the first day such as formation and validity of to the diploma course. maritime East Asian and Singaporean workshops were particularly was followed by a dinner cruise arbitration agreements as well branches joined forces to helpful in understanding how arbitration. on the Hong Kong harbour - a as enforcement of awards. The deliver the diploma course. to approach problems and to By attending the fantastic opportunity to take in the members of faculty were excellent Following last year's course become familiar with the vast array Irrespective of the exciting sights of the city - before - all of them provided slides in Singapore, this year, the of rules and guidelines. diploma classes, the gala dinner held at the Hong breaking down the key points of organising committee selected students' previous Kong Bankers Club which was their respective topics. References In addition to the excellent Hong Kong as the venue - an students were addressed by the Wesley Wong to leading cases ensured coursework, the classes provided familiarity with excellent choice as Hong Kong SC, Solicitor General of Hong that students gained valuable ample opportunity to meet able to obtain is not only a lively and busy arbitration, the Kong, concluded the official part city but also an important insights not only regarding experienced professionals from a thorough of a memorable experience. arbitration centre. As such, the theoretical foundations but also diverse backgrounds and as classes provided venue fitted perfectly well in how issues play out in practice. such enhance the participants' foundation of all bringing together participants Afternoons were reserved for professional networks. Lunch participants with from across the globe: 37 workshop sessions in which breaks as well as morning relevant aspects students from Australia, China, faculty members guided small and afternoon teas were of international solid knowledge commercial of the principles arbitration. In of international addition to the commercial arbitration to build D major topics, classes also upon in the future. discussed special subjects such as 83 The CIArb Australia News December 2017 The CIArb Australia News December 2017 84
Course and Tutorials
Mid Week Course Dinner – Hong Kong Harbour Cruise 85 The CIArb Australia News December 2017 The CIArb Australia News December 2017 86
Course Dinner and Certificate Presentation 87 The CIArb Australia News December 2017 The CIArb Australia News December 2017 88
CIArb Australia Collaborates with the Beijing International Arbitration Commission to Promote Arbitration in the Asia Pacific Region
Hong Kong Summit on Commercial Dispute Resolution in China, 14 October 2017
For the second year CIArb 100 speakers and delegates, arbitration hubs comes more has collaborated with the including senior practitioners than 10 years after third party Beijing International Arbitration from major law firms, in funding was recognised by the Commission (BIAC) to promote house counsel, government High Court of Australia and by arbitration in Australia and the representatives and heads of superior courts in England as Asia Pacific region and the ICCA regional institutions attended the legitimate on the basis that it Congress to be held in Sydney Summit. BIAC Deputy Secretary- promotes access to justice. in April 2018. CIArb Australia General, Dr Fuyong Chen However, in both England and President Caroline Kenny QC, delivered the keynote address: Australia the industry is largely led an Australian delegation Belt and Road Initiative – What it unregulated. Ms Kenny pointed Means for Dispute Resolution. to Beijing last year and gave a out in her presentation that presentation at the BIAC on the In Session One: Evolution the UK adopts a ‘soft touch’ enforcement of international and Adaption – The Future of approach to regulation of the arbitration awards in Australia, International Arbitration, Ms industry by permitting self with particular emphasis Kenny addressed the very regulation whereas the need on enforcement of awards topical issue of third party for regulation is currently under involving Chinese nationals. funding of arbitration. The review by the Law Review Following the success of the issue is ripe for discussion as Commission in the Australian 2016 roadshow, Ms Kenny was this year both Hong Kong and state of Victoria. The jurisdictions asked to participate in the Hong Singapore introduced legislation which allow third party Kong Summit on Commercial to legitimise third party funding funding will watch with interest Dispute Resolution in China for international commercial held on the eve of the 6th arbitrations and, in a first for the Hong Kong and Singapore’s Hong Kong Arbitration Week. Asia Pacific region, included a experiment in regulating the Addressing trends and issues regime to regulate the third party industry. Click here to read Ms regarding dispute resolution funding industry. The legislation Kenny’s speech in China and the region, over in the two popular and growing 89 The CIArb Australia News December 2017 The CIArb Australia News December 2017 90
DR GAVAN GRIFFITH AO QC CIARB CHARTERED ARBITRATOR View Profile
2nd Harbour Lecture Hong Kong
Mission Accomplished or Unfinished Business: The Rise and Rise of Litigation Funding. RSM v St Lucia
ome of my best friends served me well - 2013, aged 93, as the expatriate are disputes funders. Australian artist loved for his Read all statutes to the end. I am delighted to have depictions of Italian urban S been invited by two of Over 50 years this wise counsel landscapes “full of private jokes them, Susan Dunn and Ruth has won cases and stopped me and playful allusions”. One Stackpool-Moore to deliver the losing them. of his most famous works is Second Hong Kong Harbour I will be content if this precept his “Portrait of Clive James”, Lecture, following its 2016 launch is all that each of you take as as the expatriate London based by my “most distinguished” you depart towards a drink. Australian poet and slowly arbitrator friend, Neil Kaplan, dying literary critic, barely to be here present. My second take home point is identified behind the motorway’s even shorter - As I recall, an exit survey of men parapet. (There is private joke leaving professional gatherings I hot desk in chambers with here I reserve for personal of this sort confirmed that the Lord Millett, who tells me as enquiry). attention of most had wandered why Jonathan Sumption was The scene most aptly depicts to the extent of almost nil recall. unplayable as an appeals my exposure at the parapet 3 In contrast, the women remained advocate - years ago on publication RSM v focused and scored high on He would open up: “My Lords, I St Lucia, an ICSID treaty case, retention of information. Let us will first deal with the strongest where I flagged third-party funder see how the men score today. point against me. Having issues as ripe for discussion. You My first year Mercantile Law destroyed that he would submit: are sitting on an extract of the lecturer was an old silk who “Therefore I win”. relevant paragraphs. never made it to the High Court Strong and effective advocacy, Three years and some 363,000 after sailing off to London in a which on delivery bowled over hits in 0.70 seconds on, I assure slow boat sharing a POSH First the learned Law Lords and left an you that, unless one agrees Class cabin with his secretary, unplayable wicket for opposing with Oscar Wilde that “the one and leaving behind his wife, the counsel. thing worse than being talked daughter of a Supreme Court about is not being talked about”. Judge, and also his prospects Precept 2: Keep it simple: Less is My position at the parapet for judicial appointment. I have more. immediately post-RSM was an retained one sentence from this I turn to explain the image: uncomfortable and lonely place. my first law class which has Geffrey Smart died in Tuscany in It sure sorts out your friends. 91 The CIArb Australia News December 2017 The CIArb Australia News December 2017 92
