The Arbitration Procedure - Chapter 4 - Arbitration Law of Australia: Practice and Procedure

Alex Baykitch is a Partner at King & Wood Mallesons in Sydney, Australia where his practices focuses on litigation & dispute resolution and international arbitration. Alex has over 20 years’ experience in the area of cross border litigation and international arbitration. Described by Chambers Global as "fast rising and energetic [lawyer]. . .who has developed into one of Australia's strongest arbitration counsel", Alex has particular experience of dispute in major construction, engineering and infrastructure.

Alex is consistently listed as a leading individual in legal directories, for his expertise in cross border litigation and international arbitration, and sits as sole and party appointed arbitrator as well as chairman of arbitral tribunals conducted under the ICC, LCIA, KLRCA, and UNCITRAL Rules. Alex is a Member of the Australian Government's Delegation to UNCITRAL's Working Group on Arbitration. He is also an Australian Delegate to the ICC Arbitration Commission and served on the Commission's Task Force on the New York Convention. Until recently, Alex was the Vice-President of the Australian Centre for International Commercial Arbitration (ACICA) and is a fellow of ACICA.

He is also a Member of the Arbitration panels of the ICC International Court of Arbitration, Singapore International Arbitration Centre, China Maritime Arbitration Commission, the Korean Commercial Arbitration Board and ACICA.

He has presented at numerous conferences and written on various topics in relation to international arbitration and is a co-author for the Australian chapter of World Arbitration Reporter.

Professor Doug Jones AO is a Sydney-based Partner in the Australian law firm of Clayton Utz where he heads the International Arbitration and Major Projects Groups of the firm. Doug is a door tenant at Atkin Chambers, London.

His experience includes acting as Arbitrator and Counsel in major international arbitrations, and advising on major projects in the areas of buildings, road and rail infrastructure, power, potable and waste water, mining infrastructure and processing, and on and offshore oil and gas. Doug sits as an international commercial and investor / state arbitrator.

Details of his arbitration experience can be found at www.dougjones.info.
Doug is currently President of the Australian Centre for International Commercial Arbitration, past President of the Chartered Institute of Arbitrators, London (2011), and a Member of the LCIA Court. He is an Australian Government nominee on the ICSID panel of arbitrators and a foundation fellow and graded arbitrator of the Institute of Arbitrators & Mediators Australia, Fellow, Arbitrators and Mediators Institute of New Zealand, President, Dispute Review Board Foundation Australia, member of the ICC Australia Arbitration Committee, and a member of a number of panels of International Arbitral bodies. In January 1999 Doug was made a Member of the Order of Australia in recognition of his services to construction law and dispute resolution, and in June 2012 Doug Jones was made an Officer of the Order of Australia, for distinguished service to the law as a leader in the areas of arbitration and alternative dispute resolution, to policy reform, and to national and international professional organisations.

He is Co-Editor in Chief of the International Construction Law Review and Editorial Board Member of International Trade and Business Law Review, India Business Law Journal and Global Arbitration Review. He is International correspondent for Australia of the Romanian Review of Arbitration. He lectures, and authors articles for publication, within Australia and internationally.

His expertise in International Arbitration and Construction has regularly been recognised by his peers.
Doug Jones has been described as "a phenomenon" and "the statesman of the industry" by Chambers Asia Pacific (2012).

The International Who's Who of Commercial Arbitration 2011 names Doug Jones as one of the Leaders Worldwide and is one of only three highly recommended individuals in Australia. It notes that "Doug Jones at Clayton Utz is held in the highest esteem".

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Originally from: Arbitration Law of Australia: Practice and Procedure

THE ARBITRATION PROCEDURE

4.1 GENERAL PRINCIPLES

4.1.1 Extent of Party Autonomy to Determine the Arbitral Procedure

Parties who choose Australia as the seat of the arbitration are no longer able to adopt a different procedural law.

The 2010 amendments stipulate that the Model Law “covers the field” and the text of section 21 as amended removes the parties’ freedom to choose the procedural law to be applied at the seat:

“21 Model Law covers the field

If the Model Law applies to an arbitration, the law of a State or Territory to arbitration does not apply to that arbitration.”

In this Part of the IAA, ‘State’ is defined to mean Australia (including the external Territories) and any foreign country with the effect that if the Model Law applies any other law chosen by the parties is excluded. The Explanatory Memorandum explains the purpose of the amendment:

“The Bill repeals section 21, removing the ability of parties to an arbitration agreement to nominate an alternative arbitral law. The Bill also amends the Act to expressly provide that the Model Law covers the field with respect to international arbitration.”

The IAA provides that the Model Law applies to all ‘international commercial arbitrations’ with a juridical seat in Australia. Arbitration will be ‘international’ where:

Table of Contents:

CHAPTER 4 - THE ARBITRATION PROCEDURE

4.1 General Principles
4.1.1 Extent of Party Autonomy to Determine the Arbitral Procedure
4.1.2 Basic Procedural Principles or Mandatory Rules to Be Applied By the Arbitral Tribunal
4.1.3 Oral Hearing or Proceeding on Basis of Written Documents
4.1.4 Power of the Tribunal (in Particular the Chairman) to Issue Procedural Orders
4.1.5 Distinction of Matters of Substance and Matters of Procedure
4.1.6 Persons Able to Represent a Party in Arbitration Proceedings

4.2 Place of Arbitration
4.2.1 Determination of the Place of Arbitration in Absence of an Agreement by the Parties
4.2.2 Importance and Legal Effect of the Seat of the Arbitration

4.3 Deadlines and Defaults
4.3.1 Contents and Forms of Submissions
4.3.2 Legal Deadlines and Effect of Non-compliance

4.4 Facts and Evidence: General
4.4.1 Burden of Proof (Inquisitorial / Adversarial Procedure
4.4.2 Standard of Proof
4.4.3 Power of the Tribunal to Determine the Admissibility and Weight of the Evidence

4.5 Witnesses
4.5.1 The Evidentiary Hearing
4.5.2 Limits on Witnesses and Preparation of Witnesses
4.5.3 The Assessment of Evidence
4.5.4 Witness Statements

4.6 Experts

4.7 Documents
4.7.1 Form and Kind of Documents to Be Presented to the Arbitral Tribunal
4.7.2 Requirement to Produce Certain Documents and Consequences of a Failure to Do So
4.7.3 Protection of the Confidentiality of Documents (Legal Privilege Etc.)

4.8 Interim Measures of Protection
4.8.1 Kind of Interim Measures Which the Tribunal May Offer
4.8.2 Limits of the Tribunal’s Powers to Order Interim Measures
4.8.3 Orders to Provide Security for the Costs of the Proceeding

4.9 Assistance by the Courts
4.9.1 Extent of Court Assistance in Gathering of Evidence
4.9.2 Court Ordered Interim Measures of Protection