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Queensland
Commercial Arbitration Bill
2011
Queensland
Commercial Arbitration Bill 2011
Contents
Page
Part 1A Preliminary
1AA Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1AB Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1AC Paramount object of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1AD Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Part 1 General provisions
1 Scope of application (cf Model Law Art 1) . . . . . . . . . . . . . . . . . . 7
2 Definitions and rules of interpretation (cf Model Law Art 2) . . . . . 9
2A International origin and general principles (cf Model Law Art 2A) 11
3 Receipt of written communications (cf Model Law Art 3) . . . . . . . 12
4 Waiver of right to object (cf Model Law Art 4). . . . . . . . . . . . . . . . 12
5 Extent of court intervention (cf Model Law Art 5) . . . . . . . . . . . . . 13
6 Court for certain functions of arbitration assistance and
supervision (cf Model Law Art 6) . . . . . . . . . . . . . . . . . . . . . . . . . 13
Part 2 Arbitration agreement
7 Definition and form of arbitration agreement (cf Model Law Art 7) 14
8 Arbitration agreement and substantive claim before court (cf
Model Law Art 8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9 Arbitration agreement and interim measures by court (cf Model
Law Art 9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Part 3 Composition of arbitral tribunal
10 Number of arbitrators (cf Model Law Art 10) . . . . . . . . . . . . . . . . 15
11 Appointment of arbitrators (cf Model Law Art 11). . . . . . . . . . . . . 16
12 Grounds for challenge (cf Model Law Art 12) . . . . . . . . . . . . . . . . 17
13 Challenge procedure (cf Model Law Art 13). . . . . . . . . . . . . . . . . 18
14 Failure or impossibility to act (cf Model Law Art 14) . . . . . . . . . . . 19
15 Appointment of substitute arbitrator (cf Model Law Art 15) . . . . . 20
Commercial Arbitration Bill 2011
Contents
Part 4 Jurisdiction of arbitral tribunal
16 Competence of arbitral tribunal to rule on its jurisdiction (cf
Model Law Art 16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Part 4A Interim measures
Division 1 Interim measures
17 Power of arbitral tribunal to order interim measures (cf Model
Law Art 17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
17A Conditions for granting interim measures (cf Model Law Art 17A) 23
Division 2 Preliminary orders
17B Applications for preliminary orders and conditions for granting
preliminary orders (cf Model Law Art 17B) . . . . . . . . . . . . . . . . . . 23
17C Specific regime for preliminary orders (cf Model Law Art 17). . . . 24
Division 3 Provisions applicable to interim measures
17D Modification, suspension, termination (cf Model Law Art 17D) . . 24
17E Provision of security (cf Model Law Art 17E) . . . . . . . . . . . . . . . . 24
17F Disclosure (cf Model Law Art 17F) . . . . . . . . . . . . . . . . . . . . . . . . 25
17G Costs and damages (cf Model Law Art 17G) . . . . . . . . . . . . . . . . 25
Division 4 Recognition and enforcement of interim measures
17H Recognition and enforcement (cf Model Law Art 17H). . . . . . . . . 25
17I Grounds for refusing recognition or enforcement (cf Model Law
Art 17I) ....................................... 26
Division 5 Court-ordered interim measures
17J Court-ordered interim measures (cf Model Law Art 17J) . . . . . . . 27
Part 5 Conduct of arbitral proceedings
18 Equal treatment of parties (cf Model Law Art 18). . . . . . . . . . . . . 28
19 Determination of rules of procedure (cf Model Law Art 19) . . . . . 28
20 Place of arbitration (cf Model Law Art 20) . . . . . . . . . . . . . . . . . . 29
21 Commencement of arbitral proceedings (cf Model Law Art 21) . . 29
22 Language (cf Model Law Art 22) . . . . . . . . . . . . . . . . . . . . . . . . . 30
23 Statements of claim and defence (cf Model Law Art 23) . . . . . . . 30
24 Hearings and written proceedings (cf Model Law Art 24) . . . . . . 31
24A Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
24B General duties of parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
25 Default of a party (cf Model Law Art 25). . . . . . . . . . . . . . . . . . . . 32
26 Expert appointed by arbitral tribunal (cf Model Law Art 26) . . . . . 34
27 Court assistance in taking evidence (cf Model Law Art 27) . . . . . 34
27A Parties may obtain subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Page 2
Commercial Arbitration Bill 2011
Contents
27B Refusal or failure to attend before arbitral tribunal or to produce
document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
27C Consolidation of arbitral proceedings . . . . . . . . . . . . . . . . . . . . . . 37
27D Power of arbitrator to act as mediator, conciliator or other
non-arbitral intermediary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
27E Disclosure of confidential information. . . . . . . . . . . . . . . . . . . . . . 40
27F Circumstances in which confidential information may be
disclosed ..................................... 41
27G Arbitral tribunal may allow disclosure of confidential information
in certain circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
27H The Court may prohibit disclosure of confidential information in
certain circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
27I The Court may allow disclosure of confidential information in
certain circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
27J Determination of preliminary point of law by the Court . . . . . . . . 44
Part 6 Making of award and termination of proceedings
28 Rules applicable to substance of dispute (cf Model Law Art 28) . 45
29 Decision-making by panel of arbitrators (cf Model Law Art 29) . . 45
30 Settlement (cf Model Law Art 30) . . . . . . . . . . . . . . . . . . . . . . . . . 46
31 Form and contents of award (cf Model Law Art 31) . . . . . . . . . . . 46
32 Termination of proceedings (cf Model Law Art 32) . . . . . . . . . . . . 46
33 Correction and interpretation of award; additional award (cf
Model Law Art 33) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
33A Specific performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
33B Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
33C Application of Legal Profession Act 2007 . . . . . . . . . . . . . . . . . . . 49
33D Costs of abortive arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
33E Interest up to making of award . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
33F Interest on debt under award . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Part 7 Recourse against award
34 Application for setting aside as exclusive recourse against
arbitral award (cf Model Law Art 34). . . . . . . . . . . . . . . . . . . . . . . 52
34A Appeals against awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Part 8 Recognition and enforcement of awards
35 Recognition and enforcement (cf Model Law Art 35) . . . . . . . . . . 55
36 Grounds for refusing recognition or enforcement (cf Model Law
Art 36) ....................................... 56
Part 9 Miscellaneous
37 Death of party. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Page 3
Commercial Arbitration Bill 2011
Contents
38 Interpleader . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
39 Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
40 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Part 10 Repeal and transitional provision
Division 1 Repeal
41 Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Division 2 Transitional provision
42 Transitional provision for Commercial Arbitration Act 2011 . . . . . 59
Part 11 Consequential amendments
43 Acts amended in schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Schedule Consequential and minor amendments . . . . . . . . . . . . . . . . . 61
Part 1 Amendment of this Act
Part 2 Amendment of other Acts
Chicken Meat Industry Committee Act 1976 . . . . . . . . . . . . . . . . 61
District Court of Queensland Act 1967. . . . . . . . . . . . . . . . . . . . . 61
Domestic Building Contracts Act 2000 . . . . . . . . . . . . . . . . . . . . . 62
Funeral Benefit Business Act 1982 . . . . . . . . . . . . . . . . . . . . . . . 62
Mixed Use Development Act 1993 . . . . . . . . . . . . . . . . . . . . . . . . 62
Retail Shop Leases Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
South Bank Corporation Act 1989 . . . . . . . . . . . . . . . . . . . . . . . . 63
Supreme Court of Queensland Act 1991 . . . . . . . . . . . . . . . . . . . 63
Transport Infrastructure Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . . 63
Transport Operations (Passenger Transport) Act 1994 . . . . . . . . 64
Page 4
2011
A Bill
for
An Act to provide for the conduct of commercial arbitration, to
repeal the Commercial Arbitration Act 1990 and to make
consequential amendments to the Acts mentioned in the
schedule
Commercial Arbitration Bill 2011
Part 1A Preliminary
[s 1AA]
The Parliament of Queensland enacts-- 1
Part 1A Preliminary 2
Note-- 3
To ensure the greatest possible harmonisation across Australian 4
jurisdictions, this Act closely follows commercial arbitration legislation 5
enacted in other Australian jurisdictions. Accordingly, this Act is not 6
entirely consistent with Queensland's current drafting style. 7
Sections of this Act that contain a reference to the `Model Law' in the 8
heading are substantially the same as the provisions of the UNCITRAL 9
Model Law on International Commercial Arbitration (as adopted by the 10
United Nations Commission on International Trade Law on 21 June 11
1985 with amendments as adopted by that Commission in 2006) so as to 12
be as uniform as possible with the UNCITRAL Model Law. 13
Some changes have been made to those provisions of the Act based on 14
the UNCITRAL Model Law to amend or supplement the provisions in 15
their application to domestic arbitrations in Queensland or to 16
accommodate modern drafting styles and conventions (for example, 17
provisions are drafted in gender neutral terms and archaisms are 18
replaced with modern alternatives). Editor's notes draw attention to 19
substantive changes. 20
The original numbering of the `articles' of the UNCITRAL Model Law 21
has been retained but converted to references to `sections' and articles 22
containing more than one sentence have been reformatted into 23
subsections. There are a number of additional provisions to those based 24
on the UNCITRAL Model Law. 25
1AA Short title 26
This Act may be cited as the Commercial Arbitration Act 27
2011. 28
1AB Commencement 29
This Act commences on a day to be fixed by proclamation. 30
Page 6
Commercial Arbitration Bill 2011
Part 1 General provisions
[s 1AC]
1AC Paramount object of Act 1
