International arbitration: reconsidering the hearing

International arbitration: reconsidering the hearing

Bronwyn Lincoln, partner with Corrs Chambers Westgarth, asks: Is an arbitration hearing actually required?

Her article moves beyond the question of how a hearing should proceed and encourages parties, their counsel and tribunals to instead ask whether a hearing is required – a particularly pertinent question during the COVID-19 pandemic.

See the full text at: Is a hearing actually required?

Family Courts Arbitration List

The Family Courts have formalised support for alternative dispute resolution with the introduction of an Arbitration List.

On 6 April 2020, the Hon William Alstergren, Chief Justice of the Family Court of Australia and the Chief Judge of the Federal Circuit Court of Australia announced that to support the development and promotion of arbitration for property matters in family law, the Family Court of Australia and the Federal Circuit Court of Australia (the Courts) have established a new specialist list in each Court, to be known as the National Arbitration List.

  • Justice Josh Wilson will be the National Arbitration Judge for the Family Court of Australia.
  • Judge Joe Harman will be the National Arbitration Judge for the Federal Circuit Court of Australia.
  • Justice Strickland will be the coordinating Appeals Judge for Arbitration Appeals in the Appeal Division of the Family Court of Australia.

The list will operate as a national electronic list in each Court and will include the following features:

  • Whenever a matter is referred to arbitration that case will be placed into the National Arbitration List,
  • Any application for interim orders sought by an arbitrator or one of the parties will be dealt with by the National Arbitration Judge electronically,
  • Any applications relating to the registering of the arbitration award, objection to an award being registered or an application for review will be conducted either the National Arbitration Judge or a nominated judge assigned by the Chief Justice or Chief Judge, and
  • Any appeal from a decision of the National Arbitration Judge or other nominated judge will be managed by Justice Strickland as the Coordinating Arbitration Appeal Division Judge.

His Honour said:

“The Courts have long supported the use of alternative dispute resolution as a quicker and more affordable option for litigants to resolve their disputes, rather than continuing to trial.

“The introduction of the Arbitration List will ensure consistency and timeliness and the determination of such applications will be given considered priority.

“While arbitration has traditionally and commonly been used in commercial litigation, our Courts are very keen to support the wider use of arbitration in family law for property matters.”

Read the letter here: Arbitration List

NSW Farmers’ Assoc Mining and Resources Legal Forum

Access Arrangements for Coal and Coal-seam Gas in NSW was the subject of a Seminar held by the NSW Farmers Association recently. Prospecting and mining for coal and coal seam gas (CSG) is a hot topic in NSW at the moment with the new State Government declaring a 90 day moratorium on issuing further licences.

NSW farmers are concerned about mining exploration for coal and coal-seam gas on their land.  This prompted the NSW Farmers Association to invite farmers, solicitors, government and industry speakers to a 2 day forum at their Sydney headquarters on 29/30 June 2011.

Mediation & Arbitration Chambers  members, Derek Minus and Brydget Barker-Hudson were invited by the NSW Farmers Association to address the seminar on dispute resolution techniques. The NSW Mining and Petroleum (Onshore) Acts direct the procedure for dispute resolution and other related access matters  for mining activities.  Mediation & Arbitration Chambers welcomed this opportunity to talk with the farming community and their legal representatives, predominantly rural-based, concerning the benefits of the Med-Arb process.  They have also offered to give similar presentations to the mining / gas industry.

Derek Minus provided a presentation on the use of  mediation (which is not identified as a process available under the Acts) and other dispute resolution techniques to negotiate access arrangements. He  focussed on the benefits of early dispute resolution through mediation prior to the statutory process being commenced.  The use of negotiation and mediation in other situations was also developed by both Chambers members particularly in business development and farming family related and family-business related situations.

Being a Member of the NSW Mining Minister’s Arbitration Panel, Brydget Barker-Hudson focussed on the process of Conciliation to the development of an agreed Access Arrangement.  If issues are unresolved the following statutory process of arbitration was discussed.  Brydget highlighted the role of solicitors / advisers in this process.  She outlined ways rural solicitors, who know their farm-based clients well, can assisting their clients and community to develop useful, liveable outcomes in Exploration Access Arrangements / Agreements.

Mediation & Arbitration Chambers is happy to advise parties and their legal advisers, about developing dispute resolution through Mediation, Med-Arb and Arbitration in coal and coal-seam gas and other farm / rural related and commercial issues.

 

Senate report on the Civil Dispute Resolution Bill 2010

On 2 December 2010, the Senate Standing Committee on Legal and Constitutional Affairs provided its report on proposed amendments to the Civil Dispute Resolution Bill 2010 (CDR).

The object of the CDR is to ensure that people take ‘genuine steps’ to resolve disputes before instituting civil proceedings in the Federal Court or Federal Magistrates Court. The aim of the Bill is to:

  • change the adversarial culture often associated with disputes;
  • focus on resolution before parties become entrenched in litigation;
  • ensure that, where disputes proceed to court, the issues are properly identified, thereby reducing the time required for determination.

