Part A Introduction

(Drft 8 as amended, updated having regard to suggestions by TS,

OK, RM comments 2/2, EW 8/2, and Ctee Meeting #8.)

A 1. The Purpose of the Toolkit

1.1. The purpose of this toolkit is to provide arbitrators with practical information and useful tools, which they might find helpful to conduct a successful arbitration. While it is primarily intended for small to medium arbitrations, much of it might be helpful for larger and more complex disputes, including on-line arbitrations and international arbitrations.

1.2. Although most domestic arbitrations are conducted by an Arbitral Tribunal composed of a single member, we have adopted the expression “Arbitral Tribunal” or “Tribunal” to refer to a sole arbitrator, as well as to a tribunal of multiple members.

1.3. All of the statutes in force in Australia and New Zealand are built on the UNCITRAL Model Law on International Arbitration 1985 (as amended in 2006) (the Model Law), a copy of which may be found at https://uncitral.un.org/en/texts/ arbitration/modellaw/commercial_arbitration

A 2. A Successful Arbitration

2.1. Arbitration is a dispute resolution process chosen by the disputing parties to provide a final and binding resolution of their dispute according to law. As an alternative to litigation, it is a process that has been tailored to meet their particular requirements. It is a successful arbitration if it provides this resolution by the application of a number of core principles, namely fairness (impartiality and even-handedness), efficiency (expedition and cost-effectiveness) and flexibility. These features are conveniently set out as the paramount objective of the uniform Commercial Arbitration Acts of the Australian States and Territories[1] (CAA), which is concerned with domestic arbitrations. It is in these terms:

to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense.[2]

2.2. The International Arbitration Act 1974 (Cth) (IAA), which is concerned with Australian international arbitrations, and the Arbitration Act 1996 (NZ) (NZAA), which is concerned with international and domestic arbitrations in that country, do not contain a paramount objective such as this, but it can hardly be doubted that such a statement would be accepted by their practitioners.

Key Point

Although each of the IAA, the CAA and the NZAA is based on the Model Law, there are differences of structure and detail[3] between them, especially between the Australian and the NZ statutes.[4] Do not assume that the uniform CAAs are in fact uniform.[5] It is prudent to have available, for each arbitration, a fresh copy of the current legislation governing that arbitration.

2.3. The structure of these statutes is not identical.

2.4. The IAA brings into Australian law three different United Nations conventions:

2.5. This toolkit is concerned only with the second of these, the Model Law, which is set out as Schedule 2 in the IAA and which is modified in some respects by the IAA itself.[6]

2.6. Although the Model Law was designed for international commercial arbitrations, it has been adopted in the CAA as the basis for domestic commercial arbitrations in the Australian States and Territories. In a further modified form the Model Law has been enacted in each of these jurisdictions.[7]

2.7. In New Zealand the approach of the NZAA is to set out the Model Law in Schedule 1 as “Rules applying to arbitration generally”, and to include modifications in the statute itself. In Schedule 2 additional optional rules are provided. These additional rules apply to international arbitrations only if the parties agree; they apply to domestic arbitrations unless the parties agree that they should not apply.[8]

2.8. We return to the elements of a successful arbitration:

2.9. A fair resolution is achieved where the Arbitral Tribunal ensures, as far as possible, that the parties are treated equally and that, in the pre-hearing processes and the hearing each party is given the opportunity to know the case it has to meet and to present its own case.[9]

2.10. For the parties, a final resolution is achieved where all matters referred to the arbitration are dealt with by an enforceable[10] award or awards[11] which are not set aside,[12] successfully appealed[13] or otherwise disturbed by a judicial decision.

2.11. A commercial dispute is not defined in the Model Law, but the note to art. 1 stresses that it is to be given a wide interpretation. And see Part B para 3.6 below.

2.12. As for the requirement that the Arbitral Tribunal be impartial, see Parts A2, B2 and L below.

2.13. There might be added to these the further element that a successful arbitration is one where the parties (especially the losing party) walk away from the arbitration, satisfied with the process and the fairness of the outcome.

2.14. The requirement that the process be conducted without unnecessary delay or expense is an important one that permeates many areas of this Toolkit.

2.15. And finally, let us not forget the arbitrator – the member of the Arbitral Tribunal. An important ingredient that attends a successful arbitration is the degree of satisfaction that each member feels when the dust has settled and they look back at the outcome of their efforts, comfortable that they have done their best and that the job was well done.

A 3. What this toolkit is not.