(1) The paramount object of this Act is to facilitate the fair and 2
final resolution of commercial disputes by impartial arbitral 3
tribunals without unnecessary delay or expense. 4
(2) This Act aims to achieve its paramount object by-- 5
(a) enabling parties to agree about how their commercial 6
disputes are to be resolved (subject to subsection (3) and 7
such safeguards as are necessary in the public interest); 8
and 9
(b) providing arbitration procedures that enable commercial 10
disputes to be resolved in a cost-effective manner, 11
informally and quickly. 12
(3) This Act must be interpreted, and the functions of an arbitral 13
tribunal must be exercised, so that (as far as practicable) the 14
paramount object of this Act is achieved. 15
(4) Subsection (3) does not affect the application of the Acts 16
Interpretation Act 1954, section 14A for the purposes of 17
interpreting this Act. 18
1AD Act binds all persons 19
This Act binds all persons, including the State and, as far as 20
the legislative power of the State permits, the Commonwealth 21
and the other States. 22
Part 1 General provisions 23
1 Scope of application (cf Model Law Art 1) 24
(1) This Act applies to domestic commercial arbitrations. 25
Note-- 26
The International Arbitration Act 1974 (Cwlth) covers international 27
commercial arbitrations and the enforcement of foreign arbitral awards. 28
Page 7
Commercial Arbitration Bill 2011
Part 1 General provisions
[s 1]
(2) The provisions of this Act, except sections 8, 9, 17H, 17I, 17J, 1
35 and 36, apply only if the place of arbitration is in 2
Queensland. 3
(3) An arbitration is domestic if-- 4
(a) the parties to an arbitration agreement have, at the time 5
of the conclusion of that agreement, their places of 6
business in Australia; and 7
(b) the parties have (whether in the arbitration agreement or 8
in any other document in writing) agreed that any 9
dispute that has arisen or may arise between them is to 10
be settled by arbitration; and 11
(c) it is not an arbitration to which the Model Law (as given 12
effect by the International Arbitration Act 1974 13
(Cwlth)) applies. 14
(4) For the purposes of subsection (3)-- 15
(a) if a party has more than one place of business, the place 16
of business is that which has the closest relationship to 17
the arbitration agreement; and 18
(b) if a party does not have a place of business, reference is 19
to be made to the party's habitual residence. 20
(5) This Act does not affect any other Act by virtue of which 21
certain disputes may not be submitted to arbitration or may be 22
submitted to arbitration only according to provisions other 23
than those of this Act. 24
(6) Subject to subsection (5), this Act applies to arbitrations 25
provided for in any other Act as if-- 26
(a) the other Act were an arbitration agreement; and 27
(b) the arbitration were pursuant to an arbitration 28
agreement; and 29
(c) the parties to the dispute which, by virtue of the other 30
Act, is referred to arbitration were the parties to the 31
arbitration agreement; 32
except in so far as the other Act otherwise indicates or 33
requires. 34
Page 8
Commercial Arbitration Bill 2011
Part 1 General provisions
[s 2]
Note-- 1
The term `commercial' should be given a wide interpretation so as to 2
cover matters arising from all relationships of a commercial nature, 3
whether contractual or not. 4
Relationships of a commercial nature include, but are not limited to, the 5
following transactions--any trade transaction for the supply or 6
exchange of goods or services; distribution agreement; commercial 7
representation or agency; factoring; leasing; construction of works; 8
consulting; engineering; licensing; investment; financing; banking; 9
insurance; exploitation agreement or concession; joint venture and other 10
forms of industrial or business cooperation; carriage of goods or 11
passengers by air, sea, rail or road. 12
Editor's note-- 13
This section differs from the Model Law to the extent necessary to apply 14
Art 1 as incorporated in this Act to domestic commercial arbitrations. 15
Section 40 contains provisions that also relate to the application of this 16
Act. 17
2 Definitions and rules of interpretation (cf Model Law Art 2) 18
(1) In this Act-- 19
arbitral tribunal means a sole arbitrator or a panel of 20
arbitrators. 21
arbitration means any domestic commercial arbitration 22
whether or not administered by a permanent arbitral 23
institution. 24
arbitration agreement see section 7. 25
confidential information, in relation to arbitral proceedings, 26
means information that relates to the arbitral proceedings or to 27
an award made in those proceedings and includes the 28
following-- 29
(a) the statement of claim, statement of defence and all 30
other pleadings, submissions, statements or other 31
information supplied to the arbitral tribunal by a party; 32
(b) any information supplied by a party to another party in 33
compliance with a direction of the arbitral tribunal; 34
Page 9
Commercial Arbitration Bill 2011
Part 1 General provisions
[s 2]
(c) any evidence (whether documentary or otherwise) 1
supplied to the arbitral tribunal; 2
(d) any notes made by the arbitral tribunal of oral evidence 3
or submissions given before the arbitral tribunal; 4
(e) any transcript of oral evidence or submissions given 5
before the arbitral tribunal; 6
(f) any rulings of the arbitral tribunal; 7
(g) any award of the arbitral tribunal. 8
disclose, in relation to confidential information, includes 9
publishing or communicating or otherwise supplying the 10
confidential information. 11
domestic commercial arbitration see section 1. 12
exercise a function includes perform a duty. 13
function includes a power, authority or duty. 14
interim measure see section 17. 15
Model Law means the UNCITRAL Model Law on 16
International Commercial Arbitration (as adopted by the 17
United Nations Commission on International Trade Law on 18
21 June 1985, and as amended by the United Nations 19
Commission on International Trade Law on 7 July 2006). 20
party means a party to an arbitration agreement and 21
includes-- 22
(a) any person claiming through or under a party to the 23
arbitration agreement; and 24
(b) in any case where an arbitration does not involve all of 25
the parties to the arbitration agreement, those parties to 26
the arbitration agreement who are parties to the 27
arbitration. 28
the Court means, subject to section 6(2), the Supreme Court. 29
Editor's note-- 30
The definitions arbitration agreement, confidential information, 31
disclose, domestic commercial arbitration, exercise, function, interim 32
Page 10
Commercial Arbitration Bill 2011
Part 1 General provisions
[s 2A]
measure, Model Law, party and the Court are not included in the Model 1
Law. 2
(2) Where a provision of this Act, except section 28, leaves the 3
parties free to determine a certain issue, such freedom 4
includes the right of the parties to authorise a third party, 5
including an institution, to make that determination. 6
(3) Where a provision of this Act refers to the fact that the parties 7
have agreed or that they may agree or in any other way refers 8
to an agreement of the parties, such agreement includes any 9
arbitration rules referred to in that agreement. 10
(4) Where a provision of this Act, other than sections 25(1)(a) and 11
32(2)(a), refers to a claim, it also applies to a counter-claim, 12
and where it refers to a defence, it also applies to a defence to 13
such counter-claim. 14
(5) A heading to a section of this Act (other than sections 1AA to 15
1AD), does not form part of this Act. 16
Editor's note-- 17
Subsection (5) is included to give effect to the first note to Art 1 of the 18
Model Law. 19
2A International origin and general principles (cf Model Law Art 20
2A) 21
(1) Subject to section 1AC, in the interpretation of this Act, 22
regard is to be had to the need to promote, so far as 23
practicable, uniformity between the application of this Act to 24
domestic commercial arbitrations and the application of the 25
provisions of the Model Law (as given effect by the 26
International Arbitration Act 1974 (Cwlth)) to international 27
commercial arbitrations and the observance of good faith. 28
(2) [omitted] 29
Editor's note-- 30
This section differs from the Model Law. Art 2A(1) has been changed as 31
a consequence of the application of the Act to domestic (instead of 32
international) commercial arbitrations. 33
Art 2A(2) is omitted because it is covered by the provision referred to in 34
section 1AC(4). 35
Page 11
Commercial Arbitration Bill 2011
Part 1 General provisions
[s 3]
Subsections (3) and (4) reflect the International Arbitration Act 1974 1
(Cwlth), section 17. 2
(3) Without limiting subsection (1), in interpreting this Act, 3
reference may be made to the documents relating to the Model 4
Law of-- 5
(a) the United Nations Commission on International Trade 6
Law; and 7
(b) its working groups for the preparation of the Model 8
Law. 9
(4) Subsection (3) does not affect the application of the Acts 10
Interpretation Act 1954, section 14B for the purposes of 11
interpreting this Act. 12
3 Receipt of written communications (cf Model Law Art 3) 13
(1) Unless otherwise agreed by the parties-- 14
(a) any written communication is taken to be received if-- 15
(i) it is delivered to the addressee personally; or 16
(ii) it is delivered at the addressee's place of business, 17
habitual residence or mailing address; or 18
(iii) if none of these can be found after making a 19
reasonable inquiry, it is delivered to the addressee's 20
last-known place of business, habitual residence or 21
mailing address by registered letter or any other 22
means which provides a record of the attempt to 23
deliver it; and 24
(b) the communication is taken to have been received on the 25
day it is so delivered. 26
(2) The provisions of this section do not apply to communications 27
in court proceedings. 28
4 Waiver of right to object (cf Model Law Art 4) 29
A party who knows that any provision of this Act from which 30
the parties may derogate or any requirement under the 31
Page 12
Commercial Arbitration Bill 2011
Part 1 General provisions
[s 5]
arbitration agreement has not been complied with and yet 1
proceeds with the arbitration without stating the party's 2
objection to such non-compliance without undue delay or, if a 3
time-limit is provided for stating the party's objection, within 4
such period of time, is taken to have waived the party's right 5
to object. 6
5 Extent of court intervention (cf Model Law Art 5) 7
In matters governed by this Act, no court must intervene 8
except where so provided by this Act. 9
6 Court for certain functions of arbitration assistance and 10