Three years on from RSM this at the end of 1987, I was briefed it seems, enterprises, including presentation has two parts - by third-party funders in class legal services providers, usefully 1. To declare Mission action claims in State and enter arrangements with funders Accomplished for the third- Federal courts. The old twins to manage and accelerate cash party funding industry, in the of Champerty and Maintenance flow by factoring off assets George Bush sense of “almost” had been seen off, and a suite represented by work in progress, with some mopping up to attend of legislative and regulatory I am told sometimes to amounts to. procedural laws had formally beyond $100 m. established a flourishing 2. To hit the refresh button for environment for litigation funders, The balance is recalibrating security for costs issues, which I for some of the largest listed modestly claim to have enlivened with some coming of age in funders. One reports that from its long- standing moribund Australia. nowadays less than 20% of its neglect in the fields of arbitration Twenty years on I entirely agree funding of is committed to one- in general, and as it may affect with Sir Rupert Jackson’s laying off disputes. Other funders more third-party funders, in particular. of hands in judicial blessing on limit their book to “traditional” In order, I should deal with Issue the admission of funders into the one-off disputes arrangements, 1 first. But it is uncontroversial in establishment tent - where the funded claimant may content and likely to alienate you “Litigation funding is beneficial, or may not be as obviously falling in presentation. I will only briefly promotes justice, and should be confirm the declaration, and short in its capacity to meet supported.” defer somewhat dull remarks on adverse costs orders. this issue for you to read in the To this end, the industry is To this extent the Task Force version to be posted by Harbour. becoming populated with Report confirms that to an increasing numbers of agile I am residually anxious as I increasing extent the immediate entrepreneurs, innovative and CIArb Australia Presentation to China Law stroke funders’ quite large alarm and concern, real or spreading far beyond one- egos by declaring that, as at imagined, which so excited the off “plain vanilla” funding of October 2017, litigation funders industry after RSM fairly may Society Delegation claimants of limited means, have attained full maturity now be regarded as spent, or at without either the financial upon the industry’s admission the least worked around to an capacity or the inclination to as full members within the acceptable commercial result. When: 23 August 2017 carry the burden and risks of in- club of serious players in the Where: Melbourne University House house financing. A definition. disputes funding industry, judicial and arbitral, national and (An aside: Tony Blair denies that As there are variable and ohn Arthur, CIArb The presentation summarised international. George Bush Jnr said: “It is a differing terms and contents Australia Treasurer and Delegates included the curial process in Victoria pity the French do not have a to the traditional category of There will be no Groucho Marx Company Secretary (including VCAT) as well the ways word for entrepreneur.”) one-off funding arrangements representatives defence here: addressed a visiting in which mediation and arbitration as bespoke agreements, a J Defining third-party funding. delegation from the China Law in particular are assisted and I would not want to be a member convenient working definition is from the executives Society on 23 August, 2017 at supported by legislative and of a club that would have me as a The reach of disputes funding elusive. My preference is adapted International House, University of various law curial intervention. The discussion member. has moved through the one-off from the 60 year old somewhat funding model to which I referred of Melbourne. The subject of his included a summary of the principal The Draft ICCA/Queen Mary physiologically based test for societies around in RSM (possibly, I admit, in address was the Australian system provisions of the Victorian Civil Task Force on Third Party obscenity of Justice Stewart somewhat too flowery terms of conflict resolution processes, Procedure Act 2010 (Vic) with Funding in International Potter in the United States China, as well as which diverted and excited and in particular, ADR – mediation particular reference to ADR; and the Arbitration issued 1 Supreme Court, in Jacobellis v. funders to miss the intended and arbitration - and litigation. members of the an outlining of the various tribunals September 2017 over 177 Ohio (1964) - helpful content). The delegation which numbered and courts in Victorian and their pages confirms my declaration CLEC including its I know it when I see it. in excess of 25 was on a study hierarchy and rights of appeal. that the Funding Industry has I have the impression that tour to Australia organised by the come of age whilst imposing the business models of some To pick up the useful verbless Director-General, At the conclusion of the address China Legal Exchange Centre corresponding obligations arising larger funders have spread sentence of Lord Denning: So Yin Baohu and there was a lively and lengthy Q form its increasingly formalized to financing rolling disputes here (CLEC). CLEC is a subsidiary of & A focusing on practical aspects participations. portfolios of large corporate the China Law Society based of Australian court processes and Read More program officer Ma parties as businesses directed to in Beijing, China. Among other ADR with participants showing a Oscar Wilde: The one thing derive for the assignors the dual things it organises and sends legal Xiaotian. great interest and appreciation. The worse than being talked about is advantages of pricing out risk professionals to foreign countries delegation organisers thanked Mr not being talked about. and taking uncertain liabilities off for exchange visits, training and Arthur and CIArb Australia for the After I left law Office in Australia balance sheet. More commonly study. presentation. 93 The CIArb Australia News December 2017 The CIArb Australia News December 2017 94
Left to Right: Katlyn Kraus (Dispute Resolution Case Manager, ADC), John Wakefield (CIArb Australia Trustee and Chairman of the ADC), Motto Kurihashi (Ministry of Justice Tokyo, Japan), Kazuyki Iga (Ministry of Justice Tokyo, Japan)
China Law Society Delegation Ministry of Justice Japan Visit to Australia
Yin Baohu Chen Qizhong Wu Aimin n 31 August 2017, Mr Wakefield Mr Wakefield talked about the China Legal Exchange Centre, Law Society of Shanghai, General of Affairs Office of Trustee of CIArb Australia strong history of mediation and Director-General Executive Council Member Arbitration Committee of Harbin and Chairman of the promoted Australia Law Society of Harbin Director and Australian Disputes arbitration in Australia. Mr Kurihashi Li E Fu Tiezhu O Vice-President as a seat for and Mr Kazuyki shed light on Law Society of Shandong Law Society of Jilin Province, Vice- Centre, John Wakefield, President differences in the practice of Province, Vice-President Wang Jinfang welcomed two delegates of international Li Yufeng Personnel Department of China mediation in Japan. The meeting Ma Xiaotian Japan’s Ministry of Justice: Motoo arbitration, Executive Council Member of Law Society, Director China Legal Exchange Center, fostered closer ties with ADR Law Society of Guizhou Province Kurihashi and Kazuyki Iga to highlighting Program Officer Jiang Minchen practitioners in Australia and Japan Executive Council Member Law Society of Fujian Province discuss the important work of both such assets as Yang Shaohua and developed opportunities for Li Hongwu Council Member Justice Bureau of Ningxia Hui organizations and encourage future political stability, future arbitrator training endeavors Law Society of Gansu Province, He Xibin Autonomous Region, Deputy Executive Council Member Public Security Bureau of collaboration. a strong judiciary, in Japan. Director-General Wen Tianping Shandong Province Director Lu Jianfeng and superb legal Law Society of Chongqing, Lei Wensheng Law Society of Zhejiang Province, Executive Council Member Law Society of Qinghai Province professionals. Vice-President Wang Long Council Member Feng Xianjun Law Society of Hubei Province, Rong Qunwang Law Society of Hebei Province Secretary-General Secretariat of Law Society of Vice-President and Secretary Yao Huaixiang Hainan Province, Deputy Director General Law Society of Jinan, President Wei Yushan Zhou Yong Guan Taibing General Affairs Office of China Law Law Society of Anhui Province Justice Bureau of Wuhan Law Society, Principal Staff Member Executive Council Member Society of Wuhan, Director-General Li Zhongxu Jiang Xiaoping Xi Dongsheng Legal Risk Management Law Society of Henan Province Law Society of Harbin Vice- Department of Chinese Law Executive Council Member President Counseling Center Program Officer 95 The CIArb Australia News December 2017 The CIArb Australia News December 2017 96
Left to Right: The Hon Justice Clyde Croft (Victorian Supreme Court), Bronwyn Lincoln (Corrs Chambers Westgarth) and Tim Castle (NSW Bar and UNCCA)
United Nations Day Lecture: 50 Years of UNCITRAL - What's Next?