3.1. This toolkit is not a textbook on arbitration; we assume that the reader is familiar with or has access to the basic principles of arbitration and the statute applicable to the arbitration. It is intended as a guide to assist the Arbitral Tribunal to perform its task; not to provide a direction as to how this must be done. Any reference in this toolkit to a statute or to a decided case is not to be seen as legal advice or an authoritative statement of the law; it is only a tool that the Tribunal might care to explore and, if then satisfied that it is correct and appropriate, to adopt. For legal advice, generally, see the current edition of any of the reputable texts on arbitration, such as

• Mustill & Boyd, Commercial Arbitration, (LexisNexis, 3^rd ed, 2021)
• Hunter & Redfern, Law and Practice of International Commercial Arbitration (Oxford University Press, 6^th ed, 2015).
• Cato, Arbitration Practice and Procedure: Interlocutory and Hearing Problems, (LLP, 3^rd ed, 2002).
• Jones, Commercial Arbitration in Australia, (Lawbook Co, 2^nd ed, 2013).
• Hockley, Croft et al, Australian Commercial Arbitration, (LexisNexis, 2015).
• Croft, A Guide to the UNCITRAL Arbitration Rules, (Cambridge UP, 2013).
• Rana, Sanson, International Commercial Arbitration (Thomson Reuters, 2011).
• Nottage, Garnett, International Arbitration in Australia (The Federation Press, 2010).
• Holmes, Brown, The International Arbitration Act 1974: A Commentary (Lexis Nexis, 3^rd ed, 2018).

3.2. Where this toolkit includes a suggested form or other document, these are not provided as precedents; they are specimen documents that members of the drafting committee have found useful. They are provided simply as a guide to the Tribunal which it might have regard to in preparing its own document tailored to meet the circumstances of its own arbitration.

3.3. A strength of the arbitral process lies in its flexibility; many of its procedures may be moulded to suit each case, within a very generous framework identified by the paramount objective set out above. This presents a challenge for the Tribunal – whether and, if so, how and to what extent to put aside familiar litigation processes that may not advance the paramount objective. These are decisions that the Tribunal must make, hopefully with the co-operation of the parties – but cautiously and with sensitivity to the requirements and needs of the parties.

Key Point

In arbitrations, the dispute and the process belong to the parties. If the parties agree a procedure, the Tribunal must would hesitate[14] before declining to give effect to it. That is not to say that the Tribunal is their servant or that its members should not have regard to their own professional and ethical obligations. The wise Tribunal guides them. The tools in this toolkit are offered as suggestions that the parties might be persuaded to adopt. Or, absent any agreement between the parties, the Tribunal may decide to impose.

A 4. Too much Law?

4.1. The toolkit contains a lot of law. This is inevitable: arbitration is a process directed to the making of an award that determines legal and factual issues and which is binding on the parties. It has legal consequences. It is a dispute resolution process that is an alternative to that of litigation, which is itself a legal process.

4.2. As will be seen, modern arbitration and the legislation under which it is conducted seeks to avoid unnecessary legalities. Arbitrators of commercial disputes are now encouraged to approach disputes before them as commercial or technical problems and to seek commercial and technical solutions to those problems. Many arbitrators have been in the past, and will increasingly be, persons with a commercial or technical, rather than a legal background. The tools in this Toolkit, it is hoped, will serve to help them in their work, and give them comfort and confidence to bring their commercial and technical skills to bear in doing so.

4.3. The Structure of this Toolkit.

4.4. The Toolkit is presented in a number of Parts, as appears in the Table of Contents. Each Part deals with a stage of a conventional arbitration. Typically, in each Part there is a brief discussion of the practical aspects of the Tribunal’s role in that stage, and this may be followed by a checklist of issues for the Tribunal to watch out for, and, perhaps, suggested specimen documents that might be helpful as a guide.

4.5. It is distributed to members of the Resolution Institute in an electronic format; this has the advantage that the toolkit and its contents can easily be updated from time to time.

A 5. A Resolution Institute Collaborative Venture

5.1. The professional life of the arbitrator can be a lonely one. The Resolution Institute, as the largest dispute resolution institution in Australia and New Zealand, and having the largest panel of professional arbitrators, at every level of experience and area of technical expertise, sees as an important function that of fostering a sense of community and co-operation in its members. Unique amongst Australian Arbitration institutions, its graded arbitrators are required to complete annual CPD requirements and take part in regular Master Class.

5.2. This Toolkit has been prepared with this function in mind by the Arbitration Sub-committee of the Resolution Institute with assistance from its most experienced arbitrators. It will provide a forum for members to share their experience with other arbitrators. It also provides an opportunity for all members of the Institute, whether experienced or less so, to pass on to this community a contribution towards its content with a view to improving the skills of practitioners and for the benefit of parties who seek their assistance in resolving their disputes.

5.3. To this end, all members of the Resolution Institute are urged to share techniques or tools that they have found useful, and traps that they have come upon and, hopefully, avoided. Any comments, suggestions, contributions or improvements to the Toolkit or its contents will benefit us all. Please share them with the Resolution Institute at infoaus@resolution.institute marked Attention: Chair of the Determinative Committee so that they might be included in the next update.

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