The CIArb Australia News - December 2015 by The CIArb Australia News

The CIArb Australia News December 2015

The CIArb Australia News December 2015 www.ciarb.net.au

The CIArb Australian News December 2014

About

The Chartered Institute of Arbitrators (CIArb) is the professional home of dispute resolvers. As an international not-for-profit organisation, our mission is to promote the use of alternative dispute resolution (ADR) as the preferred means of resolving disputes throughout the world. We pride ourselves on being a truly global network, with over 14,000 members working in sectors as diverse as finance, construction, oil and gas and agriculture in over 120 countries worldwide. In addition to providing education, training and accreditation for arbitrators, mediators and adjudicators, CIArb acts as an international centre for practitioners, policymakers, academics and businessmen. We provide dedicated professional guidance to our members through world-renowned training, conferences, events, research and publications. We can ensure that all of our members have access to CIArb training and benefits, wherever they are in the world. Most importantly, CIArbâ&#x20AC;&#x2122;s international reputation and academic rigour provide our members with a powerful mark of quality assurance to help open doors. The CIArb Australia is one of 40 branches offering institute members a prestigious, globally-recognised qualification and access to a global professional community and regular networking opportunities. Visit www.ciarb.net.au

OVER

14, 000 MEMBERS

+ 14,000 CIArb has over 14,000 members worldwide

+ 12 0 Our members are based in over 120 countries across the world

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COMMERCIAL SECTORS

+ 40 There are over 40 CIArb branches active in six continents

+ 250 Our members work in over 250 different commercial sectors

The CIArb Australian News December 2014

CONTENTS The CIArb Australia News December 2015 ISSN 2204-0684 Volume 2 Number 2

ARTICLE PAGE President’s Report Albert Monichino QC.............................................................. 1 CIArb Centenary International Arbitration Moot Catherine Eglezos and Kristy Haining .................................................................... 3 CIArb Centenary Celebrations: Welcome Reception, Sydney Harbour Cruise .... 7 CIArb Centenary Celebrations: 3rd International Arbitration Conference ...........10 Opportunities and Challenges Presented by Australia’s New Free Trade Agreements Keynote Address Lord Peter Goldsmith PC, QC ............................17 CIArb Centenary Celebrations: Black Tie Gala Dinner .........................................19 CIArb Centenary Celebrations: Black Tie Gala Dinner After Dinner Address Old but not Obsolete The Hon Robert French AC................................................28 Do International Commercial Courts Represent a Challenge to International Arbitration? Jerome Squires................................................................................ 33 CIArb Centenary Celebrations: Black Tie Gala Dinner Highlight Video............... 35 Emergency Arbitration under ICC Rules – A Mock Case and Enforcement of Foreign Awards in China Stephanie Hunt ....................................................... 40 The 14th International Arbitration Lecture: Hilary Heilbron QC....................................... 45 Arbitration Funding in Hong Kong: The Winds of Change Susanna Khouri and Oliver Gayner ............................................................................ 46 Arbitration for the Resolution of Construction Disputes: Is It Still Fit For Purpose? Report Dr Stephen Lee.................................................................. 49 Arbitration for the Resolution of Construction Disputes: Is It Still Fit For Purpose? Keynote Address Charles Brown...................................................52 In Conversation with Dr Michael Pryles AM PBM Martin Scott QC ................................................................................................... 53 The International Arbitration Landscape in the United States: Implications for Australian Practitioners Donna Ross ............................................................. 56 Adelaide Launch of CIArb Centenary Andrew Robertson ................................. 59 Perth Launch of CIArb Centenary Beth Cubitt ....................................................61 CIArb Australia CPD and Training Program 2016 Caroline Kenny QC ............... 64 CIArb Australia Education Report: Award Writing and Accelerated Route Towards Fellowship 2015 Meghann Clark, Anthony Hadjiantoniou and Andrew Masters ........................... 65 “Team Australia” Competes in the 2015 Tokyo Intercollegiate Negotiation Competition Carol Lawson.................................................................................. 69 CIArb Australia Membership Update James Healy............................................. 70 Vale James Creer Jamie Creer............................................................................ 71 Vale John Dorter Ian Nosworthy.......................................................................... 72 Commercial Arbitration (Sharkey & Dorter) Christopher Holt.............................. 74 Commercial Arbitration (Sharkey & Dorter) Review The Hon Justice David Byrnes.............................................................................. 75 John Dorter Tribute Prof John Sharkey AM......................................................... 76 Member Profile: Prof Doug Jones AO................................................................... 77 Publisher: Chartered Institute of Arbitrators (Australia) Limited | ACN 118 131 016 Editor:

Gianna Totaro

Design:

Studio2501

The CIArb Australia News December 2015

ALBERT MONICHINO QC CIARB AUSTRALIA PRESIDENT BARRISTER, VICTORIAN BAR View Profile

President's Report Welcome to the December 2015 edition of our flagship publication, The CIArb Australia News.

s 2015 draws to a close, there is much to reflect on what has been a significant year of achievement for CIArb Australia. The CIArb Centenary Celebrations in Australia underscored the Institute’s leadership and global reputation in delivering a gold standard in professional development, training and accreditation. In 2014/2015 we held a record number of CPD events. Sponsored by leading law firms, they attracted a large number of attendees including judges, inhouse counsel, solicitors, barristers, academics, students and others from the government and business sectors. The Institute also conducted several courses, attracting candidates from around the Asia Pacific region as well as from across Australia. The courses included: Diploma in International Commercial Arbitration; Accelerated Route to Fellowship; Award Writing, and Introduction to International Arbitration.

CIArb Australia Essay Competition and the Centenary International Arbitration Moot As part of CIArb Australia’s commitment to scholarship and engagement with young members, we once again held the CIArb Australia Essay Competition which attracted submissions from students at Australia’s major universities and beyond. In addition, we held the inaugural CIArb Centenary International Arbitration Moot. This provided an opportunity for penultimate and final year university students, law graduates and new solicitors to exercise and improve their advocacy skills in an international arbitration context. Sydney Arbitration Week 2015 Sydney Arbitration Week was kicked off with the finals of the inaugural CIArb Centenary International Arbitration Moot, followed by a Welcome Reception on a Sydney Harbour Cruise. The next day, on 24 November the 3rd International

Arbitration Conference was co-presented by the Law Council of Australia, ACICA and CIArb Australia. It addressed many issues relevant to the promotion of arbitration and other forms of dispute resolution on a global scale. Of particular interest was the keynote address by Lord Peter Goldsmith PC QC, Debevoise & Plimpton LLP, London at the session entitled: “Opportunities and challenges presented by Australia’s new free trade agreements.” Lord Goldsmith spoke about the current backlash to investor-state arbitration in Europe. The conference was followed by the CIArb Centenary Black Tie Gala Dinner held at the Harbourside Room of the Museum of Contemporary Art Australia, overlooking Circular Quay. Featuring the Chief Justice of Australia, the Hon Robert French AC as the guest speaker, the event was attended by leaders of international dispute resolution from around the world and attracted the support of senior

The CIArb Australia News December 2015

judges, members of industry, government and business. Philip Morris Asia investorState Arbitration On 18 December it was reported that the Philip Morris Asia Limited (Hong Kong) v. The Commonwealth of Australia investor-state arbitration has come to an end with the eminent Arbitral Tribunal (comprising Professor KarlHeinz Böckstiegel [Presiding Arbitrator], Professor Gabrielle Kaufmann-Kohler and Professor Donald M. McRae) deciding that it does not have jurisdiction to entertain the claim brought by Phillip Morris under the Australia Hong Kong bilateral investment treaty (BIT). The award (which will explain why the Tribunal declined jurisdiction) will not be released publicly until appropriate redactions are made. This arbitration has engendered much consternation in Australia and abroad. In Australia, the threat of this claim was the catalyst for the former Labor Government's policy decision in 2011 to remove ISDS provisions from future BITs. On the global scale, this claim (and others like it) has been

the catalyst for the proposal by the European Commission to establish an international investment court. Now that the dust has settled, it is well to remember that the Australia - Hong Kong BIT is a relatively crude instrument, lacking the public health exceptions that are commonplace in modernday BITs and Free Trade Agreements. If the Australia Hong Kong BIT had contained those exceptions, the claim may never have been brought in the first place.

scheduled for 4 January 2016.

Passing of Jim Creer and John Dorter

In September at the Centenary conference held in Singapore, CIArb launched and published an Introduction and revised Guidelines on Interim Measures, Security for Costs and Jurisdictional Challenges. They are all available on the Institute's global website. The Institute is currently working on the next set of Guidelines dealing with arbitral awards: Guideline on Drafting Arbitral Awards (Part I), Guideline on Drafting Awards of Interest (Part II) and Guideline on Drafting Awards of Costs (Part III). It is anticipated that the next set of Guidelines will be launched in the first half of 2016.

It is with great sadness that I report the passing of James (Jim) Creer, CIArb Australia’s founding Chairman. As our previous editions reflect, he was a giant in the establishment of the Australian branch. A private funeral was held on 18 December with a public memorial scheduled to be held in February 2016. Details will be circulated as soon as they are confirmed. On 23 December, another giant of the Australian arbitration community and Fellow of the Institute, John Dorter, passed away after battling cancer. His funeral is

Membership As I reported a year ago, CIArb Australia’s membership is on the upward trend. We extend our congratulations to Gustaaf Reerink, Foreign Counsel at ABNR Counsellors at Law, Jakarta and a graduate of this year’s Diploma course held in Sydney, in becoming the 14,000th CIArb member. CIArb Guidelines

Season’s Greetings Finally, on behalf of our Council and Chapter Committees, I would like to take this opportunity to thank you for your support and extend our best wishes for the festive season and the year ahead.

Albert Monichino QC President Albert Monichino QC, Lord Peter Goldsmith PC QC (Debevoise & Plimpton LLP, London) and Max Bonnell (King & Wood Mallesons, Sydney).

The CIArb Australia News December 2015

CATHERINE EGLEZOS SOLICITOR HERBERT SMITH FREEHILLS, MELBOURNE MOOT COMMITTEE REPRESENTATIVE (VICTORIA) View Profile KRISTY HAINING SENIOR ASSOCIATE HERBERT SMITH FREEHILLS, PERTH MOOT COMMITTEE REPRESENTATIVE (WESTERN AUSTRALIA) View Profile

CIArb Centenary International Arbitration Moot When: 2 pm â&#x20AC;&#x201C; 4 pm 23 November 2015 Where: Herbert Smith Freehills, Sydney Photos: Rick Stevens

arking the commencement of Sydney Arbitration Week, the CIArb Centenary International Arbitration Moot provided penultimate and final year university students, law graduates and young lawyers, with an opportunity to exercise and improve their advocacy skills by participating in an international commercial arbitration hearing. As members of the national moot committee, we were very pleased to work with CIArb

Australia in organising this special event.

substantive aspects of the case.

From New South Wales, Queensland, Australian Capital Territory, Victoria, Western Australia and South Australia, young and budding practitioners argued many legal issues, both procedural and substantive in nature. The ACICA Rules governed the procedural aspects of the moot, whilst the United Nations Convention On Contracts For The International Sale Of Goods (1980) (CISG) governed the

Key questions to be considered included whether an email, together with an unsigned contract, could give rise to a valid arbitration agreement, giving the ACICA constituted panel jurisdiction. There was also a curious case of arbitrator bias resulting from a med-arb situation, which was handled with extreme delicacy by all mooters. It was apparent that the various arbitral tribunals had fun with the role of Mr/s Morphus QC, the allegedly

Click below

INTERNATIONAL EXPERIENCE. LOCAL INSIGHT. HERBERTSMITHFREEHILLS.COM

The CIArb Australia News December 2015

Harry Stratton (University of Sydney), Christopher Lum (Supreme Court of Victoria) Ashna Taneja (University of NSW), Albert Monichino QC, Bronwyn Lincoln, Andrea Carlevaris, Shane Dawson (Meridian Lawyers), Julia Wang (Supreme Court of Victoria) and Suzanne Zhou (Victorian Department of Education).

impugned arbitrator. Mooters were also required to argue on whether a delivery of olives from Greece to Australia was fit for purpose pursuant to the CISG. Teams competed in two Preliminary rounds held in their respective States/Territories (once as Claimant and once as Respondent) with the top four teams progressing through to the Semi and Grand Finals which were hosted at Herbert Smith Freehillsâ&#x20AC;&#x2122; Sydney offices. The Grand Final was conducted before a panel of three arbitrators: Andrea Carlevaris, Secretary General, ICC International Commercial Court of Arbitration, Paris; Bronwyn Lincoln, Partner Herbert Smith Freehills and Albert Monichino QC, President of CIArb Australia. Teams Victoria and New South Wales battled it out in what was an extremely close Grand Final but it was Team Victoria who ultimately prevailed. The results were as follows:

Winning Team: Victoria Julia Wang (Supreme Court of Victoria), Shane Dawson (Meridian Lawyers), Christopher Lum (Supreme Court of Victoria) and Suzanne Zhou (Victorian Department of Education and Training) Runners Up: NSW - Ashna

Taneja (University of NSW), Harry Stratton (University of Sydney) and William Hanna (University of Sydney) Best Advocate for the Grand Final Round: Julia Wang The advocacy across the board was of excellent quality. Mooters presented coherent, persuasive arguments and did well under fire with questions from the arbitrator panels. Congratulations to all involved. Special thanks to Albert Monichino QC and CIArb

The CIArb Australia News December 2015

Stuart Veitch (ACT Representative), Erin Eckhoff (NSW Representative), Albert Monichino QC, Andrea Carlevaris, Bronwyn Lincoln and Catherine Eglezos (Victoria Representative).

Australia, our fellow members of the organising committee: Julia Dreosti, Lipman Karas (South Australia), Nicholas Floreani, Edmund Barton Chambers (South Australia), Erin Eckhoff, King Wood & Mallesons (NSW); Stuart Veitch (ACT); James Sullivan, Leo Cussen Centre for Law (Queensland), as well as the moot's supporting organisations: Australian Disputes Centre, Griffith University, Herbert Smith Freehills, Law Institute of Victoria, Lipman Karas, Melbourne Commercial Arbitration and Mediation Centre, NSW Law Society Young Lawyers and University of Canberra Click below

We would also like to extend our thanks to the numerous members of the legal profession and academics across Australia who provided their time to serve as arbitrators, testing the participants on their knowledge of arbitration and of the facts.

Ten moots have taken place, each before a panel of three arbitrators so we would like to warmly thank all

those who have supported the moot with some arbitrators even making repeat performances.

The CIArb Australia News December 2015

Smooth sailing. Albert Monichino QC welcomes guests Isuru Devendra (Clifford Chance, Perth) and Peter Harris (Clifford Chance, Perth) to Sydney Arbitration Week and the CIArb Centenary Celebrations.

CIArb Centenary Celebrations: Welcome Reception, Sydney Harbour Cruise When: Where: Photos:

23 November 2015 Tribal Warrior Charter Cruise, Sydney Harbour Rick Stevens

Welcome Remarks Albert Monichino QC CIArb Australia President

n behalf of the CIArb Australia Board, welcome to CIArb Centenary Celebrations Australia. For the benefit of our international guests, just a reminder that Sydney is not the capital of Australia. Rather, it is one of several Australian cities. Melbourne and Sydney, in particular, enjoy a healthy rivalry. Melbourne is adorned by classical 19th century

architecture and has the best coffee in Australia. Melburnians have been known to linger for hours in cafes debating philosophical questions, such "what is the meaning of life". Sydney-siders, on the other hand, tend to regard such pursuits as frivolous.

For they know, as one Sydney-based playwright put it: THE MEANING OF LIFE IS A SYDNEY HARBOUR VIEW Enjoy!

The CIArb Australia News December 2015 As part of the Centenary Celebrations, CIArb Australia hosted a twilight Welcome Reception on Sydney Harbour. Exploring one of the worldâ&#x20AC;&#x2122;s most beautiful city harbours on board the historic Mari Nawi (Big Canoe), delegates were greeted by a sacred smoking ceremony conducted by Aboriginal Tribal Elder, Terry Olsen at Eastern Pontoon, Circular Quay. Established in 1998, the Tribal Warrior Association operates Sydney's only Aboriginal owned and operated cultural cruise.