Chair: Bronwyn Lincoln, Partner, Corrs Chambers Westgarth Speaker: Tim D. Castle, Barrister and Chair UNCCA Commentary: Justice Clyde Croft, Supreme Court of Victoria Where: Corrs Chamber Westgarth, Melbourne
n Tuesday, 24 October, Corrs Chambers Westgarth hosted the Melbourne event of a national program celebrating the 50th Anniversary of the United Nations Commission on International Trade Law (UNCITRAL). UNCTRAL’s achievements have accompanied the boom in global trade and investment since that time, Oincluding in areas such as international arbitration, cross-border insolvency, sale of goods, electronic commerce and secured transactions. UNCITRAL has now taken on a major new mandate to consider the future of Investor State Dispute Settlement (ISDS), amongst a range of other work. The UN Day Lecture was an initiative of the UNCITRAL National Coordination Committee for Australia (UNCCA). 97 The CIArb Australia News December 2017 The CIArb Australia News December 2017 98
ISABELA DEVEZA LAWYER, PINSENT MASONS SYDNEY View Profile
9th CIArb Australia/Young Lawyers of NSW International Commercial Arbitration Moot 2017
n 2009, the International Law roses. The parties expectations unrivalled. University students, Committee (ILC) and the surrounding the wording of the law graduates and newly Clayton Utz 2017 International Arbitration Chartered Institute of Arbitrators contract was the subject of qualified solicitors fully embraced IAustralia Limited joined forces the dispute, since the words the chance to experience the Lecture: The Hon Sir Bernard Eder to host the inaugural CIArb “organic” and “fair trade” were real world of arbitration and Australia/ Young Lawyers of New not contractually defined, albeit network with some of the South Wales (NSW) International being contractually agreed upon. pre-eminent professionals in When: 11 October 2017 Arbitration Moot. This successful This year’s problem was drafted the field. This would not have Where: Federal Court of Australia, Sydney partnership has now reached its by the Moot Managers, and the been made possible without ninth year, and the prospects for questions that the competitors the practitioners, barristers 2017: International Arbitration - disputes have been referred solutions? the tenth edition are very exciting. had to address were limited to: and arbitrators who kindly How worldly is it? – The Hon Sir to the Courts or arbitration in The 2017 lecture considered The diversity of participants volunteered their time to arbitrate Bernard Eder a) Whether the Tribunal has London. However, this tradition demonstrates the competition’s high level panels throughout the these “worldly” developments jurisdiction over the dispute; The last 20 years has seen huge is now being challenged by and specifically the prospects truly cross-border nature, attracting weekend. growth in cross-border trade, other dispute resolution centres participants from Sydney, b) Whether Ms Kavanagh should for international arbitration in the The Grand Final, hosted by King infrastructure projects and large- in Asia - noticeably Singapore Melbourne, Brisbane, Adelaide, and be recused from the Tribunal; region. & Wood Mallesons, included scale financial transactions and Hong Kong. Will this for the first time in the competition’s c) Whether the Respondent has an impressive panel composed towards the East. Parties to such challenge be maintained? Are The transcript of the 2017 IA history, Singapore. breached the Contract; by Daisy Mallett, Partner transactions inevitably have to Lecture speech can be found these new centres meeting the This year’s moot was organised d) Whether this breach was at King & Wood Mallesons, consider the mechanism for here. fundamental, such that the requirements and expectations by the ILC Moot Managers, Professor Chester Brown, resolving any disputes which may contract was validly avoided; and of the international community? The handout accompanying the Ashna Taneja, Harry Stratton from the University of Sydney arise. What are the problems? And, 2017 IA Lecture can be found and myself, with the support of e) Whether the Respondent is and the Hon Justice Margaret In the past, many of such more importantly, what are the here. the ILC Chair Brecht Valcke and liable for damages for Channel Beazley AO, President of the ILC Secretary Katlyn Kraus. Zen’s loss of reputation and the NSW Court of Appeal. The skills cancellation of Everlasting. This year’s problem revolved showcased by the finalists were around a fictional dispute The high standards of this truly exceptional, which was a arising out of a CISG contract competition never cease to testament to the quality of the between a Colombian roses amaze the volunteer arbitrators moot. We were very fortunate and organizers, and this year was producer, Rojas Roses and an this year to have one of our no exception to the rule. Australian TV Network, Channel sponsors, DTI, provide real time transcription of the final. Zen. According to the contract, The quality of the Moot, held Channel Zen agreed to buy, on the weekend of the 21st Joshua Hiew and Victor Leong and Rojas Roses agreed to of October following the IBA (Singapore) were crowned the sell a certain number of blue Conference in Sydney, was Winners of the Moot, with Eoin 99 The CIArb Australia News December 2017 The CIArb Australia News December 2017 100
Coffey and Gary King (Brisbane) We would like to placing second in the final. The Winners of the Moot were also thank all of the jointly awarded the Best Written Submissions prize. Honorable sponsors and Mentions for Best Written volunteers who Submissions were awarded to Eoin Coffey and Gary made (and make King (Brisbane) and Azaara Perakath and Mitchell Brunker every year) this (Adelaide). The Best Orator prize event possible. The was awarded to Joshua Hiew (Singapore). The Best Orator Chartered Institute 1 2 award is a guaranteed place in the Introduction to International of Arbitrators Arbitration Course, presented Australia, NSW by CIArb Australia. As the recipient of the award during Young Lawyers’ last year’s Moot, I was delighted to be able to go to Melbourne International for the course this year. It was Law Committee, a fantastic experience enriched by the opportunity to hear great King & Wood names in Arbitration insightfully addressing current topics and Mallesons, the issues in the field of Arbitration. Australian Disputes Honorable Mentions for Best 3 4 Advocate were awarded to Wee- Centre, ACICA, An Tan (Sydney), Eoin Coffey (Brisbane), Gary King (Brisbane) DTI and Wolters- and Victor Leong (Singapore). Last, but not least, the Spirit of Kluwers. Without the Moot Award, awarded to the your continuous team or individual that overcame a difficulty and displayed the support, this event Spirit of the Moot was awarded to Chujing (Charlene) Cai would not raise its (Sydney) and Stephen Chow bar year after year. (Sydney). This award is a lunch with Prof Doug Jones AO. May we welcome the 10th Edition! 5 6
1. Azaara Perakath, Isabela Deveza and Mitchell Brunker 2. DTI Transcription Services 3. Joshua Hiew and Victor Leong, the Winners of the Moot 4. Joshua Hiew and Victor Leong, Winners of the Moot and Best Written Submissions with the Moot Managers 5. Wee-Ant Tan, awarded Honourable Mention for Best Oral Advocate 6. Finalists Eoin Coffey and Gary King 7. Brecht Valcke, Chair of the International Law Committee and Ashna Taneja.