supervision (cf Model Law Art 6) 11
(1) The functions referred to in sections 11(3) and (4), 13(4), 12
14(2), 16(9), 17H to 17J, 19(6), 27 to 27B, 27H to 27J, 33D, 13
34 and 34A are, subject to subsection (2), to be performed by 14
the Supreme Court. 15
(2) If-- 16
(a) an arbitration agreement provides that the District Court 17
is to have jurisdiction under this Act; or 18
(b) the parties to an arbitration agreement have agreed in 19
writing that the District Court is to have jurisdiction 20
under this Act and that agreement is in force; 21
the functions are to be performed, in relation to that 22
agreement, by the District Court. 23
Note-- 24
This section differs from the Model Law to the extent that it relates to 25
functions conferred on the Court with respect to domestic commercial 26
arbitrations that are not referred to in the Model Law. 27
Page 13
Commercial Arbitration Bill 2011
Part 2 Arbitration agreement
[s 7]
Part 2 Arbitration agreement 1
7 Definition and form of arbitration agreement (cf Model Law Art 2
7) 3
(1) An arbitration agreement is an agreement by the parties to 4
submit to arbitration all or certain disputes which have arisen 5
or which may arise between them in respect of a defined legal 6
relationship, whether contractual or not. 7
(2) An arbitration agreement may be in the form of an arbitration 8
clause in a contract or in the form of a separate agreement. 9
(3) The arbitration agreement must be in writing. 10
(4) An arbitration agreement is in writing if its content is recorded 11
in any form, whether or not the arbitration agreement or 12
contract was concluded orally, by conduct or by other means. 13
(5) The requirement that an arbitration agreement be in writing is 14
met by an electronic communication if the information 15
contained in it is accessible so as to be useable for subsequent 16
reference. 17
(6) In this section-- 18
data message means information generated, sent, received or 19
stored by electronic, magnetic, optical or similar means, 20
including, but not limited to, electronic data interchange 21
(EDI), electronic mail, telegram, telex or telecopy. 22
electronic communication means any communication that the 23
parties make by means of data messages. 24
(7) Furthermore, an arbitration agreement is in writing if it is 25
contained in an exchange of statements of claim and defence 26
in which the existence of an agreement is alleged by one party 27
and not denied by the other. 28
(8) The reference in a contract to any document containing an 29
arbitration clause constitutes an arbitration agreement in 30
writing, provided that the reference is such as to make that 31
clause part of the contract. 32
Page 14
Commercial Arbitration Bill 2011
Part 3 Composition of arbitral tribunal
[s 8]
Editor's note-- 1
This section is substantially the same as Option 1 set out in Art 7 of the 2
Model Law. 3
8 Arbitration agreement and substantive claim before court 4
(cf Model Law Art 8) 5
(1) A court before which an action is brought in a matter which is 6
the subject of an arbitration agreement must, if a party so 7
requests not later than when submitting the party's first 8
statement on the substance of the dispute, refer the parties to 9
arbitration unless it finds that the agreement is null and void, 10
inoperative or incapable of being performed. 11
(2) Where an action referred to in subsection (1) has been 12
brought, arbitral proceedings may nevertheless be 13
commenced or continued, and an award may be made, while 14
the issue is pending before the court. 15
9 Arbitration agreement and interim measures by court (cf 16
Model Law Art 9) 17
It is not incompatible with an arbitration agreement for a party 18
to request, before or during arbitral proceedings, from a court 19
an interim measure of protection and for a court to grant the 20
measure. 21
Part 3 Composition of arbitral tribunal 22
10 Number of arbitrators (cf Model Law Art 10) 23
(1) The parties are free to determine the number of arbitrators. 24
(2) Failing such determination, the number of arbitrators is to be 25
one. 26
Editor's note-- 27
Subsection (2) differs from Art 10 (2) of the Model Law which provides 28
for 3 arbitrators if the parties do not determine the number of arbitrators. 29
Page 15
Commercial Arbitration Bill 2011
Part 3 Composition of arbitral tribunal
[s 11]
11 Appointment of arbitrators (cf Model Law Art 11) 1
(1) [omitted] 2
Editor's note-- 3
Art 11(1) of the Model Law (which provides that no person is precluded 4
by nationality from acting as an arbitrator unless otherwise agreed by 5
the parties) has been omitted. 6
(2) The parties are free to agree on a procedure of appointing the 7
arbitrator or arbitrators, subject to the provisions of 8
subsections (4) and (5). 9
(3) Failing such agreement-- 10
(a) in an arbitration with 3 arbitrators and 2 parties, each 11
party is to appoint one arbitrator, and the 2 arbitrators so 12
appointed are to appoint the third arbitrator and if a 13
party fails to appoint the arbitrator within 30 days of 14
receipt of a request to do so from the other party, or if 15
the 2 arbitrators fail to agree on the third arbitrator 16
within 30 days of their appointment, the appointment is 17
to be made, on the request of a party, by the Court; and 18
(b) in an arbitration with a sole arbitrator, if the parties are 19
unable to agree on the arbitrator, an arbitrator is to be 20
appointed, on the request of a party, by the Court; and 21
(c) in an arbitration with 2, 4 or more arbitrators or with 3 22
arbitrators and more than 2 parties the appointment is to 23
be made, at the request of a party, by the Court. 24
(4) Where, under an appointment procedure agreed on by the 25
parties-- 26
(a) a party fails to act as required under the procedure; or 27
(b) the parties, or 2 or more arbitrators, are unable to reach 28
an agreement expected of them under the procedure; or 29
(c) a third party, including an institution, fails to perform 30
any function entrusted to it under the procedure; 31
any party may request the Court to take the necessary 32
measure, unless the agreement on the appointment procedure 33
provides other means for securing the appointment. 34
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Commercial Arbitration Bill 2011
Part 3 Composition of arbitral tribunal
[s 12]
(5) A decision within the limits of the Court's authority on a 1
matter entrusted by subsection (3) or (4) to the Court is final. 2
(6) The Court, in appointing an arbitrator, is to have due regard to 3
any qualifications required of the arbitrator by the agreement 4
of the parties and to such considerations as are likely to secure 5
the appointment of an independent and impartial arbitrator. 6
Editor's note-- 7
This section (other than subsections (3)(c), (5) and (6)), is substantially 8
the same as Art 11 of the Model Law. 9
Subsection (3)(c) is added to cover the contingency of the parties failing 10
to agree on the procedure to appoint arbitrators in certain circumstances 11
not covered by the Model Law as incorporated in this Act. It is based on 12
clause 11(6) of Schedule 1 to the Arbitration Act 1996 (NZ). 13
Subsection (5) makes it clear that, although a decision of the Court is 14
generally final, review of a decision of the Court that is not made within 15
the limits of its powers and functions is not precluded. 16
Subsection (6) does not include the requirement in Art 11(5) of the 17
Model Law that the Court take into account the advisability of 18
appointing an arbitrator of a nationality other than those of the parties in 19
appointing a sole or third arbitrator as this is not relevant in the context 20
of domestic commercial arbitrations. 21
12 Grounds for challenge (cf Model Law Art 12) 22
(1) When a person is approached in connection with the person's 23
possible appointment as an arbitrator, the person must 24
disclose any circumstances likely to give rise to justifiable 25
doubts as to the person's impartiality or independence. 26
(2) An arbitrator, from the time of the arbitrator's appointment 27
and throughout the arbitral proceedings, must without delay 28
disclose any circumstances of the kind referred to in 29
subsection (1) to the parties unless they have already been 30
informed of them by the arbitrator. 31
(3) An arbitrator may be challenged only if circumstances exist 32
that give rise to justifiable doubts as to the arbitrator's 33
impartiality or independence, or if the arbitrator does not 34
possess qualifications agreed to by the parties. 35
Page 17
Commercial Arbitration Bill 2011
Part 3 Composition of arbitral tribunal
[s 13]
(4) A party may challenge an arbitrator appointed by the party, or 1
in whose appointment the party has participated, only for 2
reasons of which the party becomes aware after the 3
appointment has been made. 4
(5) For the purposes of subsection (1), there are justifiable doubts 5
as to the impartiality or independence of a person approached 6
in connection with a possible appointment as arbitrator only if 7
there is a real danger of bias on the part of the person in 8
conducting the arbitration. 9
(6) For the purposes of subsection (3), there are justifiable doubts 10
as to the impartiality or independence of an arbitrator only if 11
there is a real danger of bias on the part of the arbitrator in 12
conducting the arbitration. 13
Editor's note-- 14
This section (other than subsections (5) and (6)), is substantially the 15
same as Art 12 of the Model Law. 16
13 Challenge procedure (cf Model Law Art 13) 17
(1) The parties are free to agree on a procedure for challenging an 18
arbitrator, subject to subsection (4). 19
(2) Failing such agreement, a party who intends to challenge an 20
arbitrator must, within 15 days after becoming aware of the 21
constitution of the arbitral tribunal or after becoming aware of 22
any circumstance referred to in section 12(3), send a written 23
statement of the reasons for the challenge to the arbitral 24
tribunal. 25
(3) Unless the challenged arbitrator withdraws from office or the 26
other party agrees to the challenge, the arbitral tribunal must 27
decide on the challenge. 28
(4) If a challenge under any procedure agreed on by the parties or 29
under the procedure of subsections (2) and (3) is not 30
successful, the challenging party may request, within 30 days 31
after having received notice of the decision rejecting the 32
challenge, the Court to decide on the challenge. 33
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Commercial Arbitration Bill 2011
Part 3 Composition of arbitral tribunal
[s 14]
(5) A decision of the Court under subsection (4) that is within the 1
limits of the authority of the Court is final. 2