The CIArb Australia News December 2015

1. Tamlyn Mills (Minter Ellison, Sydney), Deborah Tomkinson (ACICA, Sydney) and Caroline Kenny QC (CIArb Vice President) 2. Bronwyn Lincoln (Herbert Smith Freehills, Melbourne), Leela Titus (Singapore) and Catherine Eglezos (Herbert Smith Freehills, Melbourne) 3. Tim Castle (UNCCA, Sydney) and Ben Olbourne (39 Essex Chambers, Singapore) 4. John Arthur (Vic Bar, Melbourne), Andrea Calevaris (ICC International Court of Arbitration, Paris) and Erin Eckhoff (King Wood & Mallesons, Sydney) 5. Andrew Jeffries (Sydney) and Mel Schwing (University of Melbourne) 6. Nadine Emsley (Kriesson Legal, Sydney) and Philip Bambagiotti (CitaCastel, Sydney) 7. Marina Kofman (QBE, Sydney), Tom Fletcher (Minter Ellison, Brisbane), Evan Goldman (Minter Ellison, Brisbane) and Charles Brown, (CIArb Global President, London) 8. Sally Hartley (Adelaide) and Dr Fan Yang (City University of Hong Kong) 9. Brenda Horrigan (Herbert Smith Freehills, Shanghai) and Chad Catterwell (Herbert Smith Freehills, Hong Kong) 10. Albert Monichino QC, Campbell Bridge SC (7 Wentworth Selborne, Sydney) and Dr Donald Charrett (Melbourne TEC Chambers, Melbourne) 11. Emily Zylstra (Herbert Smith Freehills, Perth), Tim Goyder (Herbert Smith Freehills, Perth), Harry Stratton (University of Sydney) and Ashna Taneja (University of NSW) 12. The Hon Justice Peter Vickery (Supreme Court of Victoria) and Leonie Powrie (Sydney)

The CIArb Australia News December 2015

3 rd International Arbitration Conference:

Opportunities and Challenges for Dispute Resolution in the Next Century

9.00 am Welcome Remarks Albert Monichino QC, CIArb Australia President, Melbourne

2.30 pm Session 4 – Australia and New Zealand as Seats for Arbitration – Opportunities and Challenges

9.10 am Opening Address

•

Putting the tyranny of distance into context

The Hon Justice James Allsop AO Chief Justice of the Federal Court of Australia

•

Substantial shift in judicial attitude

•

Types of international disputes ripe for arbitration in Australasia

9.40 am Session 1 – Emerging Trends in International Arbitration •

New techniques in management of time and costs

•

Challenges to arbitrators

•

The life of arbitral secretaries

•

Regulating ethics of party representations

•

How to deal with multi-party arbitrations

Chair: Jim Delkousis, DLA Piper, Melbourne Panellists: Dr Christopher Boog, Schellenberg Wittmer, Singapore and Zurich

Chair: David Fairlie, ACICA Panellists: Hilary Heilbron QC, Brickcourt Chambers, London David Kreider, Independent International Arbitrator, Auckland Khory McCormick, Minter Ellison, Brisbane

4.00 pm Session 5 – The Courts Fight Back?: The Hague Convention on Court Agreements and the Establishment of Regional International Commercial Courts •

Progress with accession to the Hague Convention

•

An update on the Singapore International Commercial Court

•

Moves to establish other regional commercial courts

11.30 am Session 2 – Arbitration in the Asia Pacific – Strength in Diversity?

•

Absent enforcement considerations, does arbitration have any significant advantages over curial determination of international commercial disputes?

The emergence of regional international arbitration jurisprudence and common judicial approach

Chair: Ian Nosworthy, Cowell Clarke, Adelaide

Andrea Carlevaris, ICC Court of Arbitration, Paris Professor Doug Jones AO, Clayton Utz, Sydney Dr Sam Luttrell, Clifford Chance, Perth

•

Overcoming the common law, civil law divide

•

The likely future complexion of commercial disputes in the Asia-Pacific

Chair: Caroline Kenny QC, Victorian Bar, Melbourne Panellists: Liz Cheung, Kim & Chang, Korea Dr Chen Fuyong, Beijing Arbitration Commission, Beijing Datuk Professor Sundra Rajoo, Kuala Lumpur Regional Centre for Arbitration (KLRCA)

12.45 pm Lunch 1.30 pm Session 3 – Opportunities and Challenges Presented by Australia’s New Free Trade Agreements •

Update on China - Australia, Korea-Australia and Trans Pacific Partnership Free Trade Agreements

•

ISDS debate: where are we at?

•

What is the future of investor-state arbitration in the Asia-Pacific

Panellists: Professor Richard Garnett, University of Melbourne and Herbert Smith Freehills, Melbourne Malcolm Holmes QC, Wentworth Chambers, Sydney Daniel Kalderimis, Chapman Tripp, Wellington Lord Peter Goldsmith PC, QC, Debevoise & Plimpton LLP, London

5.00 pm Closing address The Hon Justice Tom Bathurst AC, Chief Justice of the Supreme Court of New South Wales

5.10 pm Concluding remarks Professor Doug Jones AO

Chair: Albert Monichino QC, Victorian Bar, Melbourne Keynote address: Lord Peter Goldsmith PC, QC, Debevoise & Plimpton LLP, London Commentator: Max Bonnell, King & Wood Mallesons, Sydney

CLICK TO VIEW FULL PHOTO GALLERY

11 The CIArb Australia News December 2015

CIArb Australia President Albert Monichino QC: “I extend a special welcome to our international guests who have come from far and wide across the globe from Switzerland to China.”

CIArb Centenary Celebrations: 3rd International Arbitration Conference When: Where: Photos:

24 November 2015 Wentworth Sofitel, Sydney Rick Stevens

Welcome Remarks Albert Monichino QC CIArb Australia President

our Honours, Distinguished Guests, Ladies and Gentlemen

On behalf of CIArb Australia, I welcome you to the 3rd International Arbitration Conference, presented by CIArb Australia in conjunction with the Business Law Section of the Law Council of Australia and the Australian Centre for International Commercial Arbitration. I extend a special welcome to our international guests

who have come from far and wide across the globe, from Switzerland to China. I am particularly pleased to see so many representatives from our region (incl from New Zealand, Malaysia, Singapore, Korea, Thailand, Hong Kong and China) This is indicative of an emerging regionally integrated arbitration system that we are seeing in the Asia–Pacific, with arbitration practitioners working across jurisdictions, and courts in the region

(applying the UNCITRAL Model Law and the New York Convention) drawing on each other’s judgments. Today we have a broad and interesting program, comprising five sessions, exploring some of the most topical issues currently facing international arbitration practitioners. Those topics will be examined by several panels of distinguished speakers. As well, we are honoured to have two Australian Chief

The CIArb Australia News December 2015

Chief Justice of the Federal Court of Australia, The Hon Justice James Allsop AO delivering the Opening Address: "The Nature of the Arbitral Legal Order and Aspects of the Place of the Courts".

Justices deliver the Opening Address and Closing Address respectively. May I take this opportunity to thank the organising committee for this conference, led by the omni-present Professor Doug Jones AO, and in particular Carol Oâ&#x20AC;&#x2122;Sullivan of the Law Council, for their tireless work in putting this conference together. I trust you will enjoy the conference, and hope to see many of you at the CIArb Centenary Dinner this evening. It now falls to me to introduce Chief Justice Allsop who will deliver the Opening Address

The Hon James Leslie Bain Allsop AO Joined the Bar in New South Wales in 1981. He was appointed Senior Counsel in New South Wales in 1994. On 7 May 2001 he was appointed a Judge of the Federal Court of Australia On 2 June 2008 he was appointed President of the New South Wales Court of Appeal. On 1 March 2013, he was appointed Chief Justice of the Federal Court of Australia, and continues in that role today

He is a leading jurist in this country and the Asia-Pacific region, and has a particular interest and expertise in international commercial arbitration and maritime law. His judgments exploring: (a) the relationship between courts of the seat and enforcement courts; and (b) the reliance on alleged breaches of natural justice (or lack of procedural fairness) to set aside, or resist enforcement of, international arbitral awards, repay reading. Without further ado, I give you Chief Justice Allsop

Click below

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13 The CIArb Australia News December 2015

1. Caroline Kenny QC (Vic Bar), Liz Cheung (Kim & Chang, Seoul), Prof Datuk Sundra Rajoo (KLRCA, Kuala Lumpur) and Dr Chen Fuyong (Beijing Arbitration Commission) 2. Lord Peter Goldsmith PC QC (Debevoise & Plimpton LLP, London) and Max Bonnell (King & Wood Mallesons, Sydney) 3. Khory McCormick (Minter Ellison, Brisbane), David Fairlie (ACICA, Sydney), Hilary Heilbron QC (Brickcourt Chambers, London) and David Kreider (Independent International Arbitrator, Auckland)

The CIArb Australia News December 2015

1. Patrick Mead (Carter Newell, Brisbane), Andrew Lonsdale (Built Holdings Pty Limited, Sydney), Michael Shand QC (Vic Bar) and Dr Donald Charrett (Melbourne TEC Chambers) 2. Ruth Stackpoole-Moore (Harbour Litigation Funding, Hong Kong), Dr Therese Wilson (Griffith Law School, Brisbane) and Asst Prof Louise Parsons (Bond University, Gold Coast) 3. Prof Doug Jones AO, The Hon Chief Justice Tom Bathurst AC (NSW Supreme Court) and Lord Peter Goldsmith PC QC 4. Ian Nosworthy (Cowell Clarke, Adelaide), Prof Richard Garnett (University of Melbourne and Herbert Smith Freehills, Melbourne), Lord Peter Goldsmith PC QC, Malcolm Holmes QC (Wentworth Chambers, Sydney) and Daniel Kalderimis (Chapman Tripp, Wellington)

15 The CIArb Australia News December 2015

1. Black Tie Gala Dinner Sponsors 2. Jim Delkousis (DLA Piper, Melbourne), Andrea Carlevaris (ICC Court of Arbitration, Paris), Dr Christopher Boog (Schellenberg Wittmer, Singapore and Zurich), Prof Doug Jones AO (Clayton Utz, Sydney) and Dr Sam Luttrell (Clifford Chance, Perth) 3. Full house 4. Daniel Kalderimis (Chapman Tripp, Wellington), Owain Stone (KordaMentha, Melbourne) and Damian Sturzaker (Marque Lawyers, Sydney) 5. Andrew Jeffries (Independent Arbitrator, Sydney) and John Green (New Zealand International Arbitration Centre, Takapuna)

The CIArb Australia News December 2015

1. Julie Soars (7 Wentworth/Selborne Chambers, Sydney) and Dr Fan Yang (City University of Hong Kong) 2. Ken Fleming QC (Qld Bar, Brisbane) 3. Liz Cheung, Caroline Kenny QC and Dr Fan Yang 4. Gitanjali Bajaj (DLA Piper Australia, Sydney) and Albert Monichino QC 5. Julia Dreosti (Lipman Karas, Adelaide), Deborah Tomkinson (ACICA, Sydney) and Peter McQueen (Arbitrator and Mediator, Sydney) 6. John Arthur (Vic Bar), Michael Shand QC (Vic Bar) and The Hon Justice Peter Vickery (Victorian Supreme Court) 7. Sandrah Foda (Third Floor St James Hall Chambers, Sydney) and Erika Williams (Baker & McKenzie, Sydney) 8. Tim Grave (Clifford Chance, Sydney), Jim Delkousis, Donna Ross, Gregory Nell SC (New Chambers, Sydney), Bridie Nolan (12 Wenworth Chambers, Sydney), Philip Bambagiotti (CitaCastel, Sydney) and Paul Menzies QC (12 Wenworth Chambers, Sydney)

17 The CIArb Australia News December 2015

Lord Peter Goldsmith PC QC delivering the Keynote Address: “Opportunities and Challenges Presented by Australia’s New Free Trade Agreements”.

CIArb Centenary Celebrations: 3rd International Arbitration Conference Keynote Address: Lord Peter Goldsmith PC, QC, Debevoise & Plimpton LLP, London View profile

t is a pleasure to be here in Sydney for this third International Arbitration Conference and to continue to be a part of the Chartered Institute of Arbitrator’s Centenary Celebrations. Today I am going to be talking about the current state of play in the on-going Investor State Dispute Settlement (or “ISDS”) debate and its implications for the future of ISDS in the Asia-Pacific region but also in Europe. There has been recent success for those of us in the arbitration community who want to see international investment in and from the Asia-Pacific region thrive, but the future flourishing of ISDS is still uncertain.

The system of investor state dispute settlement which has grown up over the years, has given rise in the very recent past to a storm of criticism and polarised views that could not have been imagined 10 years ago. It is worth recalling that before the system of international arbitration, to determine disputes between host nations and foreign investors that protection depended on diplomatic means – states representing their nationals in diplomatic negotiations and even earlier, on using military force to enforce those demands. One of ISDS’ great successes has been largely to depoliticise investment disputes.

But in the very recent past, the polarised debate, with NGOs and civil society vociferously in the lead, has led to complaints that international arbitration for international disputes amounts to an undemocratic secret court system for preventing the regulation of industry in the interests of citizens. In its worst excesses it is partly driven by anti-big business ideologies, fuelled even by an antiAmerican feeling and thrives on examples of investment claims which rouse public passions. Foremost among them has been Philip Morris’ challenge to plain packaging for cigarettes here in Australia and in Germany, Vattenfall’s challenge to Germany’s regulation of

The CIArb Australia News December 2015

the nuclear industry but it has been fuelled as much by the ignorance of how the system actually works. The extent of the challenge cannot be underestimated as I shall show. But I will also show that the criticisms in the somewhat esoteric area of investor state arbitration has spilled over into the more general world of commercial arbitration or at least threatens to do so. It has even become a significant issue in high politics. Critics of ISDS have fallen upon the words of presidential contender Hillary Clinton as supporting their position. Republican would-be Donald Trump has said he is against all free trade agreements.

My principal thesis is that the time has come to recognise that the arbitration community cannot be complacent about either the threat to the system of international arbitration or the need for reform of that system. Nothing raises these issues more acutely 1.

than the EU proposal for an Investment Court. ISDS Debate: The story so far I want to focus my attention on the two major investment treaty debates that are taking place: the recently agreed, the Trans Pacific Partnership (or “TPP”) and another, the proposed arrangement between the EU and the US in the Transatlantic Trade and Investment Partnership (or “TTIP”), for which negotiations are on-going. The question of whether ISDS provisions should be included in TPP and TTIP has been the focal point of an animated and devising debate about the merits of investment treaties. TPP (the ambitious and comprehensive trade agreement between 12 Pacific Rim states: Australia, Brunei, Canada, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States) included ISDS provisions in the final agreed text. As for TTIP, the debate has been long and marked by a polarisation and bad temper which is surprising given the subject matter. The latest development is that a permanent Investment Court is being proposed by the European Union. This is in contrast to the EU-Canada Comprehensive Economic Trade Agreement (CETA) and the EU-Singapore Free Trade Agreement, which include traditional ISDS by arbitration. This is unchartered territory for investor state dispute settlement and it remains to be seen whether this proposal will be acceptable to the US and whether it will be

included in the final text of the TTIP agreement. Before considering TPP and TTIP in further detail, I will first consider the key critiques which are central to the debate regarding ISDS. The raison d’etre of ISDS is the encouragement of international investment. However, in the past, it has been difficult to find empirical support for the assertion that ISDS increases international investment.1 Two recent studies have been published this year redressing the balance to support for this assertion to some extent. A Hogan Lovells survey published earlier this year discussed at the Investment Treaty Forum at the British Institute of International and Comparative Law in London on 8 May 2015, shows that, of 301 senior corporate decision makers surveyed, 20% said that they would not invest overseas without the protection of an investment treaty, and 60% said that such treaties were “very important”. Extrapolating from the survey results, the business community seems to be saying that proper investment protection enforceable through ISDS could account for an 80% swing in the number of potential corporate investors. A study by the Netherlands Bureau for Economic Policy issued a paper showing that “ratified BITS increase on average bilateral FDI stocks by 35% compared to those of country pairs without a treaty.” The study also recognised that the impacts were most marked where the treaties were between, low, lower middle and upper middle income countries. Read more

See UNCTAD Working Paper, The Impact of International Investment Agreements on Foreign Direct Investment.

19 The CIArb Australia News December 2015

CIArb Australia President Albert Monichino QC: â&#x20AC;&#x153;Australia has come a long way in the past 20 years, and in particular, in the past five years since the reform of the arbitration landscape.â&#x20AC;?

CIArb Centenary Celebrations: Black Tie Gala Dinner When: 24 November 2015 Where: Museum of Contemporary Art, Sydney Photos: Rick Stevens

Welcome Remarks Albert Monichino QC CIArb Australia President

hief Justice French, Chief Justice Allsop, Chief Justice Bathurst, Chief Justice Martin, Your Honours, Distinguished Guests, Ladies and Gentlemen

Click below

Welcome to the Chartered Institute of Arbitrators Centenary Dinner

MR MONICHINO, KEEP IT SHORT - YOU WILL MAKE MORE FRIENDS THAT WAY

When I first joined the Bar (many years ago now), a senior judge said to me:

You will be pleased to hear that I intend to follow that sage advice

The CIArb Australia News December 2015

We are here this evening to celebrate a major milestone for Chartered Institute of Arbitrators – its centenary. The celebrations kicked off in Hong Kong in March and have travelled across the globe. This evening represents the culmination of those celebrations. Obviously they left the best to last. We are honoured this evening by the presence of CIArb’s Global President, Charles Brown and his soon to be successor, Professor Datuk Sundra Rajoo of Malaysia. This evening is also an opportunity to celebrate the 20 year anniversary of the Australian Branch of CIArb. I am pleased to see around the room many of the past Presidents and Chairmen of the Branch, all of whom have made a substantial contribution, for which I thank them. Australia has come a long way in the past 20 years and in particular in the past 5 years since the reform of the arbitration landscape in Australia. In that regard, I would like to acknowledge the contribution of the Hon James Spigelman, then Chief Justice of the Supreme Court of New South Wales, in being the catalyst for the long overdue reform of the domestic arbitration system in this country.

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Most importantly, there has been a radical shift in judicial support for Australia. Arbitration is no longer perceived to be in competition with the courts, particularly insofar as the resolution of cross-border disputes are concerned. It is trite that arbitration cannot flourish in any jurisdiction without proper judicial support. The tremendous judicial support that arbitration presently enjoys is evidenced by the presence this evening of no less than four chief justices of our superior courts, as well as many other distinguished judges.