Most controversial was whether parties to a dispute, needed to show that they had taken genuine steps, as the Bill proposed, or rather reasonable steps as is used in the Victorian Civil Procedure Act 2010 and is proposed for amendments to the NSW Civil Procedure Act 2005. It was argued that the use of the term ‘reasonable steps’ was more certain and less likely to lead to disputes of interpreting comparative legislative provisions. Despite a contrary written view by the two Liberal Senators on the committee that the term ‘reasonable steps’ should be preferred, the committee took the bold move of endorsing the recommendation of NADRAC, that the Bill require a ‘genuine’ effort to be made by disputing parties.

In summary, the committee recommended that, subject to the recommendations in relation to the definition of the word ‘genuine’, the consideration of position of disadvantaged litigants and the protection of the privacy of documents, that the Senate pass the Bill.

The committee conclusions and recommendations from the report are set out below.

Conclusions

3.58 The committee notes that the Civil Dispute Resolution Bill 2010 is part of the government’s moves to improve access to justice. It also reflects a cultural shift in how the position of the courts is perceived in the justice system. Through the ‘genuine steps’ obligation, the Bill aims to support the resolution of certain civil disputes in the Federal Court and the Federal Magistrates Court before litigation is commenced. The committee considers that the introduction of this obligation is an important initiative in ensuring that there is a focus on resolving a matter before costly and time consuming litigation is undertaken. Even when matters are not resolved, there will be a benefit to parties as the issues in dispute will be clarified and narrowed.

3.59 The committee has carefully considered arguments that the Bill introduces mandatory pre-action protocol. The committee is satisfied that this is not the case. Rather, while it is obligatory to provide a genuine steps statement, the Bill provides flexibility to the parties to determine the steps that they wish to take to resolve their dispute and allows for circumstances when genuine steps cannot be undertaken. The Bill provides examples of genuine steps but does not mandate those that should be taken. This is the case with ADR: although witnesses focused on mandatory ADR, the Bill only provides ADR as an example of a genuine step, not a mandated step.

3.60 However, the committee believes that the Bill would benefit from the addition of an inclusive definition of ‘genuine’ to better reflect the intention of the NADRAC report and to provide guidance to the parties involved.

Recommendation 1

3.61 The committee recommends that the Bill be amended to provide for an inclusive definition of the word ‘genuine’ to better reflect the intention of the National Alternative Dispute Resolution Advisory Council report.

3.62 The committee has also considered the extensive discussion in evidence in relation to the exclusions to the genuine steps obligation. The committee is satisfied that the list of exclusions is appropriate and that, as indicated by the Department, should the need arise, further additions to the list can be made through regulation.

3.63 In relation to disadvantaged litigants, the committee has noted the comments by the Attorney-General’s Department and NADRAC that disadvantaged litigants may benefit from less stress, cost and delay through the genuine steps obligation. In addition, disadvantaged litigants will benefit from the additional resources provided by the Australian Government through its Access to Justice measures. However, the committee considers that the Bill should be amended to ensure that disadvantaged people benefit from the proposed regime and are not further disadvantaged or denied access to justice by ensuring that the court, in considering the genuine steps taken by a person when it is exercising its powers or performing its functions, takes into account the circumstances of disadvantaged litigants.

Recommendation 2

3.64 The committee recommends that the Bill be amended so that the court, when taking into consideration the genuine steps that have been taken by a person when it is exercising its powers or performing its functions, also takes into account the circumstances of disadvantaged litigants.

3.65 The committee has also noted the concerns raised by the Castan Centre for Human Rights Law and the NSW Department of Justice and Attorney General in relation to the disclosure of information and the possible interference with a right to privacy. The committee considers that the Bill would be improved if it contained provisions to ensure that information disclosed cannot be used for any purpose outside the resolution of the dispute at hand.

Recommendation 3

3.66 The committee recommends that the Bill be amended so that information disclosed during the genuine steps obligation cannot be used for any other purpose outside the resolution of the dispute at hand.

3.67 As a final matter, the committee was concerned about the comments made in evidence in relation to the consultation undertaken by the Department before the Bill was introduced. While many stakeholders contributed to the NADRAC report, the committee considers that the Department would have been well served by engaging more thoroughly with stakeholders before the Bill was introduced in the Parliament.

ADR in Australia

Australia has an agreeable reputation for legal professionalism and we are able to rely on our legal system and courts to provide reasoned and just decisions. However, our increasingly regulated society provides all types of disputes for which determination by a court is an unwieldy and expensive solution. The vast majority of matters filed in courts never reach a final determination and are instead settled out of court by negotiation, agreement or abandonment.

As a result, Australian courts are increasing relying on ADR (Alternative Dispute Resolution) methods to assist with the resolution of the expanding number and complexity of matters competing for court time. These ADR methods include conciliation, mediation, independent appraisal, and arbitration. These processes are highly effective in dealing with all types of disputes, particularly those involving complex factual situations, technical issues requiring expert evidence or emotionally charged disputes.

Why not start with a process that will lead to the best result, rather than get there by a costly and circuitous route?

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Welcome to the Med-Arb Blog. We will update you regularly with information, news, events, and opinions concerning mediation, arbitration, and Med-Arb.

Our bloggers are from the Mediation & Arbitration Chambers, Australia’s first national dispute resolution practice to promote and employ integrated mediation and arbitration process. The organisation was established to meet the need of commercial organisations that are seeking flexible, final and confidential dispute resolution services, provided by competent and qualified legal professionals.

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