www.kwm.com 7 101 The CIArb Australia News December 2017 The CIArb Australia News December 2017 102
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8. Azaara Perakath and Mitchell Brunker, awarded Honourable Mention for Best Written Submissions with the Moot Managers 9. Chujing (Charlene) Cai, awarded the Spirit of the Moot Award with the Moot Managers 10. The Arbitral Tribunal composed by Daisy Mallett, Professor Chester Brown, and the Hon Justice Margaret Beazley AO with Brecht Valcke and the Moot Managers, Ashna Taneja, Harry Stratton and Isabela Deveza 11. Charlene Cai and the Hon Justice Margaret Beazley AO 12. Professor Chester Brown, Daisy Mallett and the Hon Justice Margaret Beazley AO with Joshua Hiew and Victor Leong, Winners of the Moot 13. Gary King, awarded Honourable Mention for Best Speaker and Honourable Mention for Best Written Submissions and Chujing (Charlene) Cai, awarded the Spirit of the Moot Award 14 14. The Tribunal: Daisy Mallett, the Hon Justice Margaret Beazley AO, Professor Chester Brown 103 The CIArb Australia News December 2017 The CIArb Australia News December 2017 104
Secondly, the Applicants argued Construing the scope of an GINA RINEHART WINS BID that the present dispute was a arbitration clause TO PUSH BATTLE WITH ‘family’ or ‘trust’ dispute whereas The Court gave detailed KIDS BEHIND CLOSED Mrs Rinehart submitted that the consideration to the approach DOORS RUSSELL THIRGOOD dispute is properly characterised taken in the English courts on one PARTNER as ‘commercial’. The first point hand, and the approach taken MCCULLOUGH ROBERTSON the Court made was that the in other Model Law jurisdictions View Profile enquiry was not binary and such as Singapore, Hong Kong, questions of characterisation Canada, New Zealand and Ireland ERIKA WILLIAMS rarely involve the existence of on the other. mutually exclusive categories. SENIOR ASSOCIATE The English courts adopt a MCCULLOUGH ROBERTSON Although the Court ‘merits’ or ‘balance of probability’ View Profile acknowledged that: approach whereby the court conducts a full merits hearing Katie Walsh ‘in one sense the dispute is regarding the existence The Australian Financial Review capable of being described as and scope of the arbitration 27 October 2017 one between a mother and her agreement. The approach taken The epic dispute between Gina Rinehart children, about the destruction in other Model Law jurisdictions and her two eldest children will be Casenote: The Rinehart Saga Continues... in of a family relationship under the is a ‘prima facie’ approach where, pushed behind closed doors and out of the public eye after the billionaire miner crushing weight of wealth, about if there appears to be a valid won an appeal to force the warring family private the alleged maladministration arbitration agreement which members to arbitrate outside of court. of family trusts, and about the prima facie covers the matters in In a 138-page judgment handed down asserted loss of a large part of dispute, the court’s enquiry stops Friday morning, in which it described the Case: Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170 an inheritance that the childrens’ there and the matter is referred dispute as being in one sense about the " destruction of a family relationship under [sic] grandfather (Mr Lang to arbitration. Then it is for the arbitrator to determine jurisdiction the crushing weight of wealth", the Full Hancock) had intended them to Federal Court held the claims of Bianca he latest decision in the agreements are void as Mrs For a domestic commercial have.’ and scope of the arbitration Rinehart and her brother John Hancock Rinehart family saga Rinehart induced them to sign arbitration act to apply, the agreement. that their mother moved valuable mining The court did not consider further assets out of the family trust fell within valid was handed down on the deeds by misleading and dispute must be ‘domestic’ and The court commended the prima whether a ‘trust’ dispute was arbitration clauses. 27 October 2017 and deceptive and unconscionable ‘commercial’. There was no facie approach noting that this T also a commercial dispute for the "The primary judge concluded that the so- canvassed a number of crucial legal conduct, undue influence, breach argument that the present dispute approach recognised the arbitral purpose of arbitration. However, it called validity claims propounded by Ms principles relating to arbitration.1 of trust and fraud on a power. was domestic. However, two tribunal’s competence to rule on Rinehart were not the subject of arbitration has been held in other decisions its own jurisdiction as provided agreements... We disagree," said Federal Although lengthy, the judgment This article focusses on the arguments were presented by the that a dispute relating to a trust is for in the Act. The appropriate Court chief justice Allsop and justices gives close consideration to the Court’s discussion of the Applicants to suggest that the 2 arbitrable. role for the court is to satisfy Anthony Besanko and David O'Callaghan history of arbitration in Australia applicability of the Commercial dispute was not commercial. in a joint judgment. itself that there is an apparently Arbitration Act, construing It agreed with Mrs Rinehart’s and abroad and provides clear Firstly, the Applicants submitted valid arbitration agreement and the scope of an arbitration submissions that the disputes enunciation of certain arbitration then to take a broad view when that it was necessary to were ‘quintessentially related legal principles. agreement and whether third characterising the disputes to demonstrate that the dispute commercial’. The Court noted party companies involved in the determine whether they fall within The underlying dispute involves arose from a ‘commercial that the Applicants failed ‘to legal battle could also have their the scope of the arbitration allegations by the children of disputes referred to arbitration. relationship’. The Court was deal with the inconvenient fact able to dismiss this submission agreement, without delving into mining magnate, Gina Rinehart, that their pleading ... is founded the merits of the case. that Mrs Rinehart breached When does the Commercial swiftly, stating that as the on express allegations that the Commercial Arbitration Act refers When ascertaining what matters her duties as a fiduciary and Arbitration Act apply? pleaded misrepresentations and to ‘commercial arbitration’, the conduct were and was made “in fall within the scope of the as a trustee of trusts in which If should first be said that each arbitration agreement, it is the word ‘commercial’ applies to trade or commerce”’. In stating her four children had beneficial state and territory in Australia has width or narrowness of the terms the word arbitration and not to that characterising this dispute as interests by manipulating the now enacted uniform domestic of the arbitration agreement the relationship of the parties only a family dispute would ignore financial position of Hancock commercial arbitration acts so the which need to be considered. in the dispute. The Court also the ‘overwhelming commercial mining assets in her own principles espoused by the court In this particular dispute, the in relation to the Commercial identified a number of examples nature’ of the dispute, the Court favour and other misconduct. relevant phrase of the arbitration Arbitration Act 2010 (NSW) (the of commercial disputes that could concluded that the dispute clauses were ‘any dispute under "We would stay the proceedings in court, Daughter Bianca Rinehart and Act) (which the parties agreed the properly be referred to arbitration was necessarily commercial. this deed’ and ‘all disputes permitting the arbitrator to deal with son John Hancock (together, where no commercial relationship Accordingly, the arbitration all issues including the attack on the Court should apply in the present hereunder’. The question was arbitration agreements." the Applicants) also claim that case) are equally applicable to the existed, including rival businesses would be a domestic commercial whether the argument over the Bianca Rinehart at the Pink Hope Gala in various deeds they signed which domestic commercial arbitration or neighbouring property owners arbitration for the purpose of the validity of the deeds themselves Sydney back in 2015. Tony Aoun included arbitration acts throughout Australia. in dispute. Commercial Arbitration Act. was encompassed by the 105 The CIArb Australia News December 2017 The CIArb Australia News December 2017 106
The decision overturns the May 2016 wording in these arbitration Third party companies’ Lessons will hold parties to Evidence before the court during its week- ruling of Federal Court Justice clauses. participation in the arbitration long hearing in February included a 2005 Jacqueline Gleeson to allow the dispute conversation between Bianca Rinehart and to continue before a court, in the public The Court noted that the Having determined that the their agreements her brother, in which Mr Hancock told her eye. construction of the arbitration disputes between the parties to "not to assume his attack" against their It is clear from this to arbitration mother "was over". Despite disagreeing with Justice Gleeson's agreement is based on an the deeds could be referred to "He said that Hope Downs 'belongs to finding that Ms Rinehart's claims fell assumption that rational arbitration, the Court then had to decision, and a and conversely, outside the arbitration agreements and the children' and that because he was businessmen are likely to have consider whether the third party rubber-stamping the court battle, the Full number of other a non-party to aware [Mrs Rinehart] was under immense Federal Court agreed with most of her intended any dispute that entities could also have their pressure to get the Hope Downs deal signed in time for government deadline of preliminary findings on the validity of the may arise to be determined disputes (vis-a-vis the parties recent decisions, an arbitration agreements and the commercial nature of 30 June 2005, that is why he decided to by the same tribunal. The to the arbitration agreements) the dispute. that Australian 'hit her Court’s dismay at the semantic referred to arbitration. agreement cannot The bench noted that just because it up' for a 'few mill' then, but that his "may be seen as a family dispute" did not interpretation of the various The Court had to consider courts will take (without all parties’ 'case' against [her] was by no means over," Bianca Rinehart recorded of the mean it could not be "characterised as phraseology used in arbitration whether the third party commercial". a broad, liberal consent) have its conversation. clauses was evident when it companies were party to the stated: "He stated that he would fight for "It is, of course, also true to say that in arbitration clause in accordance approach to the one sense the dispute is capable of being dispute referred to