(6) While a request under subsection (4) is pending, the arbitral 3
tribunal, including the challenged arbitrator, may continue the 4
arbitral proceedings and make an award. 5
Editor's note-- 6
This section (other than subsection (5)), is substantially the same as Art 7
13 of the Model Law. 8
Subsection (5) makes it clear that, although a decision of the Court is 9
generally final, review of a decision of the Court that is not made within 10
the limits of its powers and functions is not precluded. 11
14 Failure or impossibility to act (cf Model Law Art 14) 12
(1) If an arbitrator becomes in law or in fact unable to perform the 13
arbitrator's functions or for other reasons fails to act without 14
undue delay, the arbitrator's mandate terminates if the 15
arbitrator withdraws from office or if the parties agree on the 16
termination. 17
(2) Otherwise, if a controversy remains concerning any of these 18
grounds, any party may request the Court to decide on the 19
termination of the mandate. 20
(3) A decision of the Court under subsection (2) that is within the 21
limits of the authority of the Court is final. 22
(4) If, under this section or section 13(3), an arbitrator withdraws 23
from office or a party agrees to the termination of the mandate 24
of an arbitrator, this does not imply acceptance of the validity 25
of any ground referred to in this section or section 12(3). 26
Editor's note-- 27
This section (other than subsection (3)), is substantially the same as Art 28
14 of the Model Law. 29
Subsection (3) makes it clear that, although a decision of the Court is 30
generally final, review of a decision of the Court that is not made within 31
the limits of its powers and functions is not precluded. 32
Page 19
Commercial Arbitration Bill 2011
Part 4 Jurisdiction of arbitral tribunal
[s 15]
15 Appointment of substitute arbitrator (cf Model Law Art 15) 1
Where the mandate of an arbitrator terminates under section 2
13 or 14 or because of the arbitrator's withdrawal from office 3
for any other reason or because of the revocation of the 4
arbitrator's mandate by agreement of the parties or in any 5
other case of termination of the arbitrator's mandate, a 6
substitute arbitrator must be appointed according to the rules 7
that were applicable to the appointment of the arbitrator being 8
replaced. 9
Part 4 Jurisdiction of arbitral tribunal 10
16 Competence of arbitral tribunal to rule on its jurisdiction 11
(cf Model Law Art 16) 12
(1) The arbitral tribunal may rule on its own jurisdiction, 13
including any objections with respect to the existence or 14
validity of the arbitration agreement. 15
(2) For that purpose, an arbitration clause which forms part of a 16
contract is to be treated as an agreement independent of the 17
other terms of the contract. 18
(3) A decision by the arbitral tribunal that the contract is null and 19
void does not of itself entail the invalidity of the arbitration 20
clause. 21
Editor's note-- 22
The Model Law provides that such a decision does not `ipso jure' entail 23
the invalidity of the arbitration clause. 24
(4) A plea that the arbitral tribunal does not have jurisdiction must 25
be raised not later than the submission of the statement of 26
defence. 27
(5) A party is not precluded from raising such a plea by the fact 28
that the party has appointed, or participated in the 29
appointment of, an arbitrator. 30
Page 20
Commercial Arbitration Bill 2011
Part 4 Jurisdiction of arbitral tribunal
[s 16]
(6) A plea that the arbitral tribunal is exceeding the scope of its 1
authority must be raised as soon as the matter alleged to be 2
beyond the scope of its authority is raised during the arbitral 3
proceedings. 4
(7) The arbitral tribunal may, in the case of a plea referred to in 5
subsection (4) or (6), admit a later plea if it considers the 6
delay justified. 7
(8) The arbitral tribunal may rule on a plea referred to in 8
subsection (4) or (6) either as a preliminary question or in an 9
award on the merits. 10
(9) If the arbitral tribunal rules as a preliminary question that it 11
has jurisdiction, any party may request, within 30 days after 12
having received notice of that ruling, the Court to decide the 13
matter. 14
(10) A decision of the Court under subsection (9) that is within the 15
limits of the authority of the Court is final. 16
(11) While a request under subsection (9) is pending, the arbitral 17
tribunal may continue the arbitral proceedings and make an 18
award. 19
Editor's note-- 20
This section (other than subsection (10)), is substantially the same as 21
Art 16 of the Model Law. 22
Subsection (10) makes it clear that, although a decision of the Court is 23
generally final, review of a decision of the Court that is not made within 24
the limits of its powers and functions is not precluded. 25
Page 21
Commercial Arbitration Bill 2011
Part 4A Interim measures
[s 17]
Part 4A Interim measures 1
Division 1 Interim measures 2
17 Power of arbitral tribunal to order interim measures (cf 3
Model Law Art 17) 4
(1) Unless otherwise agreed by the parties, the arbitral tribunal 5
may, at the request of a party, grant interim measures. 6
(2) An interim measure is any temporary measure, whether in the 7
form of an award or in another form, by which, at any time 8
prior to the issuance of the award by which the dispute is 9
finally decided, the arbitral tribunal orders a party to-- 10
(a) maintain or restore the status quo pending determination 11
of the dispute; or 12
(b) take action that would prevent, or refrain from taking 13
action that is likely to cause, current or imminent harm 14
or prejudice to the arbitral process itself; or 15
(c) provide a means of preserving assets out of which a 16
subsequent award may be satisfied; or 17
(d) preserve evidence that may be relevant and material to 18
the resolution of the dispute. 19
(3) Without limiting subsection (2), the arbitral tribunal may 20
make orders with respect to any of the following-- 21
(a) security for costs; 22
(b) discovery of documents and interrogatories; 23
(c) giving of evidence by affidavit; 24
(d) the inspection of any property which is or forms part of 25
the subject-matter of the dispute; 26
(e) the taking of photographs of any property which is or 27
forms part of the subject-matter of the dispute; 28
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Commercial Arbitration Bill 2011
Part 4A Interim measures
[s 17A]
(f) samples to be taken from, or any observation to be made 1
of or experiment conducted on, any property which is or 2
forms part of the subject-matter of the dispute; 3
(g) dividing, recording and strictly enforcing the time 4
allocated for a hearing between the parties (a stop clock 5
arbitration). 6
Editor's note-- 7
Subsections (1) and (2) are substantially the same as Art 17 of the 8
Model Law. There is no equivalent subsection (3) in the Model Law. 9
17A Conditions for granting interim measures (cf Model Law Art 10
17A) 11
(1) The party requesting an interim measure under section 12
17(2)(a), (b) or (c) must satisfy the arbitral tribunal that-- 13
(a) harm not adequately reparable by an award of damages 14
is likely to result if the measure is not ordered, and that 15
harm substantially outweighs the harm that is likely to 16
result to the party against whom the measure is directed 17
if the measure is granted; and 18
(b) there is a reasonable possibility that the requesting party 19
will succeed on the merits of the claim. 20
(2) The determination on the possibility referred to in subsection 21
(1)(b) does not affect the discretion of the arbitral tribunal in 22
making any subsequent determination. 23
(3) With regard to a request for an interim measure under section 24
17(2)(d), the requirements in subsection (1)(a) and (b) and 25
subsection (2) apply only to the extent the arbitral tribunal 26
considers appropriate. 27
Division 2 Preliminary orders 28
17B Applications for preliminary orders and conditions for 29
granting preliminary orders (cf Model Law Art 17B) 30
[omitted] 31
Page 23
Commercial Arbitration Bill 2011
Part 4A Interim measures
[s 17C]
Note-- 1
Art 17B of the Model Law, which provides for ex parte requests for 2
interim measures together with applications for preliminary orders 3
directing parties not to frustrate the interim measures, has been omitted. 4
17C Specific regime for preliminary orders (cf Model Law Art 17) 5
[omitted] 6
Note-- 7
Art 17C of the Model Law, which contains safeguards for the party 8
against whom a preliminary order is directed under Art 17B, is omitted 9
as a consequence of the omission of Art 17B. 10
Division 3 Provisions applicable to interim 11
measures 12
17D Modification, suspension, termination (cf Model Law Art 17D) 13
The arbitral tribunal may modify, suspend or terminate an 14
interim measure it has granted, on application of any party or, 15
in exceptional circumstances and on prior notice to the parties, 16
on the arbitral tribunal's own initiative. 17
Editor's note-- 18
This section is substantially the same as Art 17D of the Model Law but 19
contains no reference to preliminary orders as a consequence of this Act 20
not including an equivalent of Arts 17B and 17C of the Model Law. 21
17E Provision of security (cf Model Law Art 17E) 22
(1) The arbitral tribunal may require the party requesting an 23
interim measure to provide appropriate security in connection 24
with the measure. 25
(2) [omitted] 26
Editor's note-- 27
Subsection (1) is the same as Art 17E(1) of the Model Law. Art 17E(2) 28
is omitted as a consequence of this Act not including equivalents to Arts 29
17B and 17C of the Model Law. 30
Page 24
Commercial Arbitration Bill 2011
Part 4A Interim measures
[s 17F]
17F Disclosure (cf Model Law Art 17F) 1
(1) The arbitral tribunal may require any party promptly to 2
disclose any material change in the circumstances on the basis 3
of which the measure was requested or granted. 4
(2) [omitted] 5
Editor's note-- 6
Subsection (1) is the same as Art 17F(1) of the Model Law. Art 17F(2) 7
is omitted as a consequence of this Act not including equivalents to Arts 8
17B and 17C of the Model Law. 9
17G Costs and damages (cf Model Law Art 17G) 10
(1) The party requesting an interim measure is liable for any costs 11
and damages caused by the measure to any party if the arbitral 12
tribunal later determines that, in the circumstances, the 13
measure should not have been granted. 14
(2) The arbitral tribunal may award such costs and damages at 15
any point during the proceedings. 16
Editor's note-- 17
This section is substantially the same as Art 17G of the Model Law but 18
the reference to applications for preliminary orders is omitted as a 19