The future for arbitration in Australia (and the Asia Pacific region) is bright. The global economic axis continues to move to the East, and with the advent of new Free Trade Agreements, cross-border

disputes in this region will continue to rise. May I conclude with a few thank you’s First, I would like to thank our many sponsors: Banco Chambers, DTI, Holman Fenwick Willan, Holman Webb, King Wood & Mallesons, KordaMentha, Melbourne Commercial Arbitration and Mediation Centre, Minter Ellison, Victorian Bar and Wolters Kluwer. Without their support, this memorable celebration would not have been possible Secondly, I would like to thank Caroline Kenny QC, Vice President of CIArb Australia and Chair of the Centenary Committee. Caroline has worked tirelessly all year on putting on an array of Centenary events, and in particular in overseeing the organisation of this evening’s dinner. Finally, I would like to thank the irrepressible Gianna Totaro. Gianna is responsible for media and publications, but she does much more. Indeed she is the engine room of this organisation, and we could not do a fraction of what we do without her tireless efforts. Please enjoy the evening.

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CIArb Centenary Celebrations: Black Tie Gala Dinner Program 7.00 – 7.30 pm

Master of Ceremonies

Private viewing of MCA Collection Level 2, MCA

Richard Ackland, Legal Editor-at-Large, The Guardian Australia and Publisher, Justinian and Gazette of Law and Journalism

7.30 – 8.00 pm Drinks and canapés on arrival Harbourside Terrace, Level 6, MCA 8.00 – 11.30 pm Dinner Harbourside Room Level 6, MCA

President’s Welcome Albert Monichino QC, CIArb Australia President Special Guest Speaker Introduction Caroline Kenny QC, CIArb Australia Vice President Chair, CIArb Australia Centenary Committee After Dinner Address The Hon Robert French AC, Chief Justice of Australia Vote of Thanks to Speaker Albert Monichino QC, CIArb Australia President CIArb Centenary International Arbitration Moot Presentation Charles Brown, Global CIArb President CIArb Australia International Arbitration Essay Presentation Damian Sturzaker, CIArb Australia Vice President Closing Remarks Prof Doug Jones AO, Global Chairman, CIArb Centenary Celebrations Committee

The CIArb Australia News December 2015

23 The CIArb Australia News December 2015

Paul Kenny (Partner, Allens, Melbourne), Datuk Professor Sundra Rajoo (CIArb Global President-Elect, Kuala Lumpur), Andrea Carlevaris (Secretary General, ICC International Commercial Court of Arbitration, Paris) and Albert Monichino QC.

The CIArb Australia News December 2015

1. Bridget Sordo (NSW Law Society), Alex Baykitch (ACICA President, Sydney), Tom French (Clyde & Co, Perth), The Hon Justice Clyde Croft (Supreme Court of Victoria) and Michael Shand QC (Vic Bar, Melbourne) 2. Christopher Lemercier (University of NSW), The Hon Chief Justice Tom Bathurst AC (NSW Supreme Court) and Ian Govey AM (Australian Government Solicitor, Canberra) 3. Banco Chambers, Sydney: Adam Hochroth, Elizabeth Notman, Elliot Hyde, Robert Dick SC and Farid Assaf 4. John Walton (AMINZ President, Auckland) and Dr Derek Johnston (Thorndon Chambers, Wellington) 5. Jim Delkousis (DLA Piper, Melbourne), David Marsh (AMPLA President, Perth), Greg Steinepreis (Squire Patton Boggs, Perth) and Georgia Quick (Ashurst, Sydney) 6. Beijing Arbitration Commission: Xue Yu, Dr Fuyong Chen and Zhishou Wang 7. Andrea Calevaris (ICC, Paris) and Ching Han Kreider (Auckland) 8. Chad Catterwell (Herbert Smith Freehills, Hong Kong) and David Kreider (Auckland)

25 The CIArb Australia News December 2015

1. Corrs Chambers Westgarth: Michael Earwaker (Sydney) and Lucy Goldsmith (Melbourne) 2. Prof Doug Jones AO, Dr Fan Yang (City University of Hong Kong), The Hon Chief Justice Robert French AC (High Court of Australia) 3. Alice Spigelman AM (Sydney), The Hon Justice Margaret Beazley AO (President, NSW Court of Appeal) and The Hon Chief Justice Robert French AC (High Court of Australia) 4. The Hon James Spigelman AC QC (Chairman, ABC, Sydney), Hilary Heilbron QC (Brick Court Chambers, London), The Hon Garry Downes AM (Sydney) and Albert Monichino QC. 5. Andrea Calevaris (ICC, Paris) and Caroline Kenny QC (CIArb Australia Vice President, Melbourne) 6. Nicola Nygh (Resolve Litigation Lawyers, Sydney) 7. The Hon Chief Justice James Allsop AO (Federal Court of Australia), Paul Kenny (Allens, Sydney) and Prof Datuk Sundra Rajoo (KLRCA, Kuala Lumpur) 8. Susie Nosworthy (Adelaide), The Hon Garry Downes AM (Sydney), John Wakefield (Holman Webb Lawyers, Sydney) and Ian Nosworthy (Cowell Clarke, Adelaide)

The CIArb Australia News December 2015

1. Michael Hwang SC (Michael Hwang Chambers, Singapore), Sheena Nathwani (Wolters Kluwer, London), Martin Scott QC (Vic Bar) and Charlotte Pache (DTI Global, Melbourne) 2. The Hon Justice John Middleton (Federal Court of Australia, Melbourne), Sarah Fregon (Vic Bar) and Alex Baykitch (ACICA President, Sydney) 3. The Hon Garry Downes AM, Malcolm Longstaff OAM, Prof Doug Jones AO and Derek Minus 4. The Hon James Spigelman AC, The Hon Chief Justice Wayne Martin AC (WA Supreme Court), The Hon Justice Patricia Bergin (Chief Judge in Equity of the NSW Supreme Court) and Richard Ackland (Justinian, The Guardian, The Saturday Paper) 5. CIArb Australia Presidents, Past and Present: John Wakefield (centre), Malcolm Holmes QC (right) and Albert Monichino QC (standing) with Charles Brown (CIArb Global President) 6. Hilary Heilbron QC (London), Valerie French (Perth) and Caroline Kenny QC (Melbourne)

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1. Erin Eckhoff (King & Wood Mallesons, Sydney), Stuart Veitch (Canberra), Robert Newlinds SC (Banco Chambers, Sydney), Catherine Eglezos (Herbert Smith Freehills, Sydney) and Julia Dreosti (Lipman Karas, Adelaide) 2. The Hon James Spigelman AC QC (Chairman, ABC, Sydney) and Justin Gleeson SC (Solicitor General of Australia, Canberra) 3. Charles Brown and Catherine Eglezos 4. Caroline Kenny QC 5. Prof Doug Jones AO 6. Richard Ackland

The CIArb Australia News December 2015

The Hon Robert French AC, Chief Justice of Australia: “The relationship between arbitration and the courts has shifted significantly over the last century.”

After Dinner Address: Old but not Obsolete The Hon Robert French AC Chief Justice of Australia View Profile

he Chartered Institute of Arbitrators in 2015 has demonstrated a capacity for celebration of its centenary on a global scale — celebrations which embrace reflections on the past, present and future of arbitration and consensual dispute resolution generally. The demonstration of that celebratory capacity reflects the Institute’s world-wide membership and international network of branches and its standing as a leading contributor to education, scholarship, standard setting and law reform. The story of the Institute over the last 100 years since its modest beginnings in London in 1915 is one of remarkable achievement. I thank the Institute and its officers for the opportunity to recognise that achievement on

this occasion and, in particular, to recognise the work of the Australian Branch and its officers and members.

words completely out of context they can be translated into a very fine understatement of the present condition of the Institute.

I tried to find some concise expression of a theme for this evening's remarks which, mercifully for all of us, precedes the main course and so, despite its threatening designation on the program as a 'Keynote Address' must be brief. The expression of a theme eventually presented itself in the words of Arnold Schwarzenegger. In his most recent Terminator film, made 30 years after the first of the franchise, he justified his continuing usefulness as an apparently aging, early model robotic hit man from the future with the heavily accented assertion that 'I may be old but I am not obsolete'. Taking those

The Institute is old, not so much by the nominal measure of 100 years, but by the time compressed standards of the last 50 years or so in which more and more change seems to have happened in less and less time, change with which the Institute has been fully engaged. The profile of its activities responding to that dynamic environment indicates that obsolescence is not on its agenda. The Institute began its existence when the future, which is our present, was probably beyond the most extravagant imaginings of the most prescient people of the time. Yet events were happening then which were

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CIARB ‘OLD BUT NOT OBSOLETE’: CJ FRENCH Stefanie Garber Lawyers Weekly 4 December 2015 Quoting action movie The Terminator, High Court chief justice Robert French suggested arbitral institutions have played a key role in legitimising arbitration. Speaking at the Chartered Institute of Arbitrators (CIArb) Centenary Dinner, Chief Justice French said arbitration had been around for several decades when the CIArb was established but had long been an undisciplined field. “The legal establishment did not trust the process, perhaps seeing it as a threat to its representational monopolies and those of the courts in dispute resolution,” he said. The CIArb was founded in 1915 to raise the status of arbitrators and establish arbitration as a field of study and practice. Chief Justice French described the court’s view of arbitrators in the mid-20th Century as “dubious below-stairs figure providing a second-rate system of backyard justice and requiring close curial supervision”. “Before 1979 in England and 1984 in Australia, the arbitrator was subject to frequent judicial lashings and had only to stumble, however innocently, to be branded with the stigma of a very broadly defined concept of 'misconduct'.” After legislation was introduced in Australia in 1984, however, he suggested arbitrators began rising in status and the relationship between arbitrators and courts became clearly defined. He noted the work conducted by the CIArb in encouraging this shift over the past 100 years. “In his most recent The Terminator film, made 30 years after the first of the franchise, [Arnold Schwarzenegger] justified his continuing usefulness as an apparently ageing, early model robotic hit man from the future with the heavily accented assertion that 'I may be old, but I am not obsolete',” he said. “Taking those words completely out of context they can be translated into a very fine understatement of the present condition of the Institute.” CIArb president Albert Monichino also spoke at the dinner, saying arbitration in Australia had “come a long way” since the CIArb arrived 20 years ago. “Arbitration is no longer perceived to be in competition with the courts, particularly insofar as the resolution of cross-border disputes are concerned,” he said. “It is trite that arbitration cannot flourish in any jurisdiction without proper judicial

to set in motion changes of a social, political and technological character affecting international relations, the functions and subject matters of international law, the nature, speed and complexity of trade and commerce, and the movement of peoples, information and ideas around the globe. In 1915, the world was in the grip of a murderous conflict. That war to end all wars laid the foundations for the Second World War. Both saw the emergence of international endeavours to manage tensions and to resolve disputes between nations. The developing international order was paralleled by the creation of conventions and treaties, protocols, model laws and common form instruments responding in a variety of ways to the requirements of an increasingly global market for goods and services, information and ideas. 1915 was also the year in which Albert Einstein wrote the field equations for his general theory of relativity which, together with the theory of special relativity enunciated ten years earlier, changed not only our understanding of reality but created a theoretical framework for the development of new technologies of great promise and great danger. Less heralded than Einstein, H C Emery, a London solicitor, founded the Institute of Arbitrators on 1 March 1915. He brought together a multidisciplinary group, a consulting engineer, Lord Headley as the first President, six architects, two quantity surveyors, two surveyors, a civil engineer, a mechanical and electrical engineer and an accountant, who formed the first council. The principal aim of the Institute was to 'raise the status of a professional arbitrator to a

distinct and recognised position among the learned professions' by means of the 'study of the law and practice of arbitration'. Arbitration as a means of dispute resolution was well established and had a long history at that time. Sixty six years earlier, Francis Russell, had published a Treatise on the Power and Duty of an Arbitrator and the Law of Submissions and Awards which evolved into Russell on Arbitration, now in its 24th edition. Other texts had been published in the later part of the 19th century. Nevertheless, according to one chronicler of the Institute's first century, Julio Betancourt: Although the utility of arbitration had long been recognised and, to some degree well documented — particularly in England — everything seems to suggest that, before 1915, there was almost a complete absence of systematic study of this discipline, not only in England but also in the United States. Nor was there any serious endeavour to train arbitrators or practitioners in the field. The legal establishment did not trust the process, perhaps seeing it as a threat to its representational monopolies and those of the courts in dispute resolution. Chief Justice Sundaresh Menon of Singapore, in a speech given at the Institute's centenary conference in Singapore in September, quoted a letter to the Times published in August 1892 — the author was anonymous, but suspected of being a judge — in which the practice of arbitration was described thus: the hazardous and mysterious chances of arbitration, in which some arbitrator, who knows as much about the law as he does about theology – – decides intricate questions of law and

The CIArb Australia News December 2015

fact by applying 'a rough and ready moral consciousness'.

legal system and readily enforced by the laws of that system.

The reputation of arbitration as a dispute resolution process in Australia in the late 19th century was probably not enhanced by the experience of our first Prime Minister, Edmond Barton, also a founding member of the High Court. In 1896 when a Queen's Counsel and a member of the New South Wales Parliament, he agreed to appointment as an arbitrator in a railway line construction dispute which was estimated to last six months. Two years, 55 banks and cuttings, and 70 bridges and box drains later when the arbitration wound up, he found he had to answer allegations by his political opponents that he had deliberately lengthened the hearing.

The century since the founding of the Institute has seen what Betancourt has called 'the adaptation, modernisation and internationalisation' of arbitration. That internationalisation can be tracked through the Geneva Protocol on Arbitration Clauses of 1923, the New York Convention of 1958, the Washington Convention of 1965, the UNCITRAL Arbitration Rules of 1976 and the UNCITRAL Model Law of 1985. Recent history has also give rise to what Betancourt has called the 'wide-spread institutionalisation of other dispute resolution mechanisms, alternative to judicial determination of disputes' — examples being the European Code of Conduct for Mediators and Directives within the European Union covering mediation, alternative dispute resolution and online dispute resolution. The Institute has responded to those developments by extending its programs to cover all forms of consensual non judicial dispute resolution.

The Chartered Institute was founded to address concerns about the quality of the arbitral process and the standards of competency of those participating in it. Its history since its foundation has been well documented and a comprehensive account with thoughtful reflections about its future — almost a kind of strategic concept plan — appears in the centennial lecture 'Looking Back — Moving Forward' given by Professor Doug Jones in May this year. It is not necessary to retrace that history in any detail but it may be appropriate to offer some observations about the place of arbitration today and its future. It is a mechanism applicable to a hugely diverse class of matters — encompassing all manner of disputes from consumer transactions to land use questions, construction contracts, resource development and exploitation, and major financial dealings. All of these matters may be the subject of arbitration within a single national

The relationship between arbitration and the courts has shifted significantly over the last century. Writing on that topic for the Institute of Arbitrators in 1992, I observed that in times not so far past, the arbitrator was seen in some circles as a dubious below stairs figure providing a second rate system of backyard justice and requiring close curial supervision. Before 1979 in England and 1984 in Australia, the arbitrator was subject to frequent judicial lashings and had only to stumble, however innocently, to be branded with the stigma of a very broadly defined concept of 'misconduct'. Typically lapsing into extravagant metaphor,

support. The tremendous judicial support that arbitration presently enjoys is evidenced by the presence this evening of no less than four chief justices of our superior courts, as well as many other distinguished judges.” The event, which marked the 100th anniversary of the CIArb, was attended by a number of high-profile members of the judiciary, including Chief Justice James Allsop AO of the Federal Court, Chief Justice Tom Bathurst of the NSW Supreme Court, Justice Margaret Beazley of the Court of Appeal, Chief Justice Wayne Martin of the Western Australian Supreme Court. Members of government were also present, including Justice Gleeson SC and Ian Govey AM.

ARBITRARY AND DELICIOUS Richard Ackland The Saturday Paper 28 November 2015 There was Gadfly on Tuesday night at a huge banquet held at Sydney’s Museum of Contemporary Art in honour of the centenary of the Chartered Institute of Arbitrators. There were lawyers and judges by the mile. If the jihadists had bombed the place the justice and arbitral system of the nation would have ground to a halt. High Court CJ Robert French gave the after-dinner address before dinner, and, as it was remarked, it was refreshing to have a senior judicial officer give a dinner speech without being attended by applications for recusal on grounds of apprehended bias. ABC chairman Spiggsy Spigelman was on my table with his author wife, Alice. Stoically, he resisted my blandishments for the name of Aunty’s new managing director. I was so close that with a few more glasses of Châteauneuf-du-Pape I’m sure I would have clinched it. These events are never entirely comfortable for Gadfly. A good third of the room would have been aggrieved by some journalistic slight or insult over the years, so amid the merriment I got plenty of the evil-eye treatment. One lawyer did tell me that during the Abbott era the custom in the senior ranks of the profession, among those anxious for a federal court appointment, was to wear blue ties as frequently as possible, in the hope of being favourably noticed.

