International arbitration in Australia: the need to centralise judicial power

1. International arbitration in Australia: the need to centralise judicial power ICC Australia�s �International Arbitration in Australia and Beyond� Conference 10 August 2011 � Melbourne Albert Monichino S.C. Barrister www.barristers.com.au

2. Present Arrangements The Federal Court and the State and Territory Supreme Courts have concurrent jurisdiction in all matters arising under the IAA.��On the other hand, the Supreme Court of the States and Territories have jurisdiction in matters arising under the relevant uniform domestic arbitration Act. The UNCITRAL Model Law underpins the IAA and the revised CAA (so far only enacted in NSW). Legislative provisions have been put in place in the revised CAA which promote the interpretation of the Model Law in the context of the revised CAA in a manner consistent with its interpretation in the context of the IAA. 2

3. Exclusive Jurisdiction Proposal The November 2008 Discussion Paper in respect of the review of the IAA raised the question whether exclusive jurisdiction should be conferred on the Federal Court in all matters arising under the IAA. Primary argument in favour was that it was more likely to lead to consistent jurisprudence in respect of the IAA. Opponents to the proposal pointed out the spectre of jurisdictional skirmishes involving stay applications under section 7 of the IAA (and possible anti-suit injunctions). Argued that uniformity could be achieved (or at least promoted) by non-legislative means � in particular, by establishment of panels of specialist arbitration judges. 3

4. The Importance of Uniformity The success of the new arbitration regime in Australia depends upon the uniform interpretation of the Model Law by the various courts with jurisdiction in arbitration matters. Australia has had an unhappy record of unfortunate judicial decisions in the arbitration sphere. �The central concepts that affect the success of arbitration procedures and the degree to which courts will assist or impede arbitration are open to a significant degree of interpretation. Depending upon the court�s intellectual predisposition or predilection, widely different approaches are possible to the same problem at hand.� (emphasis added) (Justice James Allsop) There is presently a conflict between intermediate appellate courts in Australia in respect of the interpretation of the requirement in section 29 of the old uniform Acts to state reasons for an award. It would be extremely unfortunate if similar inconsistencies developed between intermediate appellate courts in respect of the interpretation of the Model Law, in particular in the context of the IAA. 4

5. Specialist Arbitration Lists It is opportune to consider the status of specialist arbitration lists 12 months on from the amendment of the IAA. Victoria: On 1 January 2010 the Supreme Court of Victoria established an Arbitration List of its Commercial Court (aka List G) presided over by a nominated judge with (international and domestic) arbitration expertise. New South Wales: The Supreme Court of New South Wales established a Commercial Arbitration List which commenced operation on 1 February 2010. No particular judges have been assigned to administer proceedings in the Commercial Arbitration List. 5

6. Specialist Arbitration Lists(cont.) Federal Court: On 8 December 2009 the Federal Court published Practice Note ARB 1 � Proceedings under the International Arbitration Act 1974. Each registry has an Arbitration Co-ordinating Judge who has general responsibility for the management of matters under the [IAA]. Proceedings under the IAA are to be listed before the Arbitration Co-ordinating Judge who will not necessarily be the same judge who will hear and determine the matter.  Other States and Territories: Since 1 January 2010 no other State or Territory of Australia has published an arbitration Practice Note, let alone established a specialist arbitration list presided over by a single or a select number of judges. 6

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9. Modified Appeal Proposal I raise for consideration the amendment of the IAA to provide that all appeals from State and Territory Supreme Court judges be heard by the Full Court of the Federal Court. A system of appeals from State Supreme Courts to the Federal Court in federal matters was in place in taxation matters between 1977 and 1991. The Federal Court continues to hear appeals from State and Territory Supreme Court single instance decisions in intellectual property matters. 9

10. Modified Appeal Proposal (cont.) An equal, if not stronger, argument could be made for a similar appeal system in international commercial arbitration matters. If appeals were to lie to a single intermediate appellate court (instead of nine), conflicts in intermediate appellate court decisions in international commercial arbitration matters would be avoided. The argument for change is diminished if appeals to the Federal Court were to be heard by any number of Federal Court judges. The spectre of jurisdictional skirmishes does not arise. While the State and Territory Supreme Courts will have appellate jurisdiction under the revised CAA, the Federal Court would assume leadership in relation to the development of the jurisprudence in respect of the Model Law. 10

11. Conclusion Should we make these changes now or should we wait and see whether the present system (in particular, the appeal system) produces the desired results? John Maynard Keynes: the future can be divided into the short-run and the long-run. In the long-run, we are all dead. 11