ownership of our company's other assets described as one between a mother and ... the assumption has a real role with the extended definition of (excluding Hope Downs) – ie Roy Hill, and construction of that he would float these once he had her children, about the destruction of a to play – not the subject of a a party in the Act. In the Act, a arbitration by the control of them." family relationship under the crushing nod, before fine textual analysis party includes a person ‘claiming an arbitration court. weight of wealth, about the alleged takes place using legal and through or under a party to the The court disagreed with the primary judge that a separate attack brought by the maladministration of family trusts, and linguistic ingenuity differentiating arbitration agreement’. agreement. Parties’ about the asserted loss of a large part children that an arbitration clause was "null prepositional phrases using of an inheritance that the childrens' The Court held that merely being and void" should be heard by a court. spatial and temporal metaphors attempts at arguing grandfather (Mr Lang Hancock) had in a close relationship with or A short hearing between the parties on the intended them to have," the court said. derived from, or imposed on, issue was "unlikely" based on the "intensity having closely related rights did that a dispute is "But, in our opinion, the choice between the words. The assumption of application to every matter in dispute" not equate to a party claiming a dispute being 'commercial' on the one of an appropriate common not commercial and it would be better to let the arbitrator hand, or 'family' on the other, is not, as the sense contextual framework ‘through or under’ another decide, the court said. applicants' submissions imply, a binary is not foreign to, but part of, person. If, however, the third or relying on "The separate attack is ill-formulated... As one. party companies had a cause such it has an inherent lack of apparent an orthodox approach to semantics to strength given that the "Such questions of characterisation rarely of action or ground of defence construction. two features are well-understood involve the existence of mutually exclusive that is derived from a party exclude a dispute categories." In rejecting the decision characteristics of commercial arbitration," to the arbitration agreement, it said. Mrs Rinehart was ranked third in the in Rinehart v Welker,3 the they may have been captured from the operation 2017 Rich List compiled by The Australian Court found little difficulty in A separate Supreme Court dispute is by the extended definition of ongoing. Financial Review, with an estimated wealth determining that a liberal reading of the Act will not of more than $10 billion. party in the Act. In this case, of the clause ‘any dispute The Federal Court battle dates back to the third party companies were be entertained by under this deed’ resulted in the October 2014, when Ms Rinehart and her not found to have a derivative conclusion that the substantive older brother Mr Hancock filed a claim defence and there was no legal Australian courts. against Gina and 14 others related to the claims and validity claims were relationship between the party to Hancock Prospecting group. within the scope of the arbitration Australian courts the arbitration agreement and the They claimed on the death of their agreement. grandfather Lang Hancock in 1992, Gina third party companies relevant to breached her duties as fiduciary of the It then remained to be determined the defence. family trust by removing the valuable whether the disputes concerning mining assets and placing them into the rights of third parties which As the third party companies Hancock Prospecting — at the time, $77.8 were companies with assets the were not claiming through or million in net assets. She is then alleged subject of the deeds, including under a party to the arbitration to have given herself a 76.55 per cent agreement, the Court held shareholding of Hancock, instead of the 49 Hope Downs Iron Ore Pty Ltd that the claims against those per cent allegedly agreed with her father. and Roy Hill Iron Ore Pty Ltd, Mrs Rinehart is fiercely defending the could be referred to arbitration. companies would not be referred claims. The Court held that, to the extent to arbitration and, in the interests that the dispute concerning those of justice, stayed the claims third party interests were disputes against the third party companies
between the parties to the deeds, to allow the remaining claims that 1. Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170. then those aspects of the dispute were referred to arbitration to go 2. Fitzpatrick v Emerald Grain Pty Ltd [2017] WASC 206. could be referred to arbitration. through that process first. 3. [2012] NSWCA 95. 107 The CIArb Australia News December 2017 The CIArb Australia News December 2017 108
Left to Right: John Arthur (CIArb Australia Treasurer and Company Secretary), Dr Vicky Priskich (CIArb Australia Victoria State Convenor), Simon Davis (CIArb Australia Councillor), The Hon Justice Clyde Croft (Victorian Supreme Court) and Caroline Kenny QC (CIArb Australia President)
Introduction to International Arbitration 2017 Class of 2017
When: 17 June 2017 Andrea Anastasi Dominique Grigg Ian McMaster Where: Allens Linklaters, Melbourne Victorian Bar Queensland Bar Hatchone Pty Ltd VIC QLD VIC Francois Beghin Joel Harris Ernaldo (Aldo) Paciocco Faculty Albert Monichino QC Donna Ross Australian Government Victorian Bar ASIC CIArb Australia Immediate Past Donna Ross Dispute Resolution Department of Finance VIC VIC Simon Davis President Prof Jeffrey Waincymer ACT Fred Hawke Alexandra Pieniazek CIArb Australia Councillor and CIArb Fellow Adnane Benhammouche John Arthur Clayton Utz King & Wood Mallesons Course Director State Government of South VIC CIArb Australia Claire Porter Australia WA The Honorable Justice Clyde Company Secretary and Treasurer Course Assistant SA Kieran Hickie Fleur Shand Victorian Bar Croft Supreme Court of Victoria Deakin University Hilary Birks Victorian Bar Dr Vicky Priskich VIC Allens Linklaters VIC Caroline Kenny QC CIArb Australia Victoria State Perl Huang VIC Rauf Soulio CIArb Australia President Convenor Elite Lawyers & Associates Jess Jingyan Chen Court of Arbitration for Sport NSW HKA Consult SA VIC Ayesha Jayawardena Caroline Swartz-Zern Shane Chidgzey Solicitor VIC Allens Linklaters Click below iPLAN Consulting Pty Ltd VIC QLD Elizabeth Kenny Stephanie Tenazas Isabela Deveza Royal Victorian Eye and Ear ASIC Norton Rose Fulbright Hospital VIC NSW VIC Majd Elmashharawi Vellukhanna Mariappen Luke Virgona Duffy Kennedy Construction QK TELCO PTY LTD Victorian Bar NSW VIC VIC Ruimin Gao Hadi Mazloum Zhuoru (Grace) Zhu King & Wood Mallesons Victorian Bar Turner & Townsend NSW VIC VIC 109 The CIArb Australia News December 2017 The CIArb Australia News December 2017 110
Important factors and options. does not involve the exercise of the sovereign power of the There are, in my view, five principal In TCL the High Court held that State to determine or decide factors which demonstrate arbitral power is not judicial power controversies. Australia's potential to become a for the purposes of Chapter III of regional frontrunner in international the Commonwealth Constitution. [108] To conclude that a arbitration. These are— Judicial power operates regardless particular arbitral award is final • a comprehensive legislative of the parties’ consent whereas and conclusive does no more framework that is now well arbitral power is dependent on it. than reflect the consequences established; As such, in enforcing an arbitral of the parties having agreed to award, a court is merely enforcing • a supportive judiciary (at both submit a dispute of the relevant an agreement between the parties. THE HON JUSTICE CLYDE CROFT a State and Federal level) and kind to arbitration. As has In this respect, I note the comments SUPREME COURT OF VICTORIA well-equipped courts; already been noted, one of those of French CJ and Gageler J that— consequences is that the parties’ View Profile • world-class alternative dispute rights and liabilities under an resolution facilities; Enforcement of an arbitral award agreement which gives rise to • a high quality profession; and is enforcement of the binding result of the agreement of the an arbitration can be, and are, • broad stakeholder involvement parties to submit their dispute discharged and replaced by the and support. Introduction to International Arbitration to arbitration, not enforcement new obligations that are created 10 I will briefly turn to these factors in of any disputed right submitted by an arbitral award. more detail. to arbitration. The making of an The High Court’s unanimous Introduction you with at least an inkling of the well placed to provide a forum appropriate order for enforcement Legislative Framework decision was welcomed by bright future and critical importance of this kind to regional disputing of an arbitral award does not It is a great pleasure to be with you the Australian arbitration of international arbitration, First, the comprehensive legislative signify the Federal Court’s this morning to open the Chartered parties, but clearly neutrality is community; the importance of particularly in our region of the framework which governs endorsement of the legal content Institute of Arbitrators’ Course— not enough. Indeed, among other which was highlighted by the arbitration in Australia is now of the award any more than it an Introduction to International world—and for Australia as a major things, international commercial appearances—as amicus curiae— trading nation. parties want an arbitration-friendly well established and operating signifies its endorsement of the of the Attorneys-General of four Arbitration. 9 jurisdiction which understands largely as intended. The Uniform factual content of the award. Australian states and important The Chartered Institute is the Background Commercial Arbitration Acts, which commercial imperatives such as I also note the comments of arbitration stakeholders— oldest professional association govern domestic commercial The shift of the centre of the the importance of the expeditious Hayne, Crennan, Kiefel and Bell including the Chartered Institute of dedicated to the development arbitrations, have now been global economy towards the Asia- and expert resolution of disputes. JJ rejecting the proposition that Arbitrators and Australian Centre and advancement of the law implemented in all states and Pacific region has created exciting Moreover, to attract more arbitration involves a delegation of for International Commercial and practice of arbitration in the territories6 and the International opportunities for commercial international arbitration to its judicial power— Arbitration (“ACICA”)—arguing for world. Unsurprisingly, given the Arbitration Act 1974 (Cth) has arbitration involving Australia. The shores, Australia must both be, and the constitutional validity of the pre-eminence of London in the been upheld as constitutionally [107] ... the conclusion that an spread of free trade agreements in project itself to be, an accessible, IAA. The strong, unanimous and common law and arbitration world, valid by the High Court in TCL Air arbitrator is the final judge of the region in particular, such as the reliable, and cost- effective provider pro-arbitration findings of the High the Chartered Institute was founded Conditioner (Zhongshan) Co Ltd v questions of law arising in the of arbitration and other dispute Court confirm that Australia sits in London in 1915, incorporated in more recently concluded China- The Judges of the Federal Court arbitration does not demonstrate 1 resolution services.5 well within international standards 1924 and granted a Royal Charter Australia Free Trade Agreement, of Australia.7 This legislation— that there has been some and norms for the enforcement of in 1979. The Australian Branch was is expected to further increase The good news is that all of these domestically and internationally— delegation of judicial power to arbitral awards. 