31 The CIArb Australia News December 2015

BIG WIGS BUSINESS PULSE OF THE NATION Teresa Ooi The Australian 19 December 2015 It’s not often that the country’s top judges would gather to have their own blacktie knees-up. But when the Centenary of the Chartered Institute of Arbitrators (CIArb) held its gala dinner, there was no shortage of homegrown and international bigwigs. Chief Justice of Australia Robert French delivered the keynote address, “Old but Not Obsolete”, before a capacity room. Guests included ABC Chairman James Spigelman, Chief Justice of WA Wayne Martin, Chief Judge of Equity NSW Supreme Court Patricia Bergin, DTI MD Charlotte Pache, QC Albert Monichino, QC Hilary Heilbron, former judge Valerie French and CIArb Vice President Caroline Kenny.

INAUGURAL CIARB MOOT A SUCCESS Lara Bullock Lawyers Weekly 18 December 2015 The Chartered Institute of Arbitrators (CIArb) held a national moot competition to mark the commencement of Sydney Arbitration Week, with Team Victoria emerging as the winners. The CIArb Centenary International Arbitration Moot was open to penultimate and final year university students, law graduates and young lawyers, giving them a unique opportunity to exercise and improve their advocacy skills by participating in an international commercial arbitration hearing. CIArb Australia president, Albert Monichino QC, launched the initiative as part of the CIArb Centenary Celebrations Australia. Mooters argued on whether a delivery of olives from Greece to Australia was fit for purpose pursuant to the United Nations Convention on Contracts For the International Sale of Goods (1980). Following two preliminary rounds held in their respective states/territories, the top four teams progressed through to the semi- and grand finals. Teams from Victoria and NSW fought to the finish before a panel of three judges. The winning Victorian team included Julia Wang and Christopher Lum from the Supreme Court of Victoria; Shane Dawson from Meridian Lawyers; and Suzanne Zhou from the Victorian Department of Education and Training.

I observed that after the Arbitration Act 1979 in England and the Uniform Commercial Arbitration Acts introduced into the Australian States in 1984 and 1985, the arbitrator had cast off the shackles of the stated case and rubbed off the tarnish of error on the face of the record. I noted also that Justice Foster in QH Tours Ltd v Ship Design and Management (Aust) held that an arbitrator could declare void ab initio the contract containing the very arbitration clause from which he or she derived authority. This ability to remove the premise of his or her own appointment in my view put the arbitrator into the same league as Arnold Schwarzenegger in the first Terminator film. Sent back in time by robots warring with humanity to eliminate the mother of the leader of the human resistance before she could give birth, his task was to eliminate the premise upon which he was sent. I remember trying to explain the logical difficulties of the plot to my children at the time but they dismissed it with the same facility as did Foster J in QH Tours Ltd. More recently, in upholding the validity of the provisions for the enforcement of arbitrations under Part 3 of the International Arbitration Act 1974, the High Court has drawn important distinctions between the exercise of judicial power and the exercise of the arbitral function. The latter converts existing rights and duties, the subject of dispute, into enforceable rights and duties flowing from the award. The Court emphasised the consensual foundation of arbitration. Four of the Justices in a joint judgment quoted what the Court had said in the CFMEU case in 2001 that judicial power is a power exercised independently of the consent

of the person against whom the proceedings are brought and results in a judgment binding of its own force. An arbitrator's powers on the other hand depend on the agreement of the parties and the award is not binding of its own force. Its effect depends on the law which operates with respect to it. Another important distinction between arbitration and the judicial process was made by the former Commonwealth AttorneyGeneral Robert McClelland, when introducing amendments to the International Arbitration Act in 2010. He said: Arbitrators need to stop thinking about themselves as common law judges without robes and start thinking of themselves as service providers. Similarly, courts need to respect this essential aspect of arbitration. Despite those distinctions, arbitration and alternative dispute resolution processes do not inhabit a private law silo. They impact on the public interest in a variety of ways. Fair and efficient dispute resolution based on an accurate appreciation of the factual and legal issues can reduce transaction costs and delays associated with commercial activity and, to that extent, benefit the public interest. Some arbitrations at the national and international level, although conducted between private parties, may have significant wider public interest impacts. To take a simple example, a licensing dispute in relation to intellectual property may have implications for the price of goods or services supplied to consumers. Arbitration provisions inserted into consumer transactions between large scale service providers and a large number of small consumers which preclude access to the courts, where disputes arise, may attract

The CIArb Australia News December 2015

questions about whether they are truly consensual in character and the balance of advantage and disadvantage which they create between provider and consumer. Public policy is never far away from such situations. The Institute is no doubt well aware that it operates in a field in which public policy concerns can lead to statutory interventions from time to time. While arbitration has taken a very prominent place in global markets for goods and services, it should never be forgotten that 'all politics is local'. The Institute's accumulated experience in the 100 years of its existence would suggest that it is attuned to the various political, social and cultural environments in which arbitration and alternative dispute resolution must operate. There is a prophecy in the Acts of the Apostles 'your young men will see visions and your old men will dream dreams'. There are in some writings about arbitration visions or dreams of a kind of transcendent autonomous future. Transcendence is a popular theme in some science fiction writing — it usually involves a sufficiently advanced intelligent species holding hands metaphorically and ascending to a higher plane of existence, shaking off earthly fetters. It is a future for the human race suggested in the writings of the Jesuit philosopher, Teilhard de Chardin, in the 1950s. Some writings about the future of arbitration imagine a state in which it transcends domestic and international legal regimes and operates within an entirely autonomous body of law. Sceptics of these Utopian dreams dismiss them as resting upon some kind of ideological distinction between the private and public sphere which is not tenable.

Much as I enjoy science fiction, I am with the earth bound. It seems to me that the future of arbitration is inextricably bound up with national and international legal regimes. Of course, another centenary may prove me quite wrong. Even without the promise of transcendence, the Institute has much to look forward to in serving not only the interests of its many members, but through them the greater public interest. Once again, I congratulate it upon its centenary. I will not be around for the next, but it is likely to be interesting.

The runners up from NSW included Harry Stratton and William Hanna from the University of Sydney, and Ashna Taneja from the University of NSW. Secretary General of the ICC International Court of Arbitration in Paris, Andrea Carlevaris, chaired the judging panel. “The problem was extremely well prepared. I was impressed by the advocacy skills of the finalists, comparable to that of real life international arbitration hearings,” Mr Carlevaris said. HSF partner Bronwyn Lincoln, who also sat on the judging panel, said, “The speakers were excellent – the debate we had with each of the team members demonstrated their knowledge and interest in this area of the law.” CIArb Australia president Albert Monichino QC, who rounded out the judging team, said, “CIArb Australia continues to support young legal talent throughout its sponsorship of moots in Australia and overseas. This moot cemented its place as a progressive and high quality competition and provided teams the invaluable experience of appearing in front of national and international arbitrators.”

MAJOR ARBITRATION AWARD WINNER ANNOUNCED Samantha Woodhill Australasian Lawyer 16 December 2015 Former University of Adelaide student Jerome Squires has become this year’s winner of a prestigious essay prize. As part of the Chartered Institute of Arbitrators commitment to global scholarship, students and lawyers of less than 5 years standing were invited to write an essay on whether or not international commercial courts represent a real challenge to international arbitration. “This topic was prompted by the recent launch of a few international commercial courts including, most recently, the Singapore International Commercial Court in January this year,” Squires told Australasian Lawyer. “My law degree briefly canvassed arbitration as a form of alternative dispute resolution but did not cover it in depth. “I entered the competition in order to learn more about international arbitration and to gain an understanding of changes occurring in the broader field of international dispute resolution.” Squires said that given the prominence of arbitration as the preferred method to settling transnational commercial disputes, he found it surprising that the

33 The CIArb Australia News December 2015

Damian Sturzaker, CIArb Vice President and head of the judging panel with winner of the CIArb Australia Essay Competition, Jerome Squires.

Do International Commercial Courts Represent a Challenge to International Arbitration? Jerome Squires Research Assistant University of Adelaide View Profile INTRODUCTION

n 5 January 2015, Singapore launched the Singapore International Commercial Court (‘SICC’),1 the latest international commercial court to open in recent years. Its premise is to ‘enable Singapore to enhance its status as a leading forum for legal services and commercial dispute resolution’. 2 It follows the 2006 launch of the Dubai International Financial Centre Courts (‘DIFC Courts’) 3 and the 2010 launch of the Civil and Commercial Court of the Qatar Financial Centre (‘Qatar International Court’ or ‘QIC’), 4 which have broadly similar

aims for Dubai and Qatar respectively. The emergence of these international commercial courts has prompted a few jurists to consider whether such courts represent a challenge to international (commercial) arbitration. 5 This essay considers the same question from two perspectives, which it will term the ‘internal’ and ‘external’. The internal perspective considers the comparative advantages and disadvantages of international commercial courts, national courts and international arbitration. If international commercial courts minimise or eliminate some of the

disadvantages associated with national courts, and adopt some of the advantageous attributes of international arbitration, they will offer a service that will, in many cases, compete favourably with international arbitration. Hence they will represent a real challenge to international arbitration. In contrast, the external perspective looks to the effects of establishing an international commercial court on a city and country’s international competitiveness as a dispute resolution hub. If the establishment of an international commercial court contributes to creating a dispute resolution cluster,

The CIArb Australia News December 2015

competition and cooperation will result in positive effects on both the court and arbitral institutions, and the city will attract more parties. International arbitration may have a smaller slice of the dispute resolution pie, but the pie itself will be bigger. Hence international commercial courts will not represent a real challenge to international arbitration. In considering these two perspectives, this essay will adopt a theoretical approach informed by empirical research. In Part Two it will, as a matter of theory, evaluate international arbitration, national courts and international commercial courts. In Part Three it will apply the economic theory of agglomeration (or clusters) to the field of dispute resolution. Both parts, however, will be informed by empirical research into the attitudes of users of international arbitration and the courts, namely the 2013 and 2015 International Arbitration Surveys 6 and UK Ministry of Justice’s 2015 report.7 Part Three also includes a case study into London as a dispute resolution hub and considers the relationship between its

Commercial Court and its status as a seat for international arbitration. However, it is necessary to start with a definition of ‘international commercial court’. Unlike international arbitration, the term does not have settled meaning. There is no International Commercial Court created by multilateral treaty and equivalent to the International Criminal Court. The World Trade Organisation’s Dispute Settlement Body is not an international commercial court: it deals with disputes between nations on trade policy. Is a court an international commercial court if designated as such by the state that creates it? Or does it depend on the demographics of its judges or parties? This essay will take ‘international commercial court’ to mean any court that routinely decides transnational commercial cases, regardless of whether it was established for this purpose. Hence, under this definition, the English Commercial Court is an international commercial court: between April 2014 and March 2015 63 per cent of its litigants were foreign nationals. 8 Read more

SICC, Establishment of the SICC (5 January 2015) http://www.sicc.gov.sg/About. aspx?id=21

Singapore International Commercial Court Committee, ‘Report of the Singapore International Court Committee’ (Report, November 2013) 12.

DIFC Courts, About the courts http://difccourts.ae/about-the-courts/

Qatar International Court and Dispute Resolution Centre, Legal framework for a world class international financial centre http://www.qicdrc.com.qa/

See, eg, Michael Hwang, ‘Commercial courts and international arbitration—competitors or partners?’ (2015) 31 Arbitration International 193; Chief Justice James Allsop, ‘International Commercial Arbitration – the Courts and the Rule of Law in the Asia Pacific Region’ (Speech delivered at the Annual Global Arbitration Review, Sydney, 11 November 2014) http://www.fedcourt.gov.au/publications/judges-speeches/chief-justice-allsop/allsopcj-20141111

PwC & Queen Mary University of London, International Arbitration Survey 2013: Corporate choices in International Arbitration (2013) <http://www.pwc.com/arbitrationstudy> (‘2013 International Arbitration Survey’); White & Case and Queen Mary University of London, International Arbitration Survey 2015: Improvements and Innovations in International Arbitration (October 2015) http://www.arbitration.qmul.ac.uk/research/2015/ (‘2015 International Arbitration Survey’).

Eva Lein et al, ‘Factors Influencing International Litigants’ Decisions to Bring Commercial Claims to the London Based Courts’ (Report in Analytical Series, Ministry of Justice, 2015).

Idil Oyman, Who Uses The Commercial Court? (20 July 2015) Portland Communications http://www.portland-communications.com/publications/who-uses-the-commercialcourt-2015-2/

topic isn’t a bigger focus for students. And given that Australia is aiming to position itself as a major international arbitration centre, he said considering whether the creation of a national or international commercial court would be beneficial is worth considering. “I feel very proud to have won the award,” Squires said. “My paper was praised in front of five chief justices at CIArb Australia’s Centenary Celebrations Black Tie Gala Dinner, I doubt this will ever happen again with something I’ve written.” Damian Sturzaker, head of the judging panel and CIArb Australia vice president said Squires’ application of economic theory of agglomeration to dispute resolution in his essay, was what caught the judges’ eye. “He examined the rising fortunes and caseloads of both the London Commercial Court and the London Court of International Arbitration,” Sturzaker said of the winning paper. “[He] concluded that by creating a dispute resolution cluster there is evidence that the caseloads for both litigation and arbitration will increase.” The paper will be published in the CIArb journal, The CIArb Australia News, Squires also received $1000 in prize money. “I am very grateful to the Chartered Institute of Arbitrators Australia (‘CIArb Australia’) for organising and promoting the competition, thereby giving students and young lawyers the opportunity to think and write about arbitration.” For more media click here.

35 The CIArb Australia News December 2015

CIArb Centenary Celebrations: Black Tie Gala Dinner Highlights Video Click to view

The CIArb Australia News December 2015

THE CIARB AUSTRALIA BOARD EXTENDS ITS WARMEST THANKS TO MEMBERS OF GOVERNMENT, INDUSTRY, JUDICIARY, BUSINESS, MEDIA AND GLOBAL LEADERS OF INTERNATIONAL DISPUTE RESOLUTION FOR THEIR SUPPORT AND PARTICIPATION IN THE CIARB CENTENARY CELEBRATIONS AUSTRALIA BLACK TIE GALA DINNER. SPECIAL THANKS TO OUR SPONSORS SOME OF WHOM ARE PICTURED LEFT TO RIGHT: AMANDA DAVIDSON OAM (HOLMAN FENWICK WILLAN); SHEENA NATHWANI (WOLTERS KLUWER); RICHARD ACKLAND, MASTER OF CEREMONIES; OWAIN STONE (KORDAMENTHA); THE HON ROBERT FRENCH AC, CHIEF JUSTICE OF AUSTRALIA; CHARLOTTE PACHE (DTI GLOBAL); ALBERT MONICHINO QC, CIARB AUSTRALIA PRESIDENT; JOHN WAKEFIELD (HOLMAN WEBB LAWYERS); ROBERT NEWLINDS SC (BANCO CHAMBERS); ALEX BAYKITCH (KING & WOOD MALLESONS) AND KHORY MCCORMICK (MINTER ELLISON). ARTWORK: IMANTS TILLERS, PURE BEAUTY 1991-97, MCA FOYER

A Special Thank You to Our Sponsors for their Generous Support

37 The CIArb Australia News December 2015

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STEPHANIE HUNT JUNIOR ARBITRATION LAWYER MELBOURNE

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Emergency Arbitration under ICC Rules â&#x20AC;&#x201C; A Mock Case and Enforcement of Foreign Awards in China When: 25 November 2015 Where: Allens Linklaters, Sydney Photos: Rick Stevens

n Wednesday 25 November academics, arbitrators, in-house counsel and legal practitioners assembled on Level 28 of Deutsche Bank Place where Allens holds its conference rooms with spectacular views and art work. The sponsors, Allens and the ICC and CIArb Australia, welcomed us warmly upon registration. The schedule for the day included the Emergency Arbitration Mock Case under the ICC Rules, followed by a discussion on the Enforcement of Foreign Awards in China, led by Dr Fan Yang (Professor of Law, City University of Hong Kong) who recently published her book on this topic with special comments from Dr Michael Hwang SC (Principal, Michael Hwang Chambers), a leading international arbitrator and Chief Justice of the Dubai International Financial Centre Courts.

