Welcome to our first International Arbitration Update for 2011.
International Arbitration remains the fastest-growing form of dispute resolution internationally, and also one of the fastest-developing areas of law. Last year's legislative reforms in Australia have prompted a number of recent court decisions concerning arbitrations, the trend of which has been to uphold the principles that courts should give effect to arbitral awards and arbitration agreements, and should intervene in arbitrations only to a limited extent. In this update, we discuss the Gordian Runoff case (which concerns the arbitrator's duties to give reasons for an award); the Larkden case (the first Australian decision upholding an agreement to arbitrate disputes over intellectual property rights) and two interesting recent cases on the enforcement of foreign awards (Altain Khuder and Uganda Telecom). Mallesons had a key role in most of these cases.
Of course, our interest is never confined to Australian cases, as we act in arbitrations seated in many locations and governed by many different laws. In this Update we discuss the controversial recent English decision, Jivraj v Hishwani, which may have serious implications for arbitrations seated in that country because the court ruled invalid an arbitration clause that required the arbitrators to be members of a specific religious community. Potentially this decision could inhibit the freedom of the parties to select arbitrators by reference to particular characteristics (such as nationality).
Investment arbitration has attracted some attention recently in Australia because of the Federal Government's announcement that it will no longer include arbitration clauses in its bilateral and multilateral investment treaties. In this update, we discuss the use of investment treaty provisions as a means of enforcing international awards that have been rejected by courts in the country of the unsuccessful party.
I hope you find this Update interesting and informative and, as always, we would welcome any feedback from you.