Commercial Arbitration Act 2010 No 61
Part 1 General provisions
1 Scope of application
(cf Model Law Art 1)
(1) This Act applies to domestic commercial arbitrations.Note.The International Arbitration Act 1974 of the Commonwealth covers international commercial arbitrations and the enforcement of foreign arbitral awards.(2) The provisions of this Act, except sections 8, 9, 17H, 17I, 17J, 35 and 36, apply only if the place of arbitration is in New South Wales.(3) An arbitration is domestic if:(a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in Australia, and(b) the parties have (whether in the arbitration agreement or in any other document in writing) agreed that any dispute that has arisen or may arise between them is to be settled by arbitration, and(c) it is not an arbitration to which the Model Law (as given effect by the International Arbitration Act 1974 of the Commonwealth) applies.(4) For the purposes of subsection (3):(a) if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement, and(b) if a party does not have a place of business, reference is to be made to the party’s habitual residence.(5) This Act does not affect any other Act by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Act.(6) Subject to subsection (5), this Act applies to arbitrations provided for in any other Act as if:(a) the other Act were an arbitration agreement, and(b) the arbitration were pursuant to an arbitration agreement, andexcept in so far as the other Act otherwise indicates or requires.(c) the parties to the dispute which, by virtue of the other Act, is referred to arbitration were the parties to the arbitration agreement,Model Law note.The term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business co-operation; carriage of goods or passengers by air, sea, rail or road.Note.This section differs from the Model Law to the extent necessary to apply Art 1 as incorporated in this Act to domestic commercial arbitrations. Section 40 contains provisions that also relate to the application of this Act.
2 Definitions and rules of interpretation
(cf Model Law Art 2)
(1) In this Act:arbitral tribunal means a sole arbitrator or a panel of arbitrators.arbitration means any domestic commercial arbitration whether or not administered by a permanent arbitral institution.arbitration agreement—see section 7.confidential information, in relation to arbitral proceedings, means information that relates to the arbitral proceedings or to an award made in those proceedings and includes the following:(a) the statement of claim, statement of defence and all other pleadings, submissions, statements or other information supplied to the arbitral tribunal by a party,(b) any information supplied by a party to another party in compliance with a direction of the arbitral tribunal,(c) any evidence (whether documentary or otherwise) supplied to the arbitral tribunal,(d) any notes made by the arbitral tribunal of oral evidence or submissions given before the arbitral tribunal,(e) any transcript of oral evidence or submissions given before the arbitral tribunal,(f) any rulings of the arbitral tribunal,(g) any award of the arbitral tribunal.disclose, in relation to confidential information, includes publishing or communicating or otherwise supplying the confidential information.domestic commercial arbitration—see section 1.exercise a function includes perform a duty.function includes a power, authority or duty.interim measure—see section 17.Model Law means the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended by the United Nations Commission on International Trade Law on 7 July 2006).party means a party to an arbitration agreement and includes:(a) any person claiming through or under a party to the arbitration agreement, and(b) in any case where an arbitration does not involve all of the parties to the arbitration agreement, those parties to the arbitration agreement who are parties to the arbitration.the Court means, subject to section 6 (2), the Supreme Court.Note.The definitions of arbitration agreement, confidential information, disclose, domestic commercial arbitration, exercise, function, interim measure, Model Law, party and the Court are not included in the Model Law.Note.The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.(2) Where a provision of this Act, except section 28, leaves the parties free to determine a certain issue, such freedom includes the right of the parties to authorise a third party, including an institution, to make that determination.(3) Where a provision of this Act refers to the fact that the parties have agreed or that they may agree or in any other way refers to an agreement of the parties, such agreement includes any arbitration rules referred to in that agreement.(4) Where a provision of this Act, other than sections 25 (1) (a) and 32 (2) (a), refers to a claim, it also applies to a counter-claim, and where it refers to a defence, it also applies to a defence to such counter-claim.(5) Notes (other than the Model Law note to section 1) included in this Act do not form part of this Act.Note.This provision is not included in the Model Law.
2A International origin and general principles
(cf Model Law Art 2A)
(1) Subject to section 1C, in the interpretation of this Act, regard is to be had to the need to promote so far as practicable uniformity between the application of this Act to domestic commercial arbitrations and the application of the provisions of the Model Law (as given effect by the International Arbitration Act 1974 of the Commonwealth) to international commercial arbitrations and the observance of good faith.(2)Note.This section differs from the Model Law. Art 2A (1) has been changed as a consequence of the application of the Act to domestic (instead of international) commercial arbitrations. Art 2A (2) is omitted because it is covered by the provision referred to in section 1C (4). Subsections (3) and (4) reflect section 17 of the International Arbitration Act 1974 of the Commonwealth.(3) Without limiting subsection (1), in interpreting this Act, reference may be made to the documents relating to the Model Law of:(a) the United Nations Commission on International Trade Law, and(b) its working groups for the preparation of the Model Law.(4) Subsection (3) does not affect the application of section 34 (Use of extrinsic material in the interpretation of Acts and statutory rules) of the Interpretation Act 1987 for the purposes of interpreting this Act.
3 Receipt of written communications
(cf Model Law Art 3)
(1) Unless otherwise agreed by the parties:(a) any written communication is taken to be received if:(i) it is delivered to the addressee personally, or(ii) it is delivered at the addressee’s place of business, habitual residence or mailing address, or(iii) if none of these can be found after making a reasonable inquiry, it is delivered to the addressee’s last-known place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it, and(b) the communication is taken to have been received on the day it is so delivered.(2) The provisions of this section do not apply to communications in court proceedings.
4 Waiver of right to object
(cf Model Law Art 4)
A party who knows that any provision of this Act from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating the party’s objection to such non-compliance without undue delay or, if a time-limit is provided for stating the party’s objection, within such period of time, is taken to have waived the party’s right to object.
5 Extent of court intervention
(cf Model Law Art 5)
In matters governed by this Act, no court must intervene except where so provided by this Act.
6 Court for certain functions of arbitration assistance and supervision
(cf Model Law Art 6)
(1) The functions referred to in sections 11 (3) and (4), 13 (4), 14 (2), 16 (9), 17H–17J, 19 (6), 27–27B, 27H–27J, 33D, 34 and 34A are, subject to subsection (2), to be performed by the Supreme Court.(2) If:(a) an arbitration agreement provides that the District Court or Local Court is to have jurisdiction under this Act, orthe functions are to be performed, in relation to that agreement, by the District Court or Local Court, as the case requires.(b) the parties to an arbitration agreement have agreed in writing that the District Court or Local Court is to have jurisdiction under this Act and that agreement is in force,Note.This section differs from the Model Law to the extent that it relates to functions conferred on the Court with respect to domestic commercial arbitrations that are not referred to in the Model Law.