The day started at 11:30 am with a discussion of Art 29 and Appendix V of the ICC 2012 Rules of Arbitration, which allow parties recourse to an emergency arbitrator to decide whether or not to grant an urgent conservatory or interim measures. Held during Sydney Arbitration Week, this seminar provided a practical analysis of the distinctive characteristics of this emergency arbitration through the study of a mock case with Albert Monichino QC, CIArb Australia President as moderator. The panellists of the event included: Andrea Carlevaris, Secretary General, ICC International Court of Arbitration, Paris, David Kreider, Alternate Member, ICC International Court of Arbitration; Independent International Arbitrator, Auckland, Bronwyn Lincoln, Partner, Herbert Smith Freehills, Melbourne and Jim Morrison, Consultant,

Morrison Law; Consultant, Allens Linklaters, Sydney. Helpful comments were made by Secretary General of the ICC, Andrea Carlevaris and Sylvia Tee (Regional Director, ICC, Singapore) who also issued the welcoming remarks on the use of and logistics of the emergency arbitrator procedure. As an introduction to the mock scenario, there was also useful discussion about the partiesâ&#x20AC;&#x2122; preparation for the application for an emergency arbitrator including the documents to be filed, payment, and supporting materials. The mock scenario exposed many questions, including the appropriate test to be applied by an emergency arbitrator in determining an application for interim relief. There were questions to the floor as to the extent to which arbitrators should have regard to the test in the 2006 Model Law, namely Article 17A which provides that a party requesting

41 The CIArb Australia News December 2015

interim relief must satisfy the tribunal that it will suffer harm not adequately reparable by an award of damages and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is sought; and where there is a reasonable possibility that the requesting party will succeed on the merits. The mock arbitrator, David Kreider, relayed some valuable comments at the conclusion of the mock scenario. The discussion included about whether time ought to be given to the other party to file further evidence or submissions dealing with new evidence where new facts emerge at a hearing for interim measures,. Finally, there was a closing speech by Andrea Martignoni, Partner, Allens Linklaters, Sydney followed by a networking lunch. At 2 pm, we commenced the session on the Enforcement of Foreign Awards in China, a CIArb Australia seminar sponsored by Allens, with Albert Monichino QC opening a bottle of champagne to celebrate Dr Yang’s newly released book Foreign Related Arbitration in China- Commentary and Cases Cambridge University Press (2 Vol Hardback Set). Dr Yang enlivened the room with her presentation on the recognition and enforcement proceedings in the Mainland Chinese courts relating to the infamous Castel v TCL

arbitration in order to explain and illustrate the implementation of the New York Convention in the People’s Republic of China (PRC). She identified deficiencies in the Report System; in particular, namely the lack of transparency in the process. She argued that the Supreme People’s Court (SPC) in the Castel v TCL case adopted an approach that was consistent with the New York Convention. Notwithstanding a pre-emptive strike in the Chinese courts by TCL to obtain a declaration that the arbitration agreement was invalid, the SPC overturned the earlier decision to this effect by the intermediate people’s court, thus paving the way for Castel’s application to enforce the award made against TCL in Australia.. Nevertheless, she stated that the deficiencies in the Chinese Report System as well as concerns about the timely execution of the SPC’s decisions in the lower courts remained to be addressed. Dr Michael Hwang of Singapore provided a commentary. He pointed out that one of the major problems with international arbitration in China has been Article 16 of the Chinese Arbitration Law, which has been interpreted to mean that, where the seat is China, only institutional arbitration under a recognised Chinese institution will be recognised by the Chinese courts. While some Chinese scholars dispute this

conventional interpretation, this interpretation has nevertheless inhibited the ICC and other international institutions from recommending arbitration under their rules if the seat is in China. Likewise, this interpretation has inhibited the use of ad hoc arbitration in China. Hence the current prescribed solution is to choose a favoured seat like Singapore or Hong Kong with the arbitration being administered by SIAC or HKIAC or even on an ad hoc basis. By way of response, Dr Yang proposed that foreign parties could enhance the enforceability of foreign arbitral awards in Mainland China by providing that the governing law of the arbitration agreement be a law that recognises ad hoc arbitrations or arbitrations conducted under a foreign institution. The events attracted a diverse group of practitioners and distinguished guests including: The Hon Wayne Martin AC (Chief Justice of WA) and David Bailey, Counsel and Michael Kwong, the CEO of Castel Electronics Castel Electronics was the successful party in the arbitration which was the subject of the seminar. All in all, it was a wonderful lineup of events and the day turned out to be extremely engaging and educational for all involved.

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Andrea Carlevaris, ICC, Paris (centre): â&#x20AC;&#x153;Emergency Arbitration under the 2012 ICC Rules responds to a real need of the users of ICC arbitrationâ&#x20AC;? with Albert Monichino QC, Jim Morrison (Consultant, Allens, Sydney), David Kreider (Independent International Arbitrator, Auckland) and Bronwyn Lincoln (Herbert Smith Freehills, Melbourne).

1. Andrea Carlevaris, Andrea Martignoni (Allens, Sydney), Andrew Jeffries (Independent Arbitrator, Sydney) and Simon Davis (Francis Burt Chambers, Perth) 2. Sylvia Tee (ICC Arbitration & ADR, Asia, Singapore) 3. The Hon Chief Justice Wayne Martin AC (WA Supreme Court) and Deborah Tomkinson (ACICA) 4. Dr Fan Yang, David Bailey (Vic Bar) and Michael Kwong (Castel Electronics, Melbourne)

43 The CIArb Australia News December 2015

Enforcement of Foreign Awards in China Seminar: Albert Monichino QC, Dr Michael Hwang SC (Michael Hwang Chambers, Singapore), Dr Fan Yang (City University of Hong Kong) and Andrea Martignoni (Allens, Sydney).

The CIArb Australia News December 2015

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Prof Chester Brown (University of Sydney), Prof Doug Jones AO, The Hon Chief Justice James Allsop AO (Federal Court of Australia), Hilary Heilbron QC (Brick Court Chambers, London) and John Rowland QC (Clayton Utz, Sydney).

The 14th International Arbitration Lecture: Hilary Heilbron QC When: Where:

25 November 2015 Federal Court of Australia, Sydney

he 2015 lecture: "Dynamics, Discretion and Diversity - A Recipe for Unpredictability in International Arbitration?â&#x20AC;? explored the extent to which unpredictability is inevitable in the process of international commercial arbitration; examined the causes of such unpredictability; enquired why this is a price parties are prepared to pay for a bespoke form of dispute resolution; and considered whether there are ways in which such unpredictability can be addressed or minimised. About the Speaker: Hilary Heibron QC

For the full lecture, including video and photos, please visit our dedicated Clayton Utz / University Of Sydney International Arbitration Lecture website click here. Click below

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SUSANNA KHOURI INVESTMENT MANAGER IMF BENTHAM, SYDNEY View Profile OLIVER GAYNER INVESTMENT MANAGER IMF BENTHAM, SYDNEY View Profile

Arbitration Funding in Hong Kong: The Winds of Change

n October 2015, the Law Reform Commission of Hong Kong published its consultation paper on third party funding for arbitration1. The Committee comprised Kim Rooney (Chair), Teresa Cheng SC, Justin D’Agostino, Victor Dawes SC, Jason Karas and Robert Pang SC. After consulting with the arbitration community, funders and other interested parties over a two year period, the Committee concluded: “We recommend that the Arbitration Ordinance should be amended to provide that Third Party Funding for arbitration taking place in Hong Kong is permitted under Hong Kong law

[...] clear ethical and financial standards for Third Party Funders providing Third Party Funding to parties to arbitrations taking place in Hong Kong should be developed”. The Committee’s conclusion was based upon a detailed analysis of litigation funding in various jurisdictions (including Australia), arbitration funding in other jurisdictions and upon an analysis of the benefits and risks of third party funding for arbitration. The Committee expressed the view that the benefits of third party funding for arbitration clearly outweighed the risks. The Committee’s recommendation will be

welcomed by commercial parties who are concerned by the cost of participating in the arbitral process, and, if implemented, will undoubtedly help to increase the attractiveness of Hong Kong as an arbitral seat. These issues were clearly front of mind for the Committee, who considered equivalent regulatory regimes around the world and concluded that since all but one (Singapore) permitted arbitration funding, reform was necessary “to avoid Hong Kong being overtaken by its competitors”. There will now be a further consultation period regarding the form which “ethical and financial standards” should take. In so doing, Hong Kong

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47 The CIArb Australia News December 2015

has an opportunity to break new ground and become the first jurisdiction to introduce a code specifically to regulate the practice of arbitration funding. There is likely to be extensive and vigorous debate regarding the form which such regulation should take: in this article we take a look at some of the key issues which will likely frame that debate, and offer some pragmatic solutions. Statutory or voluntary regulation? At the heart of the question is whether to give powers to a statutory regulator, or allow the industry to self-regulate using a voluntary code of conduct (a model adopted in the United Kingdom to regulate litigation funders). There are pros and cons to each approach, but a good starting point is to identify whether regulation is required to address concerns that have been expressed by some commentators that third party funding may cause prejudice to the integrity of the judicial or arbitral process.

In regard to funded litigation, Courts in Australia and England have expressed the view that the modern civil justice system is robust enough to guard against the risks to the integrity of

the litigation process which funding arrangements might pose. Instances of abuse are rare. Arbitral tribunals may similarly use their powers over the parties and the arbitral process to guard against any risks which third party funding may pose. The ability of an arbitral tribunal to protect the integrity of its own process points in favour of a light touch regulatory regime, such as a voluntary code (the “Code”) and which can be enforced by the tribunal (or court) hearing the matter for example through costs awards, as considered further below. Certainly this approach would sit more easily with the consensual and flexible nature of arbitration, though some mechanism (such as the proposal for a deed, discussed further below) will need to be found to allow the funder to submit to the tribunal’s jurisdiction and be bound by orders which the tribunal may make. Disclosure of funding arrangements? One important issue for the Code to address is the question many tribunals are faced with at an interlocutory stage: should respondents be entitled to disclosure of the claimant’s funding arrangements? Generally such applications for disclosure fail, as they do in national court litigation, on the grounds that the claimant’s funding arrangements are: (a) a satellite issue which bear no relevance to the substantive issues in dispute; and/or

(b) private and confidential: it is the claimant’s right to decide how to finance its operations, provided there is no prejudice to the integrity of the dispute resolution process. However, two points arise. First, disclosure to the arbitrators may be necessary in order to determine whether a potential conflict of interest arises. This issue can be dealt with by a provision equivalent to article 7(a) of the IBA Guidelines on Conflicts of Interest in International Arbitration, which requires disclosure to the tribunal, the other parties to the arbitration and the arbitral institution of any relationship between the arbitrator and a party or persons or entities with a “direct economic interest” in the outcome of the proceedings 2. Second, respondents may be entitled to know who is funding the claim against them in order to determine whether they are adequately protected for costs should the claim fail. It would save time and unnecessary satellite disputes if funders provided certain basic information to the respondent at an early stage of the arbitral process, such as the funder’s identity and place of incorporation. Respondents can then assess the joint financial strength of the plaintiff and funder before deciding whether it is appropriate to apply for security. This approach was recently endorsed by the authors of the 2015 ICC Commission Report on decisions on costs in international arbitration 3 . Liability for adverse costs? When asked to determine the issue of whether a third party funder should be liable to pay adverse costs to a successful defendant, the High Courts of Australia and England &

The CIArb Australia News December 2015

Wales have reached different conclusions. In Jeffrey and Katauskas (2009) 239 CLR 75, the Australian justices held that there is no general principle to this effect; conversely in Excalibur v Texas Keystone [2013] EWHC 2767, Lord Justice Christopher Clarke found the third party funders of “speculative, opportunistic and catastrophic litigation” liable to pay the defence costs on an indemnity basis according to the amount of funding provided and the period of time within which funding was made available. Again, there is a simple and pragmatic solution which the Code can encourage parties to follow. At the outset of a funded arbitration, the plaintiff and funder can execute a deed, countersigned by the respondent, pursuant to which the funder agrees to submit to the tribunal’s jurisdiction in relation to any award of costs (in respect of costs incurred during the term of the funding agreement ). The respondent will then have locus to enforce any costs award directly against the funder4 .

Since funders will generally agree to provide adverse costs indemnities for disputes they are funding (or

pay for adverse costs insurance), in practical terms this proposal would not increase a funder’s risk exposure. Nor is it likely that funders would routinely refuse to sign up to such deeds: if they do not underwrite the adverse costs risk, they are likely to have to put up security for costs, and if they do not put up security, the proceedings will be stayed and their investment may be lost.

There are numerous other points which could be incorporated into the Code, which are beyond the scope of this article. In our view, the above proposals are a good starting point and would help to support the integrity of the arbitral process – in particular by allowing the parties to avoid satellite disputes and focus on resolving the substantive issues in dispute. If that helps to mitigate delay and reduce costs of the arbitral process, then the Hong Kong Code will indeed be groundbreaking.

The Law Reform Commission of Hong Kong, Consultation Paper on Third Party Funding for Arbitration, October 2015 http://www.hkreform.gov.hk

IBA Guidelines on Conflicts of Interest in International Arbitration, Adopted by resolution of the IBA Council on Thursday 23 October 2014, http://www.ibanet.org/Document/Default.aspx?DocumentUid=e2fe5e72-eb14-4bba-b10d-d33dafee8918

See ICC Commission Report Decisions on Costs in International Arbitration, ICC Dispute Resolution Bulletin 2015 – Issue 2, page 17.

Funding arrangements may not always address the claimant’s adverse costs exposure. If the funding provided by the funder is more limited (for example, limited to the payment of the claimant’s disbursements), different consideration may arise.

49 The CIArb Australia News December 2015

DR STEPHEN LEE CIARB AUSTRALIA NATIONAL COUNCILLOR QLD STATE CONVENOR BARRISTER, BRISBANE

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Arbitration As A Means of Resolving Construction Disputes: Is It Still Fit For Purpose? When: 20 November 2015 Where: Law Society House, Brisbane Panel: Charles Brown, Global CIArb President; Khory McCormick, Partner, Minter Ellison and Stephen Lee, CIArb Australia Qld State Convenor Photos: Stuart Riley

n Friday 20 November, the Queensland Chapter, in conjunction with Minter Ellison, hosted a lunch-time seminar to mark the visit to Brisbane of Charles Brown, global President of the Chartered Institute of Arbitrators. He spoke on the highly engaging topic, “Arbitration As A Means of Resolving Construction Disputes: Is It Still Fit For Purpose?” His address surveyed current challenges confronting arbitration including time and cost and specialised Click below

commercial courts. He also identified respects in which international construction contracts could be improved. Ultimately, Charles’ message was a positive one: that arbitration was evolving to meet the challenges and that the whole ADR tool-kit was still fit for purpose. Khory McCormick commentated that all Charles' observations were timely and warranting of consideration. Khory noted the 10 Centenary Principles gave a guide of what makes seats quality seats. However, the 2015 Queen Mary survey meant

that Australia had a real but achievable challenge in attaining a greater standing against competing regional seats. He also directed attention to the comments of Singaporean AG Rajah SC at RAIF in Malaysia in April that hybrid ADR and international Courts constituted a real challenge to international commercial arbitration. Following Khory’s observations, there was a vibrant Q & A discussion among the delegates who included representatives from government, multinationals, law firms, barrister chambers and universities.

The CIArb Australia News December 2015

CIArb Australia National Councillor and Qld State Convenor, Stephen Lee with guest speaker Charles Brown (CIArb Global President) and fellow panellist, Khory McKormick (Minter Ellison, Brisbane).

51 The CIArb Australia News December 2015

Stephen Lee delivering the welcome address before a full house at the Queensland Law Society, Brisbane.

The CIArb Australia News December 2015

CHARLES BROWN CIARB GLOBAL PRESIDENT, LONDON

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Keynote Address

t is an honour and pleasure to present this paper to the Queensland Chapter of CIArb Australia and to do so as I near the end my year as the president of the Chartered Institute of Arbitrators in its centenary year. Before addressing the question – is Arbitration still fit for purpose for the resolution of construction disputes I should first set the scene in historical context. The CIArb centenary is an opportunity to reflect on the past and present but more importantly to consider where Arbitration and ADR generally is going in the future and the developing role of our members and branches and the global role of the CIArb. In 2015 we are celebrating a number of anniversaries. It is 245 years since Captain James Cook claimed the eastern half of Australia for Great Britain, 156 years since Queensland separated from NSW and 114 years since the 6 colonies formed the Commonwealth of Australia. Further afield it is 200 years since Napoleon was defeated at the battle of Waterloo, although the Civil Law he gave to much of Europe and which spread out to many parts of the world, continues to

offer an important alternative to the Common law, which his victors, the British have exported. In parts of the world today we see the best of both traditions being fused to develop effective modern methods for the resolution of international commercial disputes. Finally we are celebrating 800 years since Magna Carta, arguably the first written definition of the western concept, the Rule of Law. The CIArb was founded in the First World War and continued through the Second World War which itself ended 70 years ago. In 1915, two lawyers, two construction professionals and an accountant set out “to raise the status of arbitration to the dignity of a distinct and recognised position as one of the learned professions.” An indication of how far arbitration has come towards their aim was provided by Lord Neuberger, the President of the UK Supreme Court (and a great supporter of CIArb) who in his Keynote speech to the centenary conference in Hong Kong said, “It seems to me that arbitration is not simply compatible with the key features of the rule of law, but that it has an

increasingly important role to play in upholding those key features, both nationally and internationally. A number of factors are working together to elevate arbitrators to a quasijudicial status. Like judges, they have a duty to act judicially, and this very important duty is owed not only to the parties; it is also, I would suggest, owed to the public. The 13,000 members of the Institute uphold the vital standards of independence and competence in 120 countries, and give effect to contractual rights in accordance with substantive and procedural legal principle, thereby helping to ensure the rule of law.” In fact, in August this year we welcomed member number 14,000, and we have members in 133 countries, 37 branches and numerous chapters. So much for our success in the first 100 years, we also face important challenges which must be addressed. First the perception that where tax payer money is involved, dispute resolution cannot be left to a private process with little or no recourse to local courts. This perception is gaining traction in both the Atlantic and Pacific trading block treaty talks. Read more

53 The CIArb Australia News December 2015

MARTIN SCOTT QC CHAIR, VICTORIAN BAR INTERNATIONAL ARBITRATION COMMITTEE MELBOURNE

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In Conversation with Dr Michael Pryles AM PBM When: 17 November 2015 Where: Melbourne Commercial Arbitration and Mediation Centre Panel: Albert Monichino QC, CIArb Australia President; Martin Scott QC, Chair, Victorian Bar International Arbitration Committee and Bronwyn Lincoln, Partner, Herbert Smith Freehills (Chair of Panel) Photos: David Johns

ontinuing the successful, “In Conversation” series hosted by CIArb Australia and sponsored by the Victorian Bar, the CommBar and the Melbourne Commercial Arbitration and Mediation Centre, we were honoured to have Dr Michael Pryles AM speak on a wide range of issues before an audience of barristers, solicitors, inhouse counsel and other professionals involved in international arbitration. He spoke about the background to ACICA as a national arbitration body. He was involved from its earliest days following its establishment in Melbourne when it survived and prospered on domestic arbitrations. There was a considerable volume of work in building and construction and retail tenancies which provided a solid base for ACICA and arbitration generally. This was undermined by the establishment of tribunals and

ACICA migrated to Sydney. However, he said, it remains important that ACICA is seen as a national body. Dr Pryles spoke with great insight on how jurisdictions can succeed as arbitration venues and seats. His long and prominent time in Singapore commenced with a clear view that Singapore’s success depended on actively pursuing efficiency reforms, being open to international practitioners and attracting leading figures to the jurisdiction. The result was massive growth in the number and size of commercial arbitrations in Singapore. Singapore now benefits from its advantages of geography, stability, favourable tax regime and governance under the rule of law. Dr Pryles had considered views on the promotion of Australian arbitration and arbitration practitioners. In his view, Australia should position itself as an alternative to Singapore

where Singapore is unsuitable. Geographical disadvantages aside, Australia has many perceived advantages over other regional alternatives. Apart from the independence and quality of the courts, Australia has recognised strengths in particular areas of dispute such as mining and agriculture. Successfully promoting Australia ideally involves concentrating appropriate judicial expertise in dedicated lists or courts, investing in a continuous presence in Singapore as the regional hub so that the arbitration community based there is directly engaged and familiar with Australian practitioners, and developing a broader and deeper community of arbitrators across a range of seniorities.

