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International Arbitration in Australia: the need to centralise judicial power

Summary of paper delivered by Albert Monichino, SC for ICC Australia’s ‘International Arbitration in Australia and Beyond’ Conference, 10 August 2011, Melbourne.

Melbourne barrister, Albert Monichino SC has called for the centralisation of judicial power for cases under Australia’s domestic and international arbitration regimes.  In a paper presented at ICC Australia’s “International Arbitration in Australia and Beyond” conference this month, Monichino SC suggested that an improved regulatory system would support Australia’s aspirations of becoming a regional hub for international commercial arbitration. 

Presently in Australia, international arbitration is governed by the International Arbitration Act 1974 (Cth) (“IAA”) whereas domestic arbitration is governed by the various State and Territory Commercial Arbitration Acts.  Recent reforms have seen the UNCITRAL Model Law on International Commercial Arbitration adopted in the IAA and the Commercial Arbitration Act 2010 (NSW), Commercial Arbitration Act 2011 (Vic), Commercial Arbitration Act 2011 (SA) as well as specialist arbitration lists established in the Supreme Courts of NSW and Victoria and in the Federal Court of Australia.  Nevertheless, the Federal Court and eight State and Territory Supreme Courts continue to exercise concurrent jurisdiction under the IAA, and this makes the development of a consistent body of jurisprudence more difficult.  Monichino SC’s analysis showed that the treatment of arbitration-related cases by Australian courts remains disjointed:

January 2010-July 2011​ ​
all arbitration related International arbitration-related​

First instance​

Appellate​ First-instance​ ​Appelate
Judgments​ 34​ 9​ 8​ 3​
Judges​ 18​ 22​ 6​ 8​

Between January 2010 and July 2011, 34 first-instance arbitration-related decisions were published by 18 separate trial judges, of which 8 decisions published by 6 separate judges specifically related to international arbitration.  During the same period, 9 arbitration-related appellate decisions were published involving 22 appellate judges, of which 6 decisions involving 8 judges (over 3 separate intermediate courts of appeal) were international arbitration-related. 
In order to encourage more uniform interpretation of the Model Law, Monichino SC proposes:
• truly specialist arbitration lists in the Supreme Courts of each of the States and Territories; and
• amendment of the IAA to make the Federal Court the single intermediate appellate court. 
The second of these proposals is certainly the most controversial.  However, such amendment would arguably create the same system of appeals which existed previously for taxation and intellectual property matters.  According to Monichino SC, Australia should not hesitate to act if it hopes to become a first-rate jurisdiction in the eyes of international parties selecting a seat for arbitration. 
There is much food for thought in Monichino SC’s paper and many arbitration practitioners would be sympathetic to his views.