11 formed in 1995 and incorporated in regional trade, and disputes pull-factors are present in Australia. applies the UNCITRAL Model Law,8 arbitrators. The determination 2006. between international parties will There is no doubt that we have with some further enhancements of a dispute by an arbitrator Read more. not be far behind. Arbitration is The Chartered Institute courses the substance here in Australia to increasingly becoming the dispute be a frontrunner in international and membership qualifications resolution method of choice in such arbitration in the Asia-Pacific 1. The ChAFTA which came into force on 20 December 2015 are both recognised and highly disputes.2 However, in the highly regarded worldwide—in both region—but—we are not out there 2. Gerry Lagerberg and Robert Kus, Global Survey Sheds Light on Perceptions of International Arbitration, Australian Centre for International Commercial competitive global and regional Arbitration. the common law and civil law telling people about it. We are not market, international parties can 3. Chief Justice Marilyn Warren, “Australia—a Vital Commercial Hub in the Asia Pacific Region, Victoria—a Commercial Hub” (Remarks made at the Federal Court jurisdictions. Hopefully, you will out there enough telling people and Supreme Court Commercial Seminar, Melbourne, 25 February 2015). afford to “shop around” in order be inspired by this Course to about the arbitration-friendly 4. Nigel Blackaby et al, Redfern and Hunter on International Arbitration (Oxford University Press, 5th ed, 2009) 630 [11.29]. to find a jurisdiction that best suits pursue your Chartered Institute environment in Australia and 5. Chief Justice Warren, above n 2. their commercial needs.3 qualifications and, on completing educating fellow practitioners and 6. Commercial Arbitration Act 2010 (NSW); Commercial Arbitration Act 2011 (SA); Commercial Arbitration (National Uniform Legislation Act 2011 (NT); Commercial Redfern and Hunter point out that in-house counsel about how they Arbitration Act 2011 (Tas); Commercial Arbitration Act 2011 (Vic); Commercial Arbitration Act 2012 (WA); Commercial Arbitration Act 2013 (Qld); Commercial the various courses, graduate as Arbitration Act 2017 (ACT). a Fellow and with a Diploma in the venue or place of arbitration can draft dispute resolution clauses 7. TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2014) 251 CLR 533 (“TCL”). International Arbitration. Having is often chosen because it is which make Australia the seat of 8. UNCITRAL Model Law on International Commercial Arbitration (as amended in 2006). sought to encourage you in your a place with which the parties any arbitration, and Melbourne, 9. TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2014) 251 CLR 533 at 555–6. present and future ventures in have no connection; that is, it is Sydney or another capital city the 10. TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2014) 251 CLR 533 at 575 [107]–[8] (footnotes omitted). arbitration, I would like to provide a “neutral forum”.4 Australia is venue. 11. See also other Australian decisions such as in Flint Ink NZ Limited v Huhtamaki Australia Pty Ltd and Lion-Dairy & Drinks Pty Ltd [2014] VSCA 166. 111 The CIArb Australia News December 2017 The CIArb Australia News December 2017 112 113 The CIArb Australia News December 2017 The CIArb Australia News December 2017 114
Accelerated Route Towards Fellowship 2017
When: 14 and 15 May 2017 Where: Baker McKenzie, Sydney
Faculty Caroline Kenny QC Albert Monichino QC Jo Delaney CIArb Australia President, CIArb Australia Immediate Past CIArb Australia Councillor and Course Director President, Tutor Partner, Baker McKenzie, Tutor
Candidates Nicholas Hopkins QC Michael Colbran QC Asoka Munidasa Victorian Bar, Victoria Victorian Bar, Victoria Independent Maritime Services Pty Ltd, Western Australia Dr Shane Monks Ian Davidson SC Level Twenty Seven Chambers, Eight Selborne, New South Wales Queensland Tom Clarke James Doyle List G Barristers, Victoria Doyles Construction Lawyers, New South Wales 115 The CIArb Australia News December 2017 The CIArb Australia News December 2017 116
MEL SCHWING INTERNATIONAL DISPUTE RESOLUTION ATTORNEY View Profile
Current Issues in International Arbitration
Left to Right: Andrew Stephenson (Corrs Chambers Westgarth), Bronwyn Lincoln (Corrs Chambers Westgarth), Dr Michael Pryles AO PBM (Independent Arbitrator) and John Arthur (CIArb Australia Treasurer and Company Secretary) nternational arbitration is ever ICSID, the Singapore International appealed and therefore corrected. evolving. That was the message Arbitration Centre, and the They can only be set aside. Mr a packed house at the Melbourne Stockholm Chamber of Commerce. Stephenson commented that he judgments are not universally Dr Pryles noted Dr Pryles and Mr Stephenson Ioffice of Corrs Chambers He thought that it might be better had found arbitration to be more enforced like arbitration awards are. debated who should ultimately Westgarth received on 26 February for arbitrators to bifurcate claims efficient than litigation if certain Accordingly, Dr Pryles believed that that arbitrators appoint the experts in an 2017 at the CIArb Australia event and address those for which there procedural mechanisms were the SICC may eventually achieve a arbitration. Dr Pryles expressed on Current Issues in International was questionable merit earlier in a utilised, e.g., memorials instead of sustainable case load, but it would were increasingly a preference for the approach in Arbitration. CIArb Australia proceeding, but he also conceded pleadings, limited discovery and never be a serious competitor some European civil law arbitrations Victorian State Convenor and that such an approach would not expert evidence, and “stop clocks” to arbitration in the international scheduling where the Tribunal appointed the Councillor John Arthur moderated be possible in the case of ICSID at hearings. Dr Pryles added dispute resolution market. In experts, as common law party- a panel consisting of Corrs conference calls arbitrations as they only allow that arbitrators are conscious of fact, Dr Pryles suggested that a appointed experts inevitably partners, Andrew Stephenson one award. Furthermore, in his receiving their fees in a timely corporate lawyer could commit supported the view of the party that and , and later in arbitrations Bronwyn Lincoln view, there was some merit in manner, so they will not allow professional negligence if he or she renowned international arbitrator, appointed them. Mr Stephenson allowing a party to save the time counsel to have unlimited time to did not recommend arbitration to to streamline the Dr Michael Pryles AO PBM. questioned whether this approach and expense of defending a claim bring their cases. their clients, with Mr Stephenson was best, noting that experts rely During the hour-long discussion, that was manifestly without legal adding that this issue could issues for expert Ms Lincoln wondered whether on a factual matrix for their opinions the panellists discussed such merit. The problem, as Dr Pryles come to the fore in the context of international commercial courts, determination and and that they would not have a topics as the right for arbitrators to saw it, are the high standards set contractual guarantees. like the Singapore International sufficient understanding of the key summarily dismiss claims, universal by the new rules and interpreting Commercial Court (SICC), As a final topic, the panellists that expert witness facts if they were appointed by a standards for case management just what those standards mean. were threats to arbitration. Dr looked at modern trends in Tribunal. Ultimately, as with the in international arbitration, the rise Mr Stephenson also pointed out conferencing was Pryles recognised that there arbitration for handling expert other issues, the panellists agreed of international commercial courts, that the dismissals raise issues as are complaints about the time evidence. Mr Stephenson said that that there was no one “perfect” and new techniques for handling to the res judicata effect of, and the becoming the and expense of arbitration (and experts should be named early and way to proceed and that arbitration expert evidence. In each case, the governing law for, such dismissals. consequently complaints about that they should meet and agree on rule and not the would continue to evolve to fit the panellists considered not only the Ms Lincoln next asked what new arbitrators), but he did not think how evidence will be presented. needs of parties. merits of the innovation, but also trends arbitrators were embracing international commercial courts exception. the problems each causes. to effectively manage arbitrations. were a credible threat. He noted Mr Stephenson began the Dr Pryles noted that this was a that the caseload of the SICC discussion by asking Dr Pryles “delicate” question: Arbitrators have has consisted of cases referred whether arbitrators should have a duty to proceed expeditiously, from the Singapore High Court the power to summarily dismiss but they also have an obligation and not cases filed with the SICC claims that have no legal merit. to allow parties a reasonable directly. Moreover, the SICC— Dr Pryles noted that this power is opportunity to present their cases. and all international commercial relatively new and still somewhat Moreover, arbitrators have a courts—suffer in comparison uncommon; it has only been Damocletian sword over their head, with international arbitration in granted in the new arbitral rules of because their awards cannot be the area of enforcement, as court 117 The CIArb Australia News December 2017 The CIArb Australia News December 2017 118
CIArb Australia Membership Update We are pleased to welcome the following new Chartered Arbitrators, Fellows, Members, Associates and Students to CIArb Australia.