The CIArb Australia News December 2015

In conversation: Albert Monichino QC, Bronwyn Lincoln (Herbert Smith Freehills, Melbourne) Dr Michael Pryles AM PBM and Martin Scott QC (Vic Bar).

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55 The CIArb Australia News December 2015

1. Julian Berenholtz (Allens, Melbourne) and Hugh Foxcroft QC (Vic Bar) 2. John Rundell (Stratica International, Melbourne) and Benjamin Hayward (Deakin Law School, Melbourne) 3. Ron Salter (Commercial and Maritime Arbitrator, Melbourne) and Donna Ross (Donna Ross Dispute Resolution, New York and Melbourne) 4. Sean McCaffrey (FTI Consulting, Melbourne) and Sheena Nathwani (Wolters Kluwer, London) 5. Dr Vicky Priskich (Vic Bar), Andrew Yuile (Vic Bar) and Dr Michael Pryles AM PBM 6. Raini Zambelli (Vic Bar) and Chris Young (Vic Bar)

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The CIArb Australia News December 2015

DONNA ROSS, MELBOURNE PRINCIPAL, DONNA ROSS DISPUTE RESOLUTION NEW YORK and MELBOURNE View Profile

The International Arbitration Landscape in the United States: Implications for Australian Practitioners When: 27 October 2015 Where: Melbourne Commercial Arbitration and Mediation Centre Photos: David Johns

n 27 October, CIArb Australia, in conjunction with ACICA, hosted a symposium entitled “The International Arbitration Landscape in the United States: Implications for Australian Practitioners”. The venue could not have been more appropriate, as the Melbourne Commercial Arbitration and Mediation Centre generously offered its arbitral hearing room for the event. The evening began with an introduction of the topic and speakers by Albert Monichino QC, CIArb Australia’s President. While I had the formidable task of describing international arbitration in such a vast and vastly diverse environment as is the US, Alan Anderson, from Alan Anderson Law Firm LLC in Minneapolis gave us insight into two important subjects

for international practitioners: Obtaining evidence in aid of international arbitration and the jurisdictional requirement for enforcing arbitral awards. The history of arbitration in the United States dates back almost a century. The Federal Arbitration Act (FAA), which governs both domestic and international arbitration, was enacted in 1925, whereas in Australia, the International Arbitration Act was adopted in 1974 and the CAAs in the 1980s. The FAA consists of three chapters. Chapter 2 implements the New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) and relates exclusively to international arbitration. Nonetheless, Chapter 1, which deals with domestic and maritime arbitration, contains general principles applicable

to all arbitrations and thus serves as a gap filler for areas not covered by Chapter 2. The third chapter implements the Panama Convention, to which the U.S. is a signatory along with a number of other international conventions (i.e., ICSID, NAFTA, the Energy Charter Treaty). Arbitral institutions in the U.S. include the ICC, ICDR (the international arm of the AAA) and ICSID. FINRA (the Financial Industry Regulatory Authority), little known abroad, administers some 2,000 cases per year. Each of the 50 states also has a domestic arbitration act based on the Uniform Arbitration Act, which is in turn based on the UNCITRAL Model Law. Some states have their own international arbitration statutes. The FAA differs significantly from the Model Law in that it is a fairly bare-boned piece of legislation. It is the Supreme Court that has

57 The CIArb Australia News December 2015

Australian and US Alliance: Alan Anderson (Alan Anderson Law Firm LLC, Minneapolis), Donna Ross and Albert Monichino QC.

formed the U.S.’s pro-arbitration policy through case law. Thus, international principles such as Kompetenz-Kompetenz and severability are enshrined in seminal cases such as First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) and Prima Paint Corp. v. Flood & Conklin Mtg. Co., 388 U.S. 395 (1967) and not by statute (such as Model Law Article 16(1)). During the Q&A session Albert Monichino asked why the U.S. had not adopted the Model Law. The general consensus is that adopting the Model Law at the federal level would undermine this quasi-centennial tradition of pro-arbitration jurisprudence. The interplay between state and federal law and courts can be complex. The FAA applies provided it is not contradictory to the New York Convention. Provisions of state law may also govern international arbitrations, but will be preempted if in conflict with the FAA. Although the FAA grants jurisdiction to the federal courts, where most international arbitration related matters are heard, it is not exclusive jurisdiction, since a party may also commence an

action in state court. Enforcing and setting aside arbitral awards, of particular interest to international practitioners, also has its particularities in the U.S. On the one hand, the strong presumption in favor of arbitration has narrowed the catchall public policy exception (Article V(2)(b) of the Convention), and especially the so-called additional ground of manifest disregard of the law. For instance, since Mitsubishi (Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 US 614 (1985), even antitrust disputes are arbitrable. And two pivotal cases, Stolt-Nielsen and Hall Street, have severely limited the use of manifest disregard of the law to ‘egregious impropriety on the part of the arbitrators’ further holding that it may not be used to expand the grounds for review. (See Stolt-Nielsen S.A. v. Animalfeeds Int’l Corp., 130 S. Ct. 1758 (2010) and Hall Street Assocs. LLC v. Mattel, Inc., 552 U.S. 576 (2008)). On the other hand, a trend in U.S. decisions has created a discrete hurdle to enforcement

that conflicts with the clear purpose of the FAA, which is to put arbitration on the “same footing as other contracts…”. (Dean Witter Reynolds Inc. v. Byrd, 470 US 213 (1985)). Although requiring personal jurisdiction for enforcement is not a valid ground under the New York Convention, some courts have been using the Due Process Clause of the Constitution to decline enforcement against an award debtor who has no contacts with, or assets in, the jurisdiction. When assets are present, quasi in rem jurisdiction over the property can generally be obtained. However, if neither basis for jurisdiction is present, this may thwart future enforcement given the FAA’s three-year limit to confirm an award. An animated, but cordial, discussion on the validity of this approach ensued, questioning the supremacy of the New York Convention, an international treaty, over the U.S. Constitution. And while the jurisdictional requirement may be an apparent hurdle to enforcement, it is noteworthy

The CIArb Australia News December 2015

that many of these cases involve state instrumentalities or alter ego theories in awards rendered by non-U.S. seated tribunals. Another important federal statute is Â§1782, (28 U.S.C. Â§ 1782), which enables parties and tribunals to obtain oral or written evidence from the other party or a third party in a forthcoming or existing international arbitration. Many countries have mandatory

laws or particularities in legislation of which practitioners must be aware. The U.S. is no exception. Statutory provisions, costs, confidentiality, waivers and discovery must be examined first and foremost when drafting the arbitration agreement. Incorporating institutional rules is one safeguard. A careful choice of seat, procedural and substantive law is imperative, as

is selecting the most appropriate court for enforcement before commencing proceedings. All in all, the event was well attended many of whom continued the lively discussion around drinks and canapĂŠs, demonstrating the interest of practitioners in Melbourne for international arbitration in general and in the United States in particular.

1. Donna Ross 2. Alan Anderson 3. Ian Stewart (Vic Bar), Margot Foster AM and Gregory Harris QC (Vic Bar) 4. Hugh Foxcroft QC (Vic Bar), Dr Donald Charrett (Melbourne TEC Chambers) and Prof John Sharkey AM 5. Owain Stone (KordaMentha, Melbourne), Albert Monichino QC and Donna Ross 6. Benjamin Hayward (Deakin Law School, Melbourne) and Rudi Cohrssen (Vic Bar)

59 The CIArb Australia News December 2015

Tony Abbott (Piper Alderman, Adelaide), Ian Nosworthy (Cowell Clarke, Adelaide), The Hon John Mansfield AM QC (Federal Court of Australia, Adelaide), Nicholas Floreani (Edmund Barton Chambers, Adelaide) and Andrew Robertson (Piper Alderman, Adelaide).

Adelaide Launch of CIArb Centenary When: Where: Guest Speaker: Photos:

17 September 2015 Piper Alderman, Adelaide The Hon Justice John Mansfield AM QC, Federal Court of Australia James Howe

he coexistence of courts and arbitration was the topic addressed by The Hon John Mansfield AM QC, Justice of the Federal Court of Australia, guest speaker at the South Australian Chapter’s CIArb Centenary Celebration. The event also provided an occasion for the guests to view the commemorative multimedia slideshow Swift and Diligent – A History of CIArb Australia 1995 – 2015. Our thanks to CIArb Fellow and SA Chapter Committee Member, Andrew Robertson, whose firm, Piper Alderman, hosted the event. His report on the event was published in Lawyers Weekly.

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The CIArb Australia News December 2015

COURTS AND ARBITRATION PEACEFULLY CO-EXIST

Andrew Robertson Lawyers Weekly 8 October 2015 The judiciary continues to show strong support for arbitration, with the two systems viewed as complementary, Andrew Robertson writes. Australia has made substantial progress in the area of international commercial arbitration since the 2010 reforms to the International Arbitration Act. Further legislation relating to reforms were introduced in the Australian Parliament through the Civil Law and Justice (Omnibus Amendments) Bill 2015 in the same week Federal Cour`t Justice John Mansfield AM QC delivered his address marking the Centenary of the Chartered Institute of Arbitrators hosted by Piper Alderman in Adelaide on 17 September. Addressing members and guests, his Honour reflected on arbitration in its various forms, innovation and dispute resolution. He also noted the symmetry between the 20th anniversary of the Australian branch of the Chartered Institute of Arbitrators and his 20 years as a judge of the Federal Court. Justice Mansfield went on to say that during that time there have been many changes at the Federal Court. These have included: docket management; case management; a focus on the identification of issues and judicial intervention; and a transition to electronic records.

1. The Hon John Mansfield AM QC 2. Andrew Robertson 3. Piper Alderman, Adelaide: Alison Crawford, Juniper Watson and James Nunn 4. Full house at Piper Alderman, Adelaide

Justice Mansfield noted that in part the most recent change â&#x20AC;&#x201C; the development of a national court framework which assigns matters to judges by area of practice â&#x20AC;&#x201C; allows for the allocation of matters to an available judicial officer with appropriate expertise, which has some similarity with the selection of arbitrators for their expertise. Read more

61 The CIArb Australia News December 2015

CIArb Australia Directors: James Healy (Francis Burt Chambers, Perth), Beth Cubitt (Clyde & Co, Perth) and Simon Davis (Francis Burt Chambers, Perth) with The Hon Chief Justice James Allsop AO (Federal Court of Australia).

Perth Launch of CIArb Centenary When: Where: Guest Speaker: Photos:

17 September 2015 Clyde & Co, Perth The Hon James Allsop AO, Chief Justice of the Federal Court of Australia Deanna Whyte

he Western Australian Chapter marked its CIArb Centenary Celebration with an evening seminar addressed by The Hon James Allsop AO, Chief Justice of the Federal Court of Australia, whose speech focussed on Australia's progress in its approach to arbitration. The event attracted senior arbitrators, judicial officers, academics, solicitors, barristers and other professionals from WA and interstate. Our thanks to CIArb Australia Councillor and WA Chapter State Convenor, Beth Cubitt, whose firm, Clyde & Co, hosted the event. Her report on the event was published in Lawyers Weekly.

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Strong under pressure

– The largest disputes practice of any “Market commentators praise the ‘big-ticket arbitration’ international law handled by the team, and the ‘efficient, courteous and firm in Singapore The Lawyer - Top 50 Global very skilful’ way in which it operates.” Arbitration Report 2013

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The CIArb Australia News December 2015

BRIGHT FUTURE FOR ARBITRATION

Beth Cubitt Lawyers Weekly 9 November 2015 Australia has made encouraging progress in its approach to arbitration, writes Beth Cubitt. Speaking at the Chartered Institute of Arbitrators Centenary event in Perth, Chief Justice James Allsop (pictured with Beth Cubitt) noted the encouraging progress in Australiaâ&#x20AC;&#x2122;s approach to arbitration, and the bright future for international arbitration in the region. In tune with the international focus of the Chartered Institute of Arbitrators (ClArb), Chief Justice Allsop commented on some of the important changes he has observed in international arbitration over the past two decades. On a broad level, his Honour noted the changes in the education of the judiciary, barristers, solicitors and arbitrators (in no small measure through courses run or facilitated by CIArb). His Honour observed that the increase in education has resulted in fewer outlier cases for a number of years in Australia, which could not be said for a decade or a decade and a half ago. Recent decisions in Australia in relation to maritime arbitration were noted as demonstrative of this. He also commented that the legal fraternity and also consumers of arbitration, have matured in their understanding of how arbitration works, and the deal that is involved in an agreement to arbitrate. 1. Gordon Smith (Independent Arbitrator, Perth), Nicholas Summers (Clifford Chance, Perth) and Isuru Devendra (Clifford Chance, Perth) 2. Clyde & Co, Perth: Carine Cruse and Jade Macukat 3. Bridget Chamberlain (Clyde & Co, Perth) and Chris Hicks (Herbert Smith Freehills, Perth) 4. Jenny Thornton (Clyde & Co, Perth) and Callum Davidson (Herbert Smith Frehills, Perth) 5. Auke (JJ) Steesma (Haydn Rigby Lawyers, Perth) and Ian Sampson (Sampson Investments Pty Ltd, Perth) 6. Elmi Carlean (Francis Burt Chambers, Perth)

His Honour made the point to a degree that sovereignty was given away by the negotiators of the New York Convention, and the resolution of international disputes subject to arbitration agreements was put in the hands of arbitrators, often foreigners. Central to this was the fairness of the process. His Honour said that the key to the success of international arbitration in the

63 The CIArb Australia News December 2015

Asia-Pacific region is through the support and encouragement of the process by local judiciaries. This should provide for a fair system that: •

is consistent with the arbitration agreement

•

facilitates a fair hearing with notice

•

incorporates the notion of public policy, including procedural fairness consistent with the fundamental norms of the state.

His Honour referred to a talk given by Sundaresh Menon, Chief Justice of Singapore where he stated that it is not for courts and arbitration bodies in the Asia-Pacific region separately to cope with dispute resolution over the next 25 years. Rather, there will need to be a sophisticated regional justice system in which courts and arbitration systems work together. His Honour predicted that, in the future, arbitration will take its place as the dominant workhorse of the justice system, supported by clusters of efficient courts in the region. This will in turn create a regional international legal culture: practitioners reading judgments from different jurisdictions, practitioners working in different jurisdictions, and cases moving through lawyers in different legal cultures. Chief Justice Allsop concluded by noting there is a will to develop a fundamental trust between commercial courts and arbitrators and arbitration institutions. Seat courts will play a dominant role through enforcement and interim support. Beth Cubitt is a Chartered Institute of Arbitrators fellow and Clyde & Co partner in Perth.