consequence of this Act not including equivalents to Arts 17B and 17C 20
of the Model Law. 21
Division 4 Recognition and enforcement of 22
interim measures 23
17H Recognition and enforcement (cf Model Law Art 17H) 24
(1) An interim measure issued by an arbitral tribunal under the 25
law of this State is to be recognised as binding and, unless 26
otherwise provided by the arbitral tribunal, enforced on 27
application to the Court, subject to the provisions of section 28
17I. 29
(2) An interim measure issued by an arbitral tribunal under the 30
law of another State or Territory is to be recognised as binding 31
Page 25
Commercial Arbitration Bill 2011
Part 4A Interim measures
[s 17I]
in this State and, unless otherwise provided by the arbitral 1
tribunal, enforced on application to the Court, irrespective of 2
the State or Territory in which it was issued, subject to the 3
provisions of section 17I. 4
(3) The party who is seeking or has obtained recognition or 5
enforcement of an interim measure must promptly inform the 6
Court of any termination, suspension or modification of that 7
interim measure. 8
(4) The Court may, if it considers it proper, order the requesting 9
party to provide appropriate security if the arbitral tribunal has 10
not already made a determination with respect to security or 11
where such a decision is necessary to protect the rights of 12
third parties. 13
Editor's note-- 14
This section differs from Art 17H of the Model Law to the extent 15
necessary to apply Art 17H as incorporated in this Act in the context of 16
domestic commercial arbitrations. 17
17I Grounds for refusing recognition or enforcement (cf Model 18
Law Art 17I) 19
(1) Recognition or enforcement of an interim measure may be 20
refused only-- 21
(a) at the request of the party against whom it is invoked if 22
the Court is satisfied that-- 23
(i) such a refusal is warranted on the grounds set out 24
in section 36(1)(a)(i), (ii), (iii) or (iv); or 25
(ii) the arbitral tribunal's decision with respect to the 26
provision of security in connection with the interim 27
measure issued by the arbitral tribunal has not been 28
complied with; or 29
(iii) the interim measure has been terminated or 30
suspended by the arbitral tribunal or, where so 31
empowered, by the court of the State or Territory in 32
which the arbitration takes place or under the law 33
of which that interim measure was granted; or 34
Page 26
Commercial Arbitration Bill 2011
Part 4A Interim measures
[s 17J]
(b) if the Court finds that-- 1
(i) the interim measure is incompatible with the 2
powers conferred on the Court unless the Court 3
decides to reformulate the interim measure to the 4
extent necessary to adapt it to its own powers and 5
procedures for the purposes of enforcing that 6
interim measure and without modifying its 7
substance; or 8
(ii) any of the grounds set out in section 36(1)(b)(i) or 9
(ii) apply to the recognition and enforcement of the 10
interim measure. 11
(2) Any determination made by the Court on any ground in 12
subsection (1) is effective only for the purposes of the 13
application to recognise and enforce the interim measure. 14
(3) The Court must not, in making a determination with respect to 15
the recognition or enforcement sought, undertake a review of 16
the substance of the interim measure. 17
Editor's note-- 18
This section is substantially the same as Art 17I of the Model Law but 19
has been modified to the extent necessary to apply Art 17I as 20
incorporated in this Act in the context of domestic commercial 21
arbitrations. 22
Division 5 Court-ordered interim measures 23
17J Court-ordered interim measures (cf Model Law Art 17J) 24
(1) The Court has the same power of issuing an interim measure 25
in relation to arbitration proceedings as it has in relation to 26
proceedings in courts. 27
(2) The Court is to exercise the power in accordance with its own 28
procedures taking into account the specific features of a 29
domestic commercial arbitration. 30
Editor's note-- 31
This section is substantially the same as Art 17J of the Model Law but 32
has been modified to the extent necessary to apply Art 17J as 33
Page 27
Commercial Arbitration Bill 2011
Part 5 Conduct of arbitral proceedings
[s 18]
incorporated in this Act in the context of domestic commercial 1
arbitrations. 2
Part 5 Conduct of arbitral 3
proceedings 4
18 Equal treatment of parties (cf Model Law Art 18) 5
The parties must be treated with equality and each party must 6
be given a reasonable opportunity of presenting the party's 7
case. 8
Editor's note-- 9
This section differs from the Model Law to the extent that it requires a 10
party to be given a `reasonable', instead of `full', opportunity of 11
presenting the party's case. 12
19 Determination of rules of procedure (cf Model Law Art 19) 13
(1) Subject to the provisions of this Act, the parties are free to 14
agree on the procedure to be followed by the arbitral tribunal 15
in conducting the proceedings. 16
(2) Failing such agreement, the arbitral tribunal may, subject to 17
the provisions of this Act, conduct the arbitration in such 18
manner as it considers appropriate. 19
(3) The power conferred on the arbitral tribunal includes the 20
power to determine the admissibility, relevance, materiality 21
and weight of any evidence. 22
(4) The power conferred on the tribunal also includes the power 23
to make orders or give directions for the examination of a 24
party or witness on oath or affirmation. 25
(5) For the purposes of the exercise of the power referred to in 26
subsection (4), the arbitral tribunal may administer any 27
necessary oath or take any necessary affirmation. 28
Page 28
Commercial Arbitration Bill 2011
Part 5 Conduct of arbitral proceedings
[s 20]
(6) An order made or direction given by an arbitral tribunal in the 1
course of arbitral proceedings is, by leave of the Court, 2
enforceable in the same manner as if it were an order of the 3
Court and, where leave is so given, judgment may be entered 4
in terms of the order or direction. 5
Editor's note-- 6
This section (other than subsections (4) to (6)), is substantially the same 7
as Art 19 of the Model Law. Subsections (4) to (6) elaborate on the 8
powers conferred on arbitral tribunals. 9
20 Place of arbitration (cf Model Law Art 20) 10
(1) The parties are free to agree on the place of arbitration 11
(whether in Queensland or elsewhere). 12
Editor's note-- 13
Subsection (1) is substantially the same as Art 20(1) of the Model Law 14
but is modified to make it clear that the reference to the place of 15
arbitration is not limited by the Acts Interpretation Act 1954, section 35 16
to a place in this State. 17
(2) Failing such agreement, the place of arbitration is to be 18
determined by the arbitral tribunal having regard to the 19
circumstances of the case, including the convenience of the 20
parties. 21
(3) Despite subsection (1), the arbitral tribunal may, unless 22
otherwise agreed by the parties, meet at any place (whether or 23
not in Queensland) it considers appropriate for consultation 24
among its members, for hearing witnesses, experts or the 25
parties, or for inspection of goods, other property or 26
documents. 27
21 Commencement of arbitral proceedings (cf Model Law Art 21) 28
Unless otherwise agreed by the parties, the arbitral 29
proceedings in respect of a particular dispute commence on 30
the date on which a request for that dispute to be referred to 31
arbitration is received by the respondent. 32
Page 29
Commercial Arbitration Bill 2011
Part 5 Conduct of arbitral proceedings
[s 22]
22 Language (cf Model Law Art 22) 1
(1) The parties are free to agree on the language or languages to 2
be used in the arbitral proceedings. 3
(2) Failing agreement as referred to in subsection (1), the arbitral 4
tribunal is to determine the language or languages to be used 5
in the proceedings. 6
(3) This agreement or determination, unless otherwise specified 7
in the agreement or determination, is to apply to any written 8
statement by a party, any hearing and any award, decision or 9
other communication by the arbitral tribunal. 10
(4) The arbitral tribunal may order that any documentary 11
evidence is to be accompanied by a translation into the 12
language or languages agreed on by the parties or determined 13
by the arbitral tribunal. 14
23 Statements of claim and defence (cf Model Law Art 23) 15
(1) Subject to any contrary agreement of the parties or a direction 16
of the arbitral tribunal, within the period of time agreed by the 17
parties or determined by the arbitral tribunal, the claimant 18
must state the facts supporting his or her claim, the points at 19
issue and the relief or remedy sought, and the respondent must 20
state the respondent's defence in respect of these particulars, 21
unless the parties have otherwise agreed as to the required 22
elements of such statements. 23
(2) The parties may submit with their statements all documents 24
they consider to be relevant or may add a reference to the 25
documents or other evidence they will submit. 26
(3) Unless otherwise agreed by the parties, either party may 27
amend or supplement the party's claim or defence during the 28
course of the arbitral proceedings, unless the arbitral tribunal 29
considers it inappropriate to allow such amendment having 30
regard to the delay in making it. 31
(4) Subsection (1) does not require a statement by a claimant or 32
respondent to be in a particular form. 33
Editor's note-- 34
Page 30
Commercial Arbitration Bill 2011
Part 5 Conduct of arbitral proceedings
[s 24]
This section (other than subsections (1) and (4)), is substantially the 1
same as Art 23 of the Model Law. 2
Subsection (1) has effect subject to any contrary agreement of the 3
parties or direction of the arbitral tribunal. 4
Subsection (4) makes it clear that it is not necessary to use a particular 5
form of statement of claim or defence. 6
24 Hearings and written proceedings (cf Model Law Art 24) 7
(1) Subject to any contrary agreement by the parties, the arbitral 8
tribunal is to decide whether to hold oral hearings for the 9
presentation of evidence or for oral argument, or whether the 10
proceedings are to be conducted on the basis of documents 11
and other materials. 12
(2) However, unless the parties have agreed that no hearings are 13
to be held, the arbitral tribunal must hold such hearings at an 14
appropriate stage of the proceedings, if so requested by a 15
party. 16
(3) The parties must be given sufficient advance notice of any 17
hearing and of any meeting of the arbitral tribunal for the 18
purposes of inspection of goods, other property or documents. 19
(4) All statements, documents or other information supplied to 20