Fellows
Philip Bambagiotti NSW The Hon Susan Crennan Adam Rollnik VIC
Shane Bosma QLD AC QC VIC David Smallbone NSW Ann Hoffman NSW I-Ching Tseng QLD Monique Carroll VIC Nicholas Longley VIC The Hon Justice Peter Jingyan Chen NSW Sandeep Machivale WA Vickery NSW Leon Chung NSW Patrick O'Sullivan Qc SA Rudy Cohrssen VIC Donald Robertson NSW
Members
Oxana Burmistr WA Andrew Hales NSW Blessing Mhangami NSW Fiona Cameron VIC Margo Harris QLD Ciaran O'Sullivan WA Saumik Chatterjee NSW Matthew Jones QLD Rodney Perkins NT Tom Clarke VIC Sam Lawson VIC Bavani Rengasamy WA Robert Donnelly NSW Sean Marriott WA Kenneth Stanton TAS Gregory Downing WA Brendan McDermott NSW Robert Tang NSW Thomas Gallagher NSW Khurram Mehboob NSW Kin Man Clifford To NSW
Associates
Sam Adair NSW Kieran Hickie VIC Adam Perigo NSW Manish Arora NSW Manish Arora NSW Alexandra Pieniazek WA Hilary Birks VIC Hilary Birks WA Frank Primerano NSW Fiona Cameron VIC Fiona Cameron NSW Joel Ruffles VIC Reza Sabetnia NSW Logan Campbell QLD Logan Campbell VIC The Hon Justice John Shane Chidgzey QLD Shane Chidgzey SA Sackar NSW Ruimin Gao NSW Ruimin Gao QLD Cameron Scholes NSW Dominique Grigg QLD Dominique Grigg WA Brendan Taylor WA Andrew Hanak VIC Andrew Hanak QLD Matthew Weatherhead NSW Fred Hawke VIC Fred Hawke VIC Stephen Whitten QLD Graham Headley WA Graham Headley QLD Zhuoru Zhu VIC 119 The CIArb Australia News December 2017 The CIArb Australia News December 2017 120
Students CIArb Australia Membership Update Robert Heath QC Ms Tracy Albin WA Mr Miguel Ferreira VIC Ms Shalaka Parekh VIC In recognition of achievements beyond Queen’s Counsel Mr Pratik Ambani VIC Ms Lucy Forbes NSW Mr John Petras VIC the membership space, we are pleased to announce the following appointments View Profile Mr Paarth Arora NSW Ms Lucienne Galea VIC Ms Randa Rafiq VIC and promotions of CIArb Australia Mr Arthur Athan VIC Mr Joshua Graham VIC Ms Sama Rahman VIC Members. Congratulations! Mr Jonathan Beh VIC Mr Anthony Hadjiantoniou VIC Ms Michelle Rodrigues VIC Mr James Bell VIC Ms Caitlin Hardy VIC Ms Alexa Sakkal VIC Max Bonnell Caroline Kenny QC Mr Joel Breckler VIC Mr Charles Haszler VIC Mr Nicholas Scott VIC Partner Victorian Bar Council White & Case Member Mr Clark Briggs VIC Mr Andrew Haynes NSW Mr Ashwin Shah VIC View Profile View Profile Mr Robert Brown VIC Mr Brendan Hord NSW Ms Amy Silver VIC Mr Carl Buhariwala VIC Mr Thomas Hvala VIC Ms Ayesha Singh VIC Mr Robert Bujnowski VIC Ms Emily Jiang VIC Mr Thomas Smalley WA Dr Andrew Christie Dr Sam Luttrell Mr Matthew Bullas VIC Mr Werrdan Khoury NSW Mr Kenneth Speakman QLD Panellist to Office of the Partner Ms Kathleen Cashmere VIC Mr Nandini Kumar VIC Mr Andrew Spierings VIC Franchising Mediation Adviser Clifford Chance Mr Gi Yeon Chung NSW Mr Ivan Ladores VIC Mr Drossos Stamboulakis VIC and IP Australia View Profile Mr Pui-Mun Chung VIC Mr David Lau VIC Ms Anne Steed VIC View Profile Ms Adriana Clarke ACT Mr Tat-Ho Lee VIC Mr Gordon Tan VIC Mr Renier Coetzee UK Mr Steven Li VIC Mr Aditya Tumakaka VIC Amanda Davidson OAM Khory McCormick Ms Joanna Cookson VIC Mr Benjamin Lim NSW Ms Ana Ubilava NSW Principal, Davidson Legal Consultant and Deputy Consulting Advisory Chair of Singapore Mr Thomas Correia UK Mr David Lyons NSW Ms Isabella Vecchio QLD View Profile International Dispute Mr Thomas Creedon VIC Mr Xiaofang MA NSW Mr Biyu Wang NSW Resolution Academy View Profile Mr Jordan den Dulk NSW Ms Joslyn Ma VIC Ms Lauren Williams VIC VIC Ms Kathleen Doherty VIC Mr Gary Martin NSW Ms Maria Wong Jo Delaney Daisy Mallett Ms Grace Dong VIC Ms Victoria Massaro VIC Mr Yan Xuan QLD Partner Partner Ms Bronwyne Edwards VIC Mr Bradley McNamara NSW Mr Joseph Xuereb VIC Baker McKenzie King & Wood Mallesons View Profile View Profile
The Australian Financial Also this week the Chartered Institute of Arbitrators (Australia) Review elected Melbourne barrister Caroline Kenny, QC, to the role of president, Professor Sarah Derrington Prof Colin Roberts chairman and sole arbitrator in international arbitrations. Legal Affairs President of the Australian Law Chairman Katie Walsh "I am honoured to be elected and see this as an opportunity to further Reform Commission (ALRC) and Salternas promote and advocate Australia's position in the growing cross-border a Judge of the Federal Court of View Profile 2 June 2017 dispute resolution market," Kenny said. Australia Positive noises were made: Law Council of Australia president Fiona View Profile McLeod, SC, hailed Kenny as an "inspirational choice" and prominent all- rounder Allan Myers, QC, championed her "clear intellect and Paul Hayes QC John Rundell capacity for hard work". Queen’s Counsel CIArb Global Audit Kenny will need to muster that strength: Singapore puts on a mighty View Profile Committee Member show in the international arbitration space. Australia has a lot going for it View Profile though, and not just the intellectual might of the bar; there is something in this remarkable sea-girt land mass. 121 The CIArb Australia News December 2017 The CIArb Australia News December 2017 122
JOHN WAKEFIELD SOLICITOR, ARBITRATOR View Profile
Member Profile: John Wakefield
ohn is the Managing Partner a practitioner in alternative dispute to deliver the real benefits of Which living person do you What is your What is your favourite film? of Holman Webb Lawyers resolution. arbitration particularly in terms of most admire? A difficult question. I foundRod and practices generally Read more cost saving. favourite piece of in commercial dispute I am inspired by people who Steiger’s performance in “In the J What/Who inspired your Heat of the Night” extraordinary. resolution. Refer to an historical conflict engage positively with adversity literature? interest in arbitration? you wish you could have “Monsieur Hire” also provokes He is the Australasian member whether political, intellectual, thought and I generally like anything of the Board of Trustees of the As a young lawyer I was involved participated in and why? emotional or physical. Meeting a by Martin Scorsese and the Coen Chartered Institute of Arbitrators. in a stay application in respect of I suspect that most historical Time permitting I an arbitration commenced under significant private challenge can be Brothers. I am interested in foreign He is a Fellow and past President contests were too bloody and the laws of Florence, Italy. That as admirable as any