1. Glen Warwick (Clyde & Co, Perth) 2. Susan Belair (DTI Global, Sydney) and Prof Doug Hodgson (University of Notre Dame, Perth) 3. Chief Justice Allsop and Kate Lewins (Murdoch University, Perth) 4. Tom French (Clyde & Co, Perth) and The Hon Justice Sandy Street (Federal Court of Australia, Sydney) 5. Beth Cubitt 6. Chief Justice James Allsop AO

The CIArb Australia News December 2015

CAROLINE KENNY QC CIARB AUSTRALIA NATIONAL COUNCILLOR CHAIR, EDUCATION COMMITTEE CHAIR, CENTENARY COMMITTEE VIC STATE CONVENOR BARRISTER, OWEN DIXON CHAMBERS, MELBOURNE

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CIArb Australia CPD and Training Program 2016

reparations are currently underway for the 2016 CPD Program. I will be assisting the Federal Court of Australia in running a series of seminars on international arbitration. It is anticipated there will be four seminars in 2016 and 2017 on wide ranging issues of international arbitration. The seminars will be held in the Federal Court, Melbourne and broadcast around Australia. It is envisaged there will be a moderator and a panel of four or five eminent arbitrators. Australian and international arbitrators will participate in the series including: former High Court Judge of Australia, The Hon Susan Crennan AC;

Allan Myers AO QC; Justin Gleeson SC (Solicitor General of Australia); Neil Kaplan CBE QC SBS (Hong Kong), Prof Doug Jones AO, Karyl Nairn QC (Skadden Arps, London): Andrea Carlevaris, (ICC Court of Arbitration, Paris); Lord Peter Goldsmith PC QC (Debevoise & Plimpton, London) Prof Jeff Waincymyer (Monash Law School), Prof Richard Garnett (Melbourne Law School); Ian Govey AM (Australian Government Solicitor) as well as leading Australian barristers and solicitors who practice in the field. Due to the success in 2015, CIArb Australia will once again be conducting the Diploma in International Commercial

Arbitration; Accelerated Route to Fellowship; Award Writing, and Introduction to International Arbitration.

We are currently confirming venues and faculty. To register your Expressions of Interest please visit https:// www.ciarb.net. au/training/

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Part of Asia for 33 Years

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INTERNATIONAL

65 The CIArb Australia News December 2015

MEGHANN CLARK MELBOURNE View Profile

ANTHONY HADJIANTONIOU MELBOURNE View Profile

ANDREW MASTERS MELBOURNE View Profile

CIArb Australia Education Report: Award Writing and Accelerated Route Towards Fellowship 2015

IArb provides an array of impressively nuanced and practical educational courses for members of the legal, government and business communities that carry globally recognised qualifications. Whether you're new to ADR and want to find out more, or an experienced practitioner looking for career enhancing training, CIArb has a course and qualification for you. As Education Assistants for CIArb Australia, we have had some incredible experiences and opportunities relating to these courses. The most important of which has been the opportunity to immerse Click below

ourselves in an organisation that embraces and elevates the area of practice that we are now truly passionate about: international commercial arbitration. Each of us have developed our interests in the space through previous experiences: Meghann as a student through participation in mooting competitions such as the Hong Kong ADR Moot, formerly hosted by City University of Hong Kong, as well, as the Willem C Vis Moot (Vienna); Anthony through the Vis Commercial Arbitration Moot and FDI Moot in London and Andrew through his experience as a paralegal for CIArb Australiaâ&#x20AC;&#x2122;s President, Albert Monichino QC.

In our capacities as education assistants, we have the opportunity to engage with experienced practitioners, academics and government officials. We are also present for the spirited debates between candidates about topical or specialist areas of arbitration. Observing and listening to candidates and course directors dissect the nuts and bolts of the procedural elements of various national arbitration statutes and institutional arbitration rules provides a perspective we otherwise would need to wait a decade to acquire. In the space of just a few months in 2015, we have had valuable involvement with all course candidates in

The CIArb Australia News December 2015

providing administrative support for the Award Writing Course, Accelerated Route Towards Fellowship Course and the Award Writing Exam. The Award Writing Course This year’s Award Writing Course took place between August and December 2015. The course is designed to teach candidates about the fundamentals of drafting an enforceable international arbitration award which will not be subject to challenge. To this end an impressive range of stimulating and informative materials were provided for candidates including arbitration acts, rules and guidelines as well as practical articles on drafting. The course focused on two face-to-face tutorials held at the Australian Disputes Centre in Sydney and the Melbourne Commercial Arbitration and Mediation Centre which gave candidates intensive training in award writing through a mix of teaching and practical sessions. Albert Monichino QC conducted both tutorials with the assistance of Caroline Kenny QC, CIArb Australia Vice President and Chair, CIArb Australia Committee; John Wakefield, Chairman, Holman Webb Lawyers and Paul Hayes, Chair - Commercial Bar Association - International Law resulting in robust and learned discussions. Candidates were able to put their skills to the test in writing assessed two awards

– the first as a month-long assignment and the second in a 4 ½ hour written exam. This year’s candidates, who had first to have completed either the Diploma in International Commercial Arbitration or the Accelerated Route Towards Fellowship courses, comprised talented professionals and academics from across the Asia-Pacific region. The Accelerated Route Towards Fellowship Course The Accelerated Route Towards Fellowship Course is targeted at practicing lawyers with at least 10 years’ experience, that are learned in the area of Arbitration. Held at the Melbourne Commercial Arbitration and Mediation Centre from 7 – 8 November, this year’s the twoday program had limited places and attracted high quality candidates from all over country. It is therefore no surprise that much of the course was centred on robust discussion, with participants being assessed on the quality of discussion and insight they offered to the group. The course director, Albert Monichino QC along with tutors, Gordon Smith, Perthbased International Chartered Arbitrator and Caroline Kenny QC, skilfully fostered these interactive workshops providing the means to test candidates on the depth of their knowledge and understanding of all general and specialist areas covered by the

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course. It was truly humbling to see the diversity of experience in candidates, and to learn directly from their informed insights. From government officials, to barristers, to academics, to partners heading successful practice groups dealing with arbitration; there was no want for checks and balances amongst peers as to how international arbitration practically considers particular disputes and procedural mechanisms. It was inspiring to watch, and it was wonderful to meet and engage with these dedicated professionals. The Award Writing Exam As well as being the culmination of the Award Writing course, the Award Writing Exam held on 5 December provided an opportunity for candidates who had completed the Accelerated Route Towards Fellowship Course to qualify for CIArb fellowship. The exam was divided over two stages. The first stage, in the form of an assignment, provided a detailed factual scenario sufficient for candidates to prepare the recitals to, and the skeleton of, their award. The second stage, through a 4 ½ hour exam, allowed candidates to complete the writing of their award by studying oral and other evidence provided at a hearing. Having become familiar with the material being assessed, it was really fascinating to see how candidates addressed the key issues in their exam responses.

67 The CIArb Australia News December 2015

Award Writing Course

Andrew Masters, Nicholas Floreani (Edmund Barton Chambers, Adelaide), Kevin O’Connor AM (Tenth Floor Chambers, Sydney), Andrew Di Pasquale (Vic Bar), Dr John Hockley (Francis Burt Chambers, Perth), Albert Monichino QC, Dr Ozlem Susler (La Trobe University, Melbourne), Paul Hayes, Jane Jiang (Allen & Overy LLP, Beijing), Campbell Jaski (PPB Advisory, Melbourne), John Wakefield, Stephanie O’Connor (Moray & Agnew, Perth), Brian Millar (Francis Burt Chambers, Perth), Dr Vicky Priskich (Vic Bar), Tim Rickard (Selborne Chambers, Sydney), Rudi Cohrssen (Vic Bar) and Meghann Clark.

The CIArb Australia News December 2015

Accelerated Route to Fellowship

Michael Whitten SC (Vic Bar), Meghann Clark, Albert Monichino QC, Caroline Kenny QC, Angus Stewart SC (New Chambers, Sydney), Donald Robertson (Herbert Smith Freehills, Sydney), Leon Chung (Herbert Smith Freehills, Sydney), Justin Gleeson SC (Solicitor General of Australia, Canberra), Rajesh Sharma (RMIT University, Melbourne), Dr Pat Saraceni (Clifford Chance, Perth), Adam Bell SC (New Chambers, Sydney), Gordon Smith and Anthony Hadjiantoniou.

69 The CIArb Australia News December 2015

CAROL LAWSON TEAM AUSTRALIA COACH

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“Team Australia” Competes in the 2015 Tokyo Intercollegiate Negotiation Competition

n late November a team of ten Australian law students formed by the Australian Network for Japanese Law (ANJeL) travelled to Tokyo to participate in the 2015 Tokyo Intercollegiate Negotiation Competition, generously supported by CIArb Australia. Founded in 2002, this advocacy competition is distinctive: teams contain up to six students who must all demonstrate polished legal advocacy skills; teams may compete in either Japanese or English; and the arbitration and negotiation rounds are

each three full hours long. Add a complex 60-page problem involving several intricatelyintertwined commercial disputes to make a transformative experience that frequently inspires future careers in arbitration. Team Australia was comprised of eight members from the Australian National University and the University of Sydney, with two from the University of Melbourne and Monash University. Broader Asiacapability was another theme, with several students fluent

English Team: Dan Trevanion (ANU), Steve McCann (USYD), Camilla Pondel (ANU), Kieran Pender (Co-Captain: ANU), Stephen Ke (USYD)

and literate in Indonesia and Korean. Team Australia was matched against the highestranked competitors teams from 18 universities in Japan, Hong Kong, Singapore, in a fierce contest - held this year during Australian Semester II exams. Although finishing outside the places, both the Japanese and English teams were rewarded with high praise from the judging panels for the quality of their written submissions, teamwork, and advocacy skills.

Japanese Team: Tom Murphy (ANU), Shojeeb Alam (Monash), Lisa Jiang (USYD), Anna Renalson O’Kane (Co-Captain: USYD), Jeremy Latcham (UMLB)

The CIArb Australia News December 2015

JAMES HEALY CIARB NATIONAL COUNCILLOR MEMBERSHIP COMMITTEE CHAIR AND AUSTRALIAN REPRESENTATIVE OF CIARB YOUNG MEMBERS GROUP (WORLDWIDE) BARRISTER, FRANCIS BURT CHAMBERS, PERTH View Profile

CIArb Australia Membership Update

his year of celebrating the CIArb Centenary and the 20th anniversary of CIArb Australia has been an exciting time for the Institute. As a consequence, it is pleasing to note we continue to attract new

members from a wide variety of industries. They include: mine managers, litigation funders and logistics consultants. It has also been great to see professionals who have relocated to Australia becoming members of our branch and

sharing their experiences. CIArb has a number of different membership categories suitable for all professions. Visit https://www.ciarb.net.au/ join-ciarb/

Congratulations to the following who were recently accredited as Fellows Mr Tony McDonnell

Ms Donna Ross

VIC

Welcome to our new Members and Associates Miss Caroline Beaumaris

NSW

Mr Oliver Gayner

Mr Adam Bell SC

NSW

Mr Barry Green

Mr James Campbell

QLD

Ms Dominique HoganDoran

Mr Jeremy Chenoweth

QLD

Mr Mitchell Latham

Mr Hamish Clift

QLD

Mr John Lazenby

Mr Rudi Cohrssen

VIC

Mr Shaun McCaffrey

VIC

Mr Robert Forrester

VIC

Mr Tony McDonnell

NSW WA NSW

Mr Richard Morgan

QLD

Ms Lucy Munt

QLD

Mrs Debra Osborn

VIC

Mr Evatt Styles

NSW

Mr Philip Ware

QLD

Mr Thomas Warner

VIC

Welcome to our new Student Members Ms Lauren Absalom

Ms Meghann Clark

Mr Lachlan Huggins

Mr Martin Bartlett

Mr Timothy Driscoll

Mr Daniel Locke

Mr Nicholas Berry

Ms Courtney Flynn

Mr Lilit Nagapetyan

Ms Tracey Bryan

Ms Mayleah House

71 The CIArb Australia News December 2015

JAMES (JIM) CREER III FOUNDATION CHAIRMAN, CIARB AUSTRALIA BORN: 22 DECEMBER 1929 DIED: 8 DECEMBER 2015

Vale Jim Creer The CIArb Australia Board on behalf of members, friends and peers express deepest condolences on the passing of Jim Creer. The following is a eulogy delivered by his son, Jamie Creer at the private funeral held on 18 December.

ames Neill Creer the 3rd. Born 22 December, 1929 in the master bedroom of his parents' house in Lord Street, Roseville. Through life and friendships we accumulate an array of nicknames. Some adhering, many derogatory and funny but all come from a sense mateship. James was known as Jim to most, Dad to his children, Dad Dad to his grandchildren, Dood by our mother, Margaret and Banger by some of his more recalcitrant legal buddies. Why Banger…I think I was too afraid to ask. His father before him was James Neill the 2nd but known as Jerry. I am James Neill the 4th and my younger son Charlie was cross with me when I called him Charles James Neill rather than James Neill the 5th, but no doubt the name can be resurrected by the next generation should that desire still exist. Despite names, life is not about what you are called but moreover what you represent and how you live your life. I think most would agree Jim

was a gentleman. He insisted on good manners from us and lived a life of being respectful to others. As fathers go, Jim tried hard. He was pretty tough on us and from the old school. He believed strongly in discipline and sometimes had rules for the sake of a rule….when he insisted for example that I stay at the dinner table to finish corn beef and white sauce. That stand off lasted three hours and Dad won. Despite this, his care for us and love was more than obvious. Jim was from a single child upbringing during the war and his extended family was not large. Unlike other single child families Jim was not spoilt. Jerry and Vera, his parents, were tough on him but (Dad) Jim was a hard worker and team player. He had a great sense of fairness and deep down was actually very soft and compassionate. On many occasions, particularly in his twighlight years in the company of grandchildren when told of a sporting, or on the very rare occasion, an academic victory by one of them, it was not

uncommon to see the bottom lip trembling while holding back tears of pride. Jim was brought up on the North Shore of Sydney. Roseville, his main stomping ground, while attending Killara Prep and then Shore. He started at Shore in 1941. During the war years in the prep he loved telling the story of having to take cold showers during winters at Mount Victoria where they were evacuated to when bombings started in Sydney in 1942. “We were tough in those days” he’d say and to our amazement continued to have a one minute cold finale to every shower throughout his life. Jim was a pretty handy sportsman as well. He loved athletics and represented Shore as a sprinter in the GPS over his years and made it to State level. His distance was sprint 110 and 220 yards but extended it to 440 yards but as he said he made a great 380 yard sprinter. Athletics was passed on through the family genes and to most of the grandchildren. Read more

The CIArb Australia News December 2015

JOHN BERESFORD DORTER (JBD) CIARB FELLOW BORN: 22 NOVEMBER 1941 DIED: 23 DECEMBER 2015

Vale John Dorter The CIArb Australia Board on behalf of members, friends and peers express deepest condolences on the passing of CIArb Fellow, John Dorter. The following is a tribute by Ian Nosworthy (with thanks to Andrew Mansour, Allens).

BD passed away peacefully in the evening of Wednesday, 23 December 2015 after a battle with cancer. The reaction of our friend and colleague Geoff Walker reflects what most of us think: “I'm shocked and greatly saddened by this news ... I will miss John's towering presence.” Most of us (and Geoff, of course) go a couple of steps further. We miss his love, friendship and insightful wit as well as the twinkle in his eye and his sage input into just about any situation, whether in the middle of a major construction brawl, or a philosophical discussion over a glass of red about a topical matter. For the best part of four decades JBD was a towering presence leading the powerhouse construction team at Allens. JBD had an interesting background including membership of the armed services (1RNSWR(Cdo)) as

well as qualifications as a CPA. He joined Allens in 1962, became a partner in 1969, and was the driving force of their construction practice as a partner and later senior consultant until he retired in 2012. John was truly a leading expert in construction contracts and construction dispute resolution. He had numerous acknowledgements of his strengths in these areas, working as he did at both ends of the contract, from negotiation and advice on contracts, to claims and disputes in connection with distressed projects. He acted on disputes that were important test cases for the industry, for example disputes regarding replacement contractors on distressed projects, and the interpretation of major contracts. His work included matters as diverse as reviewing patrol boat contracts for Defence, advising on the contractual aspects of the design and construction for a replacement nuclear reactor, and internationally on ICC

and UNCITRAL arbitrations throughout Southeast Asia, as well as major litigation and arbitration throughout Australia. He was the Law Council of Australia’s representative on the OB/3construction contracts committee of the Standards Association of Australia, including its suite of construction contracts for many years. He was the co-author, with John Sharkey AM, of the leading texts Building and Construction Contracts in Australia – Law and Practice, and Commercial Arbitration in Australia – Law and Practice. Both were the bibles throughout Australia for practitioners in these areas. John was the General Editor of the Building and Construction Law Journal. A highlight of each part was a pithy pearl of wisdom by JBD at the start of the volume. He was a Past President of the Institute of Arbitrators and Mediators Australia and a Life Fellow of that body, as well as a Fellow of what he

73 The CIArb Australia News December 2015

John Dorter chairing the IAMA Fast Track Arbitration Day, Owen Dixon Chambers, Melbourne 2006. Sharkey & Dorter. Photos: Christopher Beck.

fondly called the Chartered chappies, this esteemed Institute. John was a director of the Australian Centre for International Commercial Arbitration and a former lecturer in Building Contracts and Evidence at the University of Sydney, and Arbitration at the University of New South Wales.

Adelaide. I had the pleasure of working with him and Tony Molino on that major litigation for several years.

I also had the privilege of leading JBD He was a pioneering teacher in substantial in the Institute of Arbitrator's General and Advanced matters in both Arbitration courses, frequently using alliteration to reinforce the the Federal Court message he was conveying. and the Northern I first got to know him in that setting, and we became friends Territory and colleagues for the best part of 40 years. Supreme Court. Needless to say He I was far more masterminded in awe of my the initial instructor than I handling of the was of the judge REMM Myer Centre dispute in or my opponent. He was a Senior Fellow of the University of Melbourne lecturing in the Master of Laws in Construction Law.