the arbitral tribunal by one party must be communicated to the 21
other party. 22
(5) Also, any expert report or evidentiary document on which the 23
arbitral tribunal may rely in making its decision must be 24
communicated to the parties. 25
24A Representation 26
(1) The parties may appear or act in person, or may be 27
represented by another person of their choice, in any oral 28
hearings under section 24. 29
(2) A person who is not admitted to practise as a legal practitioner 30
in Queensland does not commit an offence under or breach 31
the provisions of the Legal Profession Act 2007 or any other 32
Page 31
Commercial Arbitration Bill 2011
Part 5 Conduct of arbitral proceedings
[s 24B]
Act merely by representing a party in arbitral proceedings in 1
this State. 2
Editor's note-- 3
There is no equivalent of this section in the Model Law. 4
24B General duties of parties 5
(1) The parties must do all things necessary for the proper and 6
expeditious conduct of the arbitral proceedings. 7
(2) Without limitation, the parties must-- 8
(a) comply without undue delay with any order or direction 9
of the arbitral tribunal with respect to any procedural, 10
evidentiary or other matter; and 11
(b) take without undue delay any necessary steps to obtain a 12
decision (if required) of the Court with respect to any 13
function conferred on the Court under section 6. 14
(3) A party must not wilfully do or cause to be done any act to 15
delay or prevent an award being made. 16
Editor's note-- 17
There is no equivalent of this section in the Model Law. 18
25 Default of a party (cf Model Law Art 25) 19
(1) Unless otherwise agreed by the parties, if, without showing 20
sufficient cause-- 21
(a) the claimant fails to communicate the claimant's 22
statement of claim in accordance with section 23
23(1)--the arbitral tribunal may terminate the 24
proceedings; or 25
(b) the respondent fails to communicate the respondent's 26
statement of defence in accordance with section 27
23(1)--the arbitral tribunal may continue the 28
proceedings without treating such failure in itself as an 29
admission of the claimant's allegations; or 30
Page 32
Commercial Arbitration Bill 2011
Part 5 Conduct of arbitral proceedings
[s 25]
(c) any party fails to appear at a hearing or to produce 1
documentary evidence--the arbitral tribunal may 2
continue the proceedings and make the award on the 3
evidence before it. 4
(2) Unless otherwise agreed by the parties, if a party fails to do 5
any other thing necessary for the proper and expeditious 6
conduct of the arbitration the arbitral tribunal-- 7
(a) if satisfied that there has been inordinate and 8
inexcusable delay on the part of the claimant in pursuing 9
the claim--may make an award dismissing the claim or 10
may give directions (with or without conditions) for the 11
speedy determination of the claim; or 12
(b) if without sufficient cause a party fails to comply with 13
any order or direction of the arbitral tribunal--may 14
make an order requiring the party to comply with the 15
terms of the earlier order or direction within the period 16
specified by the arbitral tribunal (a peremptory order). 17
(3) If a party fails to comply with a peremptory order, the arbitral 18
tribunal may do any of the following-- 19
(a) direct that the party in default is not to be entitled to rely 20
on any allegation or material which was the subject 21
matter of the peremptory order; 22
(b) draw such adverse inferences from the failure to comply 23
as the circumstances justify; 24
(c) proceed to an award on the basis of any materials that 25
have been properly provided to the arbitral tribunal; 26
(d) without limiting section 33B(4), in making an award 27
give any direction or order that it thinks fit as to the 28
payment of the costs of the arbitration incurred in 29
consequence of the non-compliance. 30
Editor's note-- 31
Subsection (1) is substantially the same as Art 25 of the Model Law. 32
There are no equivalents to the other provisions of this section in the 33
Model Law. 34
Page 33
Commercial Arbitration Bill 2011
Part 5 Conduct of arbitral proceedings
[s 26]
26 Expert appointed by arbitral tribunal (cf Model Law Art 26) 1
(1) Unless otherwise agreed by the parties, the arbitral tribunal-- 2
(a) may appoint one or more experts to report to it on 3
specific issues to be determined by the arbitral tribunal; 4
and 5
(b) may require a party to give the expert any relevant 6
information or to produce, or to provide access to, any 7
relevant documents, goods or other property for the 8
expert's inspection. 9
(2) Unless otherwise agreed by the parties, if a party so requests 10
or if the arbitral tribunal considers it necessary, the expert 11
must, after delivery of the expert's written or oral report, 12
participate in a hearing where the parties have the opportunity 13
to put questions to the expert and present expert witnesses in 14
order to testify on the points at issue. 15
27 Court assistance in taking evidence (cf Model Law Art 27) 16
(1) The arbitral tribunal or a party with the approval of the arbitral 17
tribunal may request from the Court assistance in taking 18
evidence. 19
(2) The Court may execute the request within its competence and 20
subject to and in accordance with rules of court. 21
Editor's note-- 22
This section is substantially the same as Art 27 of the Model Law but 23
the reference to rules of court has been amended for consistency with 24
sections 27A and 27B and a request for assistance may only be made to 25
the Court, not any competent court. 26
27A Parties may obtain subpoenas 27
(1) The Court may, on the application of any party, and subject to 28
and in accordance with rules of court, issue a subpoena 29
requiring a person-- 30
(a) to attend for examination before the arbitral tribunal; or 31
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(b) to produce to the arbitral tribunal the documents 1
specified in the subpoena; or 2
(c) to do both of those things. 3
(2) A party may only make an application to the Court under 4
subsection (1) with the permission of the arbitral tribunal. 5
(3) A person must not be compelled under any subpoena issued in 6
accordance with subsection (1) to answer any question or 7
produce any document that the person could not be compelled 8
to answer or produce in a proceeding before the Court. 9
Editor's note-- 10
There is no equivalent to this section in the Model Law. 11
27B Refusal or failure to attend before arbitral tribunal or to 12
produce document 13
(1) For the purposes of this section, a person is a person in 14
default in relation to proceedings before an arbitral tribunal 15
under an arbitration agreement if the person-- 16
(a) refuses or fails to attend before the arbitral tribunal for 17
examination when required under a subpoena or by the 18
arbitral tribunal to do so; or 19
(b) refuses or fails to produce a document that the person is 20
required under a subpoena or by the arbitral tribunal to 21
produce; or 22
(c) when appearing as a witness before the arbitral 23
tribunal-- 24
(i) refuses or fails to take an oath or to make an 25
affirmation or affidavit when required by the 26
arbitral tribunal to do so; or 27
(ii) refuses or fails to answer a question that the 28
witness is required by the arbitral tribunal to 29
answer; or 30
(d) refuses or fails to do any other thing which the arbitral 31
tribunal may require. 32
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[s 27B]
(2) Unless otherwise agreed by the parties, the Court may, on the 1
application of a party or the arbitral tribunal, order a person in 2
default to do any or all of the following-- 3
(a) attend the Court to be examined as a witness; 4
(b) produce the relevant document to the Court; 5
(c) do the relevant thing. 6
(3) A party may only make an application to the Court under 7
subsection (2) with the permission of the arbitral tribunal. 8
(4) The Court must not make an order under subsection (2) in 9
relation to a person who is not a party to the arbitral 10
proceedings unless-- 11
(a) before the order is made, the person is given an 12
opportunity to make representations to the Court; and 13
(b) the Court is satisfied that it is reasonable in all the 14
circumstances to make the order. 15
(5) A person must not be compelled under an order made under 16
subsection (2) to answer any question or produce any 17
document which the person could not be compelled to answer 18
or produce in a proceeding before the Court. 19
(6) If the Court makes an order under subsection (2), it may in 20
addition make orders for the transmission to the arbitral 21
tribunal of any of the following-- 22
(a) a record of any evidence given under the order; 23
(b) any document produced under the order or a copy of any 24
such document; 25
(c) particulars of any thing done under the order. 26
(7) Any evidence, document or thing transmitted under 27
subsection (6) is taken to have been given, produced or done 28
(as the case requires) in the course of the arbitral proceedings. 29
Editor's note-- 30
There is no equivalent of this section in the Model Law. 31
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[s 27C]
27C Consolidation of arbitral proceedings 1
(1) Unless otherwise agreed by the parties, a party to arbitral 2
proceedings may apply to the arbitral tribunal for an order 3
under this section in relation to those proceedings and other 4
arbitral proceedings (whether before that tribunal or another 5
tribunal or other tribunals) on the ground that-- 6
(a) a common question of law or fact arises in all those 7
proceedings; or 8
(b) the rights to relief claimed in all those proceedings are 9
in respect of, or arise out of, the same transaction or 10
series of transactions; or 11
(c) for some other reason specified in the application, it is 12
desirable that an order be made under this section. 13
(2) In this section, 2 or more arbitral proceedings that are the 14
subject of an application under subsection (1) are called the 15
related proceedings. 16
(3) The following orders may be made under this section in 17
relation to the related proceedings-- 18
(a) that the proceedings be consolidated on terms specified 19
in the order; 20
(b) that the proceedings be heard at the same time or in a 21
sequence specified in the order; 22
(c) that any of the proceedings be stayed pending the 23
determination of any of the other proceedings. 24
(4) If all the related proceedings are being conducted by the same 25
tribunal, the tribunal may make any order under this section 26
that it thinks fit in relation to those proceedings and, if an 27
order is made, the proceedings must be dealt with in 28
accordance with the order. 29