in public. language films. of the Australian Branch of CIArb unpredictable to make actual try to read widely. I piqued my interest. I also became and a Fellow of ACICA. participation attractive. It would interested in ways of effectively am interested in the What credo/maxim/motto have been interesting (in hindsight) What is your favourite journey? John is also Chair of the Australian achieving the benefits of alternative inspires you? to be a fly on the wall when classics, particularly Disputes Centre Sydney. ADC dispute resolution including, in Anywhere by sea from the Piraeus, Themistocles spoke to the Know yourself. provides a focus for alternative the case of arbitration, by use Greece. Homer’s The Iliad and dispute resolution in Australia of harmonised procedure from Athenians before the Battle of with hearing and function rooms, Salamis or in Mark Antony’s tent different jurisdictions. I have been What is your favourite piece of The Odyssey. The the secretariat for the Australian inspired by a number of people before the Battle of Actium. music? Centre for International Commercial practising in the international human issues raised What is your idea of perfect Arbitration and the registered office arbitration community particularly It depends on mood and of the Australian branch of the happiness? continue to resonate. those committed to education and circumstance. Mahler’s Rueckert- CIArb . It also provides nationally the development of a real culture of The company of family and friends. I also like Belgian accredited mediation training. arbitration in Australia. Lieder; Monty Alexander (for jazz) and even New Zealand’s Fat From 2009 – 2014 John What is your greatest fear? writer, Georges was a judicial member of What traits make a good Freddy’s Drop. Beethoven's late arbitrator? Failing to meet a challenge. Simenon and Richard the Administrative Decisions quartets are hard to better. Tribunal of NSW. Since 2014 Sound legal knowledge and an What is your greatest Flanagan. Seneca he has been a Senior Member understanding of the alternatives extravagance? (part time) of the NSW Civil and for arbitration procedure with the usually has something Travel – but it always broadens the Administrative Tribunal sitting ability to conduct a fair hearing mind. on the Administrative and Equal and deliver an enforceable award. relevant and Opportunity and Occupational Increasingly in arbitration it is also What do you consider to be comforting to say. Divisions and on the Appeal Panel. necessary to exercise the subtle most over-rated virtue? In 2017 John was included in Best influence required to bring the Lawyers International – Australia as parties to consensus on procedure Self-deprecation.
council and Secretariat
Patron The Hon Murray Gleeson AC Why train Chief Justice of the High Court of Australia (1998-2008), Sydney Trustee John Wakefield with us Chaiman of Partners, Holman Webb, Sydney President Caroline Kenny QC Barrister, Owen Dixon Chambers, Melbourne As the professional home of dispute resolvers with over 16,000 Vice President James Healy members worldwide, there is no better place to develop your ADR Barrister, Francis Burt Chambers, Perth skills. CIArb provides a world-class training programme Dr Stephen Lee in arbitration, adjudication, and mediation. Barrister, 35 West Chambers, Brisbane Treasurer and John Arthur Company Secretary Barrister, Owen Dixon Chambers, Melbourne Immediate Past Albert Monichino QC President Barrister, Owen Dixon Chambers, Melbourne Whether you’re new to ADR and keen to find out more or an experienced National Councillors Beth Cubitt practitioner looking for career-enhancing training, CIArb has a course and Partner, Clyde & Co, Perth qualification to fit your needs. Simon Davis Our Pathways programme – ranging from Introductory Certificates through Barrister, Francis Burt Chambers, Perth to advanced level Diplomas - will give you the specialist knowledge and skills you need to get ahead in ADR, whilst also qualifying you for membership of Jo Delaney CIArb as Associate (ACIArb), Member (MCIArb) or Fellow (FCIArb). These Special Counsel, Baker & McKenzie, Sydney internationally recognised qualifications provide our members with a powerful Julia Dreosti mark of quality assurance. Principal, Lipman Karas, Adelaide
Other training features include: Sandrah Foda Barrister, Third Floor St James’ Hall Chambers, Sydney • Expert tutors who are leading practitioners and academics • C ours es tha t are s uitabl e for al l le vels of expe rien ce and profe ssional background Kristian Maley Global Disputes Associate, Jones Day, Perth • Tiered prog ramm e to s upport career prog ression • Trainin g to s uit your desire d career specialism Dr Shane Monks • High standards of teaching and assessment Barrister, Level Twenty Seven Chambers, Brisbane • Fas t-track c our ses for highe r le vels of experience Prof Colin Roberts • C ourses deli vered worldwide Faculty of Science & Engineering – Curtin University & Colin Roberts Group, Perth • Suppo rtive lea rning comm unity Gordon Smith Training ranges from one-day introductory sessions to seven month courses. Barrister, Solicitor and International Arbitrator, Perth Courses are delivered worldwide through international branches. For global training opportunities, find your local branch at www.ciarb.org/branches Damian Sturzaker Partner, Marque Lawyers, Sydney CEO Gianna Totaro CIArb Australia Level 16, 1 Castlereagh Street There are over 40 CIArb branches Sydney, NSW, 2000 active in six continents T: +61 438 337 328 E: [email protected] To find out more about training opportunities in ADR, visit:
W: www.ciarb.org T: +44 (0)20 7421 7439 E: [email protected]
CIA 472 Final 10-11-13.indd 4 10/01/2013 15:03 125 The CIArb Australia News December 2017
The CIArb Australia News
The CIArb Australia News is the flagship publication of the Chartered Institute of Arbitrators (Australia) Limited. All contributions and advertising are welcome and should be sent to the Editor: Gianna Totaro [email protected] Casenotes and opinion pieces are reviewed by The CIArb Australia News Peer Review Panel. Views expressed by contributors are not necessarily endorsed by the Chartered Institute of Arbitrators (Australia) Limited. We gratefully acknowledge the kind permission given by journalists, photographers, illustrators and editors whose valued work is kindly reprinted in this edition.