He was rightly called the doyen of Australian construction lawyers. Perhaps the height of the collegiality which John introduced to the ALG, as it was then, were the Australia wide Construction Roadshows of the early 90s. JBD led a group of us including Tom Yuncken from Melbourne, myself from Adelaide, Geoff Walker from Perth and Richard (Mr Justice) Refshauge from Canberra, John Buttner and John Cooper from Brisbane, with some assistance from JBD’s good friend Justice Andrew Rogers, in what was both great team building and great client service. As we returned from the Perth leg to the airport, the taxi driver said: “Yesterday's history, tomorrow's a mystery”. That, and the old staple, “All the better for hearing from you, my son”, both became permanent parts of our greeting exchanges. John was Di's soulmate, and a good friend and mentor to so many. Until we meet again...

The CIArb Australia News December 2015

CHRISTOPHER HOLT PUBLISHER AND CO-FOUDNER FEDERATION PRESS

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Commercial Arbitration (Sharkey & Dorter) Next year marks the 30th Anniversary of Commercial Arbitration (Sharkey & Dorter). Chris Holt, who suddenly passed away in 2014, was its Managing Editor at Law Book Co. After obtaining a law degree at Cambridge University in the 1960s, Chris worked for Butterworths (now Lexis Nexis) in London and Sydney before moving to the Law Book Co and subsequently co-founding Federation Press. The following article was commissioned in 2007 and for the first time is published. It is a great tribute to the special relationship between the editor and authors, albeit a poignant reminder of the passing of time.

he catalyst for the publication of Sharkey and Dorter on Commercial Arbitration was the enactment of uniform Commercial Arbitration Acts in New South Wales and Victoria in 1984 – but the story begins years earlier, in 1979, when John Dorter co-authored Arbitration (Commercial) in Australia with an academic called Gary Widmer. It was a relatively short book, enhanced by a foreword from Justice Leycester Meares, the doyen of the field. Moderately successful, it eventually went out of print after seven years with about three-quarters of the print run sold. John Dorter enjoyed the writing experience and looked around for a follow up. Building contracts was an obvious if ambitious place to start. This would inevitably be a much bigger book; it was also one Widmer, whose speciality was comparative law in Australia, the UK and the USA, was unqualified to write. John Dorter needed

a new co-author. John’s firm, Allen, Allen and Hemsley, was at the time a Sydney firm without interstate offices. In Melbourne it acted regularly with Weigall & Crowther and John Dorter had often worked with their construction law partner, John Sharkey. So was born one of the most successful partnerships in Australian legal literature. The two Johns put their proposal to The Law Book Co, the publishers of Dorter’s earlier book on commercial arbitration. The proposal generated considerable debate. It was for a very big book (it eventually came in at over 800 pages) which would be very expensive to produce. The authors were unproven – Arbitration (Commercial) was much too new a book to be judged at all. It was a book for legal practitioners and there would be no student market. Such ‘black letter law’ books were traditionally written by barristers, with some academics, and not by solicitors such as the proposed authors. It

was a time when it was assumed that the best legal brains, and so the best authors, were at the bar – that was why you obtained silk’s opinion after all. Aside from ability, solicitors were notorious for being problem authors. In particular, time pressures seemed more intractable for solicitors than for barristers. How would Dorter and Sharkey find the time when faced with the demands of clients and the expectations of their partners? So far as anyone at Law Book Company could recall, no solicitors in Australian legal history had ever written a book of this scale. Would they finish? Would they be able to maintain quality? Even if they did, would it be marketable? Would it be profitable? There was a second issue weighing on Law Book Company’s debate. At this time, the Australian legal world was still intertwined with the English. The Privy Council, for example, continued to hear Australian

75 The CIArb Australia News December 2015

"THE ARBITRATOR" The Hon Justice David Byrne Supreme Court of Victoria 2007 The uniform commercial arbitration legislation came into force in most of the various jurisdictions of Australia between 1985 and 1987.1 In 1996 there appeared the first text on arbitration under the new regime. It was written by John Dorter and John Sharkey. I reviewed it for "The Arbitrator" in April of that year, concluding that there would be few arbitrations in the future where at least one copy would not be lying on the table. A generation has now passed, and my copy is a little yellow on the spine and the well-thumbed pages have doggy ears. The extraordinary thing about this book is that it was written at a time when no court had had the opportunity to construe the new legislation. Nevertheless, the analysis by the two Johns, based as it was upon case law which considered rather different legislation, was remarkably prescient. For example, they discussed an area which inevitably exercises the minds of courts, that of an appeal against an award pursuant to s.38. Here, the authors assumed that the principles for the grant of leave to appeal would be those commonly called the Nema guidelines. These were the principles worked out upon a similar legislative regime by the House of Lords2 whose membership reflected a very considerable experience with arbitrations, especially international arbitrations. At p.269 they introduced their discussion of these principles with the warning that the Nema guidelines are no more than guidelines: they should not be given statutory effect. Very soon, appellate courts in Australia expressed the same view, reminding trial judges that the power to grant leave to appeal conferred by Parliament was an unfettered one. It should be exercised only as the justice of the case required; not by the application of judge-made rules.3 As is well known, in 1993 Parliament stepped in and inserted limitations on the power of the Court to grant leave to appeal, which limitations resemble in some respects those set out in those same Nema guidelines. It is nevertheless regrettable that a second edition of their work has not seen the light of day. Russell on Arbitration was already in its fourth edition on the twenty-first anniversary of its first appearance in 1849. It is hard to suppose that the volume of legislative change and judicial activity in the nineteenth century was as great as that which we have had to deal with in the last decades of the twentieth century.

appeals and the Australian appellate courts debated whether decisions of the English Court of Appeal were binding or nonbinding precedents. English legal literature remained directly relevant to an Australian lawyer's life and Australian sales were assumed by the publishers at Sweet & Maxwell, the English arm of Associated Book Publishers, the multi-national owners of Law Book company. “I have just commissioned a book by X and contracted that you will buy Y number of copies at £Z” we were blithely told “It will be a very good book. You will do well from it. X is a Cambridge don!” This colonial attitude could still be found in the local legal profession. Many leading Australian lawyers thought it more prestigious to be published in London than in Sydney – Ian Spry QC, for example, published the early editions of Equitable Remedies through Sweet & Maxwell - just as they preferred to write in the Law Quarterly Review to the Australian Law Journal. A consequence of this was the continuing belief amongst many Australian lawyers that English law books were superior to anything published in Australia. Amongst Sweet & Maxwell’s armoury of leading black letter law books were three key books on building contracts: Hudson, Duncan Wallace and Keating. Would Australian lawyers buy Dorter & Sharkey’s Building and Construction Contracts in Australia when these were available? Questionable, said the marketers. Why couldn’t this book be the Australian edition of one of the Sweet & Maxwell classics, recalling the successful Australian edition of Cheshire and Fyfoot’s Law of Contract (rather than Starke’s Law of Contract: works such as

Meagher, Gummow and Lehane on Equity were rare beasts). But if you did this, if you published Dorter & Sharkey at all, would not any profits be offset by reduced sales of the very profitable English books? Probably, said the accountants. So what Dorter and Sharkey were proposing was not a straightforward decision for the publishers. It was to be a very big, expensive proposal from solicitors who were inexperienced as authors, distinctively Australian and in competition with Sweet & Maxwell texts. Lights were flashing red all over the place, on almost every criterion – except one. That one was its subject matter – building and construction law. Another publishing stereotype of the time was that the construction world and the legal disputes which inevitably arose in it were a goldmine for any lawyers who could get themselves a guernsey. The money involved was substantial, the paperwork voluminous and, usually, incomplete. The lawyers involved appeared prepared to buy more than one book on building contracts. In particular Butterworth’s publication of Brooking on Building Contracts in 1974 had not affected sales of the Sweet and Maxwell books. (Brooking was a leading Melbourne silk, then Supreme Court judge; his book had excellent reviews and was known to be successful). Perhaps Dorter and Sharkey would be bought in addition to, rather than instead of … This green light overwhelmed all the red. Building and Construction Contracts in Australia – Law and Practice was published in 1981 and was an immediate success. Reviews were excellent

The CIArb Australia News December 2015

and sales way ahead of expectations. They continued that way: as late as 1985 and 1986, the 365 sales were double what was budgeted. It eventually sold out completely in May 1987. Three years later, in 1990, it was revised, updated and republished in looseleaf and its success repeated. In the meantime, in 1984, John Dorter had come to Law Book Co with a new idea, The Building and Construction Law Journal. He would be general editor with John Sharkey closely involved as Victorian State editor. Law Book Co had very little hesitation about this. Serial publications were generally thought the way of the future; there was a large potential subscriber list to be piggybacked from the purchasers of Building Contracts, the subject matter was right for a journal, and the editors had more than proved themselves. It was again an immediate success with sales of over $33,000 in the first two months of publication, November and December 2005. This was over 20% of Law Book Co’s total revenue from bound subscriptions for 1985. Dorter and Sharkey were golden authors. When they suggested writing a new book on the new uniform Commercial Arbitration Act, there was no hesitation. And rightly. Published in April 1986 on a print run of 2,000 at a cost of $24,000, 734 copies of Sharkey and Dorter’s Commercial

Arbitration were sold in the first year for $33,941. As to the book itself, my memory is that it was a happy book, one that the authors enjoyed writing and the publishers publishing. Looking at it now, it strikes me how much has changed in law books. There is hardly a footnote and almost no academic citation. However, the occasional references outside the case law encapsulate an enduring strength of the book, the breadth of the authors’ scholarship: In the first 100 pages, for example, there are six references; one is to Ron Fitch, doyen of Australian arbitrators and the second to Lord Justice Roskill, writing extra-judicially.

The others are to St Matthew’s Gospel, Thomas Hobbes, Ruskin and Plato. It is learning such as this that gives Commercial Arbitration its special place in the pantheon of Australian legal literature.

This is, of course, a comment from a selfish consumer of the product of the energy and researches of Sharkey and Dorter. It ignores entirely the truly amazing output of these two pre-eminent Australian arbitration and construction lawyers. It is hard to overstate their contribution to the practice and development of the law in these two fields. Not content with binding themselves to the treadmill of the loose-leaf edition of their work, Building and Construction Contracts in Australia, each has a truly impressive record of service to the discipline of arbitration and to practitioners of construction law. And at the same time they have managed to conduct very substantial practices as senior partners in major firms of solicitors in Sydney and Melbourne and, indeed, in many other places in Australia and beyond. It is appropriate, therefore, on the twenty-first anniversary of the publication of their work, Commercial Arbitration in Australia, that we, as practitioners in our various ways in that important field of the law, should pause to salute the considerable contribution of these two men. Not content with simply cultivating their own garden, as Candide was exhorted to do, they have not spared themselves to enable us all to enjoy and to be enriched by the flowering of their erudition. For that we are grateful. 1.

The legislation in Queensland did not commence until December 1990.

Pioneer Shipping Ltd v DTP Tioxide Ltd; "The Nema" [1982] AC 724.

Qantas Airways Ltd v Joseland & Gilling (1986) 6 NSWLR 327; Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd [1992] 2 VR505.

Tribute by Prof John Sharkey AM I first met John Dorter in 1975 when The Institute of Arbitrators Australia, to give it its original title, was established. John was a founding fellow of the Institute going on to hold several senior positions over the years. He was passionate about alternative dispute resolution, and particularly the place of arbitration, long before the broader community take-up of the concept. John was a prolific writer and teacher giving willingly of his time to raise the standards of Australian dispute resolution with regular lecturing commitments not just to the IAA but to The Australian Federation of Construction Contractors and, in more recent years, to the Masters’ programme at the University of Melbourne. Beyond his professional reputation as a leader in Australian construction law, John was a lawyer of great humility and decency with a generosity that saw him always willing to aid others, particularly the junior lawyers who got the opportunity to work with him. His passing leaves a rich legacy and wonderful memories for those fortunate enough to have enjoyed his professional and private circles. Prof John Sharkey AM 27 December 2015

77 The CIArb Australia News December 2015

PROF DOUG JONES AO INTERNATIONAL COMMERCIAL ARBITRATOR CIARB FELLOW CIARB GLOBAL PRESIDENT (2011)

Member Profile: Prof Doug Jones AO

oug Jones is a leading international commercial and investor/state arbitrator.

Doug has experience in both ad hoc and institutional commercial arbitrations under the AAA, ACCL, ACICA, AMINZ, CCCL, DIAC, HKIAC, IAMA, ICC, ICDR, ICSID KLRCA, LCIA, SIAC, UNCITRAL and other international rules. He sits regularly as an arbitrator in London; in addition to many other jurisdictions, from Singapore to California, Dubai to Kuala Lumpur. He has also acted as counsel and mediator in numerous ADR procedures in infrastructure related disputes. He uses a flexible approach as the key to success in ADR procedures. The arbitrations in which he has been involved include infrastructure, energy, commodities, intellectual property, commercial and joint venture, and investor-state disputes spanning over 30 jurisdictions around the world with sums claimed up to US$1 billion.

Doug has published and spoken extensively and holds professorial appointments at a London university and two Australian universities. He has an office in Sydney, Australia and chambers in London, UK and Toronto, Canada. Read more What/Who inspired your interest in arbitration? My practice as an international projects lawyer introduced me to international and commercial arbitration and as I came to learn more about its theory and practice, its comparative substantive and procedural law issue inspired me. I came a little later to Investor State Dispute Resolution which adds fascinating International Public Law and procedural challenges. What traits make a good arbitrator? Judgement, diligence, and organisational ability.

Refer to an historical conflict you wish you could have participated in and why? The arbitration between Britain and the US over the sinking of the Alabama. This was a great example of one of the first contributions of International Arbitration to solving serious

The CIArb Australia News December 2015

The Sinking of the CSS Alabama, 1922, oil on canvas, Franklin D. Roosevelt Presidential Library and Museum, Hyde Park, New York. Commissioned by then Assistant Secretary of the Navy, Franklin D. Roosevelt.

disagreements between nations and had some interesting damages issues as well! What is your idea of perfect happiness? Spending time with family. What is your greatest fear? Failing to perform to the best of my ability. What is your greatest extravagance? Running.

What do you consider the most over-rated virtue?

What is your favourite piece of literature?

Acceptance of injustice.

The Tyrannicide Brief by Geoffrey Robertson QC.

Which living person/s do you most admire? Aung San Suu Kyi and Daniel Barenboim who has used his amazing musical talents, and standing, to bridge the gulf between Israelis and Palestinians by the creation of The Westâ&#x20AC;&#x201C;Eastern Divan Orchestra. What is your favourite journey? Highway 1 From San Francisco to Santa Barbara. What is your favourite piece of music? Mozart Quintet for horn, violin, 2 violas and cello in E flat major K407.

What is your favourite film? Tinker, Tailor, Soldier, Spy. What credo/maxim/motto inspires you? Carpe Diem.

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COUNCIL AND SECRETARIAT Patron

The Hon Murray Gleeson AC Chief Justice of the High Court of Australia (1998-2008), Sydney

Trustee

Malcolm Holmes QC Barrister, Eleven Wentworth Chambers, Sydney

President

Albert Monichino QC Barrister, Owen Dixon Chambers, Melbourne

Vice President

Caroline Kenny QC Barrister, Owen Dixon Chambers, Melbourne

Damian Sturzaker Partner, Marque Lawyers, Sydney

Treasurer

Prof Colin Roberts Centre for Research in Energy & Mineral Economics (CREME) Curtin University & Colin Roberts Group, Perth

Company Secretary

John Arthur Barrister, Owen Dixon Chambers, Melbourne

National Councillors

Beth Cubitt Partner, Clyde & Co, Perth

Simon Davis Barrister, Francis Burt Chambers, Perth

Jo Delaney Special Counsel, Baker & McKenzie, Sydney

Sandrah Foda Barrister, Third Floor St Jamesâ&#x20AC;&#x2122; Hall Chambers, Sydney

James Healy Barrister, Francis Burt Chambers, Perth

Caroline Kenny QC Barrister, Owen Dixon Chambers, Melbourne

Dr Stephen Lee Barrister, 35 West Chambers, Brisbane

Paul Menzies QC 12 WentworthSelborne Chambers, Sydney

Ian Nosworthy Senior Consultant, Cowell Clarke, Adelaide

Ron Salter Arbitrator & Mediator, Melbourne

Julie Soars Barrister, Seven Wentworth, Sydney

Secretariat ADC Level 16, 1 Castlereagh Street Sydney, NSW, 2000 T: +61 2 9230 0677 F: +61 2 9223 7053 E: info@ciarb.net.au Media & Publications Gianna Totaro E: gtotaro@ozemail.com.au M: +61 438 337 328

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The CIArb Australia News The CIArb Australia News is the flagship publication of the Chartered Institute of Arbitrators (Australia) Limited. All contributions and advertising are welcome and should be sent to the Editor: Gianna Totaro gtotaro@ozemail.com.au Casenotes and opinion pieces are reviewed by The CIArb Australia News Peer Review Panel. Views expressed by contributors are not necessarily endorsed by the Chartered Institute of Arbitrators (Australia) Limited. We gratefully acknowledge the kind permission given by journalists, photographers, illustrators and editors whose valued work is kindly reprinted in this edition.