(5) If 2 or more arbitral tribunals are conducting the related 30
proceedings-- 31
(a) the tribunal that received the application must 32
communicate the substance of the application to the 33
other tribunals concerned; and 34
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[s 27D]
(b) the tribunals must, as soon as practicable, deliberate 1
jointly on the application. 2
(6) If the tribunals agree, after deliberation on the application, 3
that a particular order under this section should be made in 4
relation to the related proceedings-- 5
(a) the tribunals are to jointly make the order; and 6
(b) the related proceedings are to be dealt with in 7
accordance with the order; and 8
(c) if the order is that the related proceedings be 9
consolidated--the arbitrator or arbitrators for the 10
purposes of the consolidated proceedings are to be 11
appointed, in accordance with sections 10 and 11, from 12
the members of the tribunals. 13
(7) If the tribunals are unable to make an order under subsection 14
(6), the related proceedings are to proceed as if no application 15
has been made under subsection (1). 16
(8) Before making an order under this section, the arbitral tribunal 17
or tribunals concerned must take into account whether any 18
party would or might suffer substantial hardship if the order 19
were made. 20
(9) This section does not prevent the parties to related 21
proceedings from agreeing to consolidate them and taking 22
such steps as are necessary to effect that consolidation. 23
Editor's note-- 24
There is no equivalent to this section in the Model Law. 25
27D Power of arbitrator to act as mediator, conciliator or other 26
non-arbitral intermediary 27
(1) An arbitrator may act as a mediator in proceedings relating to 28
a dispute between the parties to an arbitration agreement 29
(mediation proceedings) if-- 30
(a) the arbitration agreement provides for the arbitrator to 31
act as mediator in mediation proceedings (whether 32
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[s 27D]
before or after proceeding to arbitration, and whether or 1
not continuing with the arbitration); or 2
(b) each party has consented in writing to the arbitrator so 3
acting. 4
(2) An arbitrator acting as a mediator-- 5
(a) may communicate with the parties collectively or 6
separately; and 7
(b) must treat information obtained by the arbitrator from a 8
party with whom he or she communicates separately as 9
confidential, unless that party otherwise agrees or unless 10
the provisions of the arbitration agreement relating to 11
mediation proceedings otherwise provide. 12
(3) Mediation proceedings in relation to a dispute terminate if-- 13
(a) the parties to the dispute agree to terminate the 14
proceedings; or 15
(b) any party to the dispute withdraws consent to the 16
arbitrator acting as mediator in the proceedings; or 17
(c) the arbitrator terminates the proceedings. 18
(4) An arbitrator who has acted as mediator in mediation 19
proceedings that are terminated may not conduct subsequent 20
arbitration proceedings in relation to the dispute without the 21
written consent of all the parties to the arbitration given on or 22
after the termination of the mediation proceedings. 23
(5) If the parties consent under subsection (4), no objection may 24
be taken to the conduct of subsequent arbitration proceedings 25
by the arbitrator solely on the ground that he or she has acted 26
previously as a mediator in accordance with this section. 27
(6) If the parties do not consent under subsection (4), the 28
arbitrator's mandate is taken to have been terminated under 29
section 14 and a substitute arbitrator is to be appointed in 30
accordance with section 15. 31
(7) If confidential information is obtained from a party during 32
mediation proceedings as referred to in subsection (2)(b) and 33
the mediation proceedings terminate, the arbitrator must, 34
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[s 27E]
before conducting subsequent arbitration proceedings in 1
relation to the dispute, disclose to all other parties to the 2
arbitration proceedings so much of the information as the 3
arbitrator considers material to the arbitration proceedings. 4
(8) In this section, a reference to a mediator includes a reference 5
to a conciliator or other non-arbitral intermediary between 6
parties. 7
Editor's note-- 8
There is no equivalent of this section in the Model Law. 9
27E Disclosure of confidential information 10
(1) The provisions of this section apply in arbitral proceedings 11
unless otherwise agreed by the parties. 12
(2) The parties must not disclose confidential information in 13
relation to the arbitral proceedings unless-- 14
(a) the disclosure is allowed under section 27F; or 15
(b) the disclosure is allowed under an order made under 16
section 27G and no order is in force under section 27H 17
prohibiting that disclosure; or 18
(c) the disclosure is allowed under an order made under 19
section 27I. 20
(3) An arbitral tribunal must not disclose confidential information 21
in relation to the arbitral proceedings unless-- 22
(a) the disclosure is allowed under section 27F; or 23
(b) the disclosure is allowed under an order made under 24
section 27G and no order is in force under section 27H 25
prohibiting that disclosure; or 26
(c) the disclosure is allowed under an order made under 27
section 27I. 28
Editor's note-- 29
There is no equivalent to this section in the Model Law. 30
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[s 27F]
27F Circumstances in which confidential information may be 1
disclosed 2
(1) This section sets out the circumstances in which confidential 3
information in relation to arbitral proceedings may be 4
disclosed by-- 5
(a) a party; or 6
(b) an arbitral tribunal. 7
(2) The information may be disclosed with the consent of all the 8
parties to the arbitral proceedings. 9
(3) The information may be disclosed to a professional or other 10
adviser of any of the parties. 11
(4) The information may be disclosed if it is necessary to ensure 12
that a party has a reasonable opportunity to present the party's 13
case and the disclosure is no more than reasonable for that 14
purpose. 15
(5) The information may be disclosed if it is necessary for the 16
establishment or protection of a party's legal rights in relation 17
to a third party and the disclosure is no more than reasonable 18
for that purpose. 19
(6) The information may be disclosed if it is necessary for the 20
purpose of enforcing an arbitral award and the disclosure is no 21
more than reasonable for that purpose. 22
(7) The information may be disclosed if it is necessary for the 23
purposes of this Act and the disclosure is no more than 24
reasonable for that purpose. 25
(8) The information may be disclosed if the disclosure is in 26
accordance with an order made or a subpoena issued by a 27
court. 28
(9) The information may be disclosed if the disclosure is 29
authorised or required by a relevant law or required by a 30
competent regulatory body, and the person making the 31
disclosure gives written details of the disclosure (including an 32
explanation of the reasons for the disclosure) to-- 33
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[s 27G]
(a) if the person is a party--the other parties and the arbitral 1
tribunal; and 2
(b) if the arbitral tribunal is making the disclosure--all the 3
parties. 4
(10) In this section-- 5
relevant law means-- 6
(a) a law of this State (other than this Act); and 7
(b) a law of the Commonwealth; and 8
(c) a law of another State or Territory. 9
Editor's note-- 10
There is no equivalent to this section in the Model Law. 11
27G Arbitral tribunal may allow disclosure of confidential 12
information in certain circumstances 13
(1) An arbitral tribunal may make an order allowing a party to 14
arbitral proceedings to disclose confidential information in 15
relation to the proceedings in circumstances other than those 16
mentioned in section 27F. 17
(2) An order under subsection (1) may only be made at the 18
request of one of the parties and after giving each of the 19
parties the opportunity to be heard. 20
Editor's note-- 21
There is no equivalent to this section in the Model Law. 22
27H The Court may prohibit disclosure of confidential 23
information in certain circumstances 24
(1) The Court may make an order prohibiting a party from 25
disclosing confidential information in relation to the arbitral 26
proceedings if the Court is satisfied, in the circumstances of 27
the particular case, that-- 28
(a) the public interest in preserving the confidentiality of 29
arbitral proceedings is not outweighed by other 30
considerations that render it desirable in the public 31
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[s 27I]
interest for the confidential information to be disclosed; 1
and 2
(b) the disclosure is more than is reasonable for that 3
purpose. 4
(2) An order under subsection (1) may only be made on the 5
application of a party to the arbitral proceedings and after 6
giving each of the parties to the arbitral proceedings the 7
opportunity to be heard. 8
(3) A party may only apply for an order under subsection (1) if 9
the arbitral tribunal has made an order under section 27G(1) 10
allowing disclosure of the information. 11
(4) The Court may order that the confidential information not be 12
disclosed pending the outcome of the application under 13
subsection (2). 14
(5) An order of the Court under this section that is made within 15
the limits of the authority of the Court is final. 16
Editor's note-- 17
There is no equivalent to this section in the Model Law. 18
27I The Court may allow disclosure of confidential 19
information in certain circumstances 20
(1) The Court may make an order allowing a party to disclose 21
confidential information in relation to the arbitral proceedings 22
in circumstances other than those mentioned in section 27F if 23
the Court is satisfied, in the circumstances of the particular 24
case, that-- 25
(a) the public interest in preserving the confidentiality of 26
arbitral proceedings is outweighed by other 27
considerations that render it desirable in the public 28
interest for the confidential information to be disclosed; 29
and 30
(b) the disclosure is no more than is reasonable for that 31
purpose. 32
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[s 27J]
(2) An order under subsection (1) may only be made on the 1
application of a person who is or was a party to the arbitral 2
proceedings and after giving each person who is or was a 3
party to the arbitral proceedings the opportunity to be heard. 4
(3) A party to arbitral proceedings may only apply for an order 5
under subsection (1) if-- 6
(a) the mandate of the arbitral tribunal has been terminated 7
under section 32; or 8
(b) a request by the party to the arbitral tribunal to make an 9
order under section 27G has been refused. 10
(4) An order of the Court under this section that is made within 11
the limits of the authority of the Court is final. 12
Editor's note-- 13
There is no equivalent to this section in the Model Law. 14
27J Determination of preliminary point of law by the Court 15
(1) Unless otherwise agreed by the parties, on an application to 16
the Court made by any of the parties to an arbitration 17
agreement the Court has jurisdiction to determine any 18
question of law arising in the course of the arbitration. 19
(2) An application under this section may be made by a party only 20
with the consent of-- 21
(a) an arbitrator who has entered on the reference; or 22
(b) all the other parties, 23
and with the leave of the Court. 24
Editor's note-- 25
There is no equivalent to this section in the Model Law. 26
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[s 28]
Part 6 Making of award and 1
termination of proceedings 2
28 Rules applicable to substance of dispute (cf Model Law Art 28) 3
(1) The arbitral tribunal must decide the dispute in accordance 4
with such rules of law as are chosen by the parties as 5
applicable to the substance of the dispute. 6
(2) Any designation of the law or legal system of a given State or 7
Territory must be construed, unless otherwise expressed, as 8
directly referring to the substantive law of that State or 9
Territory and not to its conflict of laws rules. 10
(3) Failing any designation by the parties, the arbitral tribunal 11
must apply the law determined by the conflict of laws rules 12
which it considers applicable. 13
(4) The arbitral tribunal must decide the dispute, if the parties so 14
agree, in accordance with such other considerations as are 15
agreed to by the parties. 16
(5) In all cases, the arbitral tribunal must decide in accordance 17
with the terms of the contract and must take into account the 18
usages of the trade applicable to the transaction. 19
Editor's note-- 20
This section (other than subsection (4)), is substantially the same as Art 21
28 of the Model Law. 22
29 Decision-making by panel of arbitrators (cf Model Law Art 29) 23
(1) In arbitral proceedings with more than one arbitrator, any 24
decision of the arbitral tribunal must be made, unless 25
otherwise agreed by the parties, by a majority of all its 26
members. 27
(2) However, questions of procedure may be decided by a 28
presiding arbitrator, if so authorised by the parties or all 29
members of the arbitral tribunal. 30
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[s 30]
30 Settlement (cf Model Law Art 30) 1
(1) If, during arbitral proceedings, the parties settle the dispute, 2
the arbitral tribunal must terminate the proceedings and, if 3
requested by the parties and not objected to by the arbitral 4
tribunal, record the settlement in the form of an arbitral award 5
on agreed terms. 6
(2) An award on agreed terms is to be made in accordance with 7
section 31 and must state that it is an award. 8
(3) Such an award has the same status and effect as any other 9
award on the merits of the case. 10
31 Form and contents of award (cf Model Law Art 31) 11
(1) The award must be made in writing and must be signed by the 12
arbitrator or arbitrators. 13
(2) In arbitral proceedings with more than one arbitrator, the 14
signatures of the majority of all members of the arbitral 15
tribunal suffices, provided that the reason for any omitted 16
signature is stated. 17
(3) The award must state the reasons upon which it is based, 18
unless the parties have agreed that no reasons are to be given 19
or the award is an award on agreed terms under section 30. 20
(4) The award must state its date and the place of arbitration as 21
determined in accordance with section 20. 22
(5) The award is taken to have been made at the place stated in the 23
award in accordance with subsection (4). 24
(6) After the award is made, a copy signed by the arbitrators in 25
accordance with subsection (1) must be delivered to each 26
party. 27
32 Termination of proceedings (cf Model Law Art 32) 28
(1) The arbitral proceedings are terminated by the final award or 29
by an order of the arbitral tribunal in accordance with 30
subsection (2). 31
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[s 33]
(2) The arbitral tribunal is to issue an order for the termination of 1
the arbitral proceedings when-- 2
(a) the claimant withdraws his or her claim, unless the 3
respondent objects and the arbitral tribunal recognises a 4
legitimate interest on the respondent's part in obtaining 5
a final settlement of the dispute; or 6
(b) the parties agree on the termination of the proceedings; 7
or 8
(c) the arbitral tribunal finds that the continuation of the 9
proceedings has for any other reason become 10
unnecessary or impossible; or 11
(d) the arbitral tribunal makes an award under section 12
25(2)(a) dismissing the claim. 13
(3) The mandate of the arbitral tribunal terminates with the 14
termination of the arbitral proceedings, subject to sections 33 15
and 34(4). 16
33 Correction and interpretation of award; additional award 17
(cf Model Law Art 33) 18
(1) Within 30 days of receipt of the award, unless another period 19
of time has been agreed on by the parties-- 20
(a) a party, with notice to the other party, may request the 21
arbitral tribunal to correct in the award any errors in 22
computation, any clerical or typographical errors or any 23
errors of similar nature; and 24
(b) if so agreed by the parties, a party, with notice to the 25
other party, may request the arbitral tribunal to give an 26
interpretation of a specific point or part of the award. 27
(2) If the arbitral tribunal considers a request under subsection (1) 28
to be justified, it must make the correction or give the 29
interpretation within 30 days of receipt of the request. 30
(3) The interpretation forms part of the award. 31
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[s 33A]
(4) The arbitral tribunal may correct any error of the type referred 1
to in subsection (1)(a) on its own initiative within 30 days of 2
the date of the award. 3
(5) Unless otherwise agreed by the parties, a party, with notice to 4
the other party, may request, within 30 days of receipt of the 5
award, the arbitral tribunal to make an additional award as to 6
claims presented in the arbitral proceedings but omitted from 7
the award. 8
(6) If the arbitral tribunal considers the request to be justified, it 9
must make the additional award within 60 days. 10
(7) The arbitral tribunal may extend, if necessary, the period of 11
time within which it may make a correction, interpretation or 12
an additional award under subsection (2) or (5). 13
(8) Section 31 applies to a correction or interpretation of the 14
award or to an additional award. 15
33A Specific performance 16
Unless otherwise agreed by the parties, the arbitrator has the 17
power to make an award ordering specific performance of any 18
contract if the Court would have power to order specific 19
performance of that contract. 20
Editor's note-- 21
There is no equivalent to this section in the Model Law. 22
33B Costs 23
(1) Unless otherwise agreed by the parties, the costs of an 24
arbitration (including the fees and expenses of the arbitrator or 25
arbitrators) are to be in the discretion of the arbitral tribunal. 26
(2) Unless otherwise agreed by the parties, the arbitral tribunal 27
may direct that the costs of an arbitration, or of any part of the 28
arbitral proceedings, are to be limited to a specified amount. 29
(3) A direction under subsection (2) may be varied at any stage, 30
but this must be done sufficiently in advance of the incurring 31
of costs to which it relates, or the taking of any steps in the 32
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[s 33C]
proceedings which may be affected by it, for the limit to be 1
taken into account. 2
(4) The arbitral tribunal may, in making an award-- 3
(a) direct to whom, by whom, and in what manner, the 4
whole or any part of the costs that it awards are to be 5
paid; and 6
(b) tax or settle the amount of costs to be paid or any part of 7
those costs; and 8
(c) award costs to be taxed or settled as between party and 9
party or as between legal practitioner and client. 10
(5) Any costs of an arbitration (other than the fees or expenses of 11
an arbitrator) that are directed to be paid by an award are, to 12
the extent that they have not been taxed or settled by the 13
arbitral tribunal, to be assessed in the Court having 14
jurisdiction under section 34 to hear applications setting aside 15
the award. 16
(6) If no provision is made by an award with respect to the costs 17
of the arbitration, a party may, within 14 days after receiving 18
the award, apply to the arbitral tribunal for directions as to the 19
payment of those costs. 20
(7) The arbitral tribunal must, after hearing any party who wishes 21
to be heard, amend the award by adding to it such directions 22
as the arbitral tribunal thinks proper with respect to the 23
payment of the costs of the arbitration. 24
Editor's note-- 25
There is no equivalent to this section in the Model Law. 26
33C Application of Legal Profession Act 2007 27
For the purposes of section 33B(5), the Legal Profession Act 28
2007, part 3.4, division 7 applies with any necessary 29
modifications. 30
Editor's note-- 31
There is no equivalent to this section in the Model Law. 32
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[s 33D]
33D Costs of abortive arbitration 1
(1) Unless otherwise agreed in writing by the parties, if an 2
arbitration is commenced but for any reason fails, the Court 3
may, on the application of a party or the arbitral tribunal made 4
within 6 months after the failure of the arbitration, make such 5
orders in relation to the costs of the arbitration as it thinks just. 6
(2) For the purposes of this section, an arbitration is taken to have 7
failed if-- 8
(a) a final award is not made by the arbitral tribunal before 9
the arbitration terminates; or 10
(b) an award made is wholly set aside by the Court. 11
(3) If the failed arbitration is a related proceedings (within the 12
meaning of section 27C), the Court may stay proceedings on 13
the application under subsection (1) pending the 14
determination of the other arbitration proceedings to which 15
the failed arbitration is related. 16
Editor's note-- 17
There is no equivalent to this section in the Model Law. 18
33E Interest up to making of award 19
(1) Unless otherwise agreed by the parties, where an arbitral 20
tribunal makