Jurisdiction of the Arbitral Tribunal: Practice and Procedure - Chapter 2 - Arbitration Law of Australia
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".
Originally from: Arbitration Law of Australia: Practice and Procedure
JURISDICTION OF THE ARBITRAL TRIBUNAL
2.1 ARBITRATION AGREEMENT
2.1.1 Arbitration Clause and Submission Agreement
An arbitration agreement may be a clause within a contract or a separate agreement between the parties. An arbitration agreement may arise during the course of an arbitration if a party, including a third party, submits to the jurisdiction of the tribunal.1
2.1.2 Essential Content of the Arbitration Agreement
Apart from indicating in writing an agreement to submit to arbitration disputes which are commercial in nature,2 there are no special requirements or formalities required for arbitration agreements, be they domestic or international. However, an arbitration clause should ideally, in the context of an international arbitration:
• Expressly state the parties intention to exclude the jurisdiction of the courts;
• Be clear as to the types of disputes that are to be referred to arbitration;
• Specify the seat of Arbitration;3
• Specify the number of arbitrators and any appointment procedure;
• Note the language of the arbitration; and
• Detail the rules which will govern the arbitration proceedings.
CHAPTER 2 - JURISDICTION OF THE ARBITRAL TRIBUNAL
2.1 Arbitration Agreement
2.1.1 Arbitration Clause and Submission Agreement
2.1.2 Essential Content of the Arbitration Agreement
2.1.3 Form of the Arbitration Agreement
2.1.4 Incorporation of an Arbitration Clause Contained in General Terms and Conditions
2.1.5 Law Applicable to the Interpretation of Arbitration Clauses
2.2 Applicable Substantive Law
2.2.1 Party Autonomy to Choose the Applicable Substantive Law or Rules of Law
2.2.1.1 Mandatory Laws of the Seat
2.2.1.2 Public Policy
2.2.2 Decisions According to Equity or as Amiable Compositeur
2.2.3 Application of Lex Mercatoria, General Principles Etc.
2.2.4 Applicable Substantive Law absent a Choice of Law by the Parties
2.2.5 Binding Effect of an Arbitration Clause on Third Parties
2.2.5.1 Multi-Party Situations
2.2.5.2 Admissibility of Third Party Participation without Being a Claimant or Respondent
2.2.6 Termination of an Arbitration Agreement by a Party
2.3 Arbitrability
2.3.1 Applicable Law
2.3.2 Subjective Arbitrability
2.3.2.1 State/State Enterprises
2.3.2.2 Legal Entities and Natural Persons
2.3.3 Objective Arbitrability
2.3.3.1 Corporations Act 2001 (Cth)
2.3.3.2 Insurance Contracts Act
2.3.3.3 Carriage of Goods by Sea Act
2.3.3.4 Trade Practices Act and Competition and Consumer Act 2010
2.4 Competence-Competence
2.5 Enforcement of Arbitration Agreements within/by Court Proceedings
2.5.1 Court Enforcing an Arbitration Agreement
2.5.2 Matter That Is Capable of Settlement by Arbitration
2.5.3 Procedure for Enforcing an Arbitration Agreement
2.5.4 Procedure for Enforcing an Arbitration Agreement
2.5.5 Conditions upon Awarding a Stay
2.5.6 Null and Void, Inoperative or Incapable of Being Performed;
2.5.7 Waiver of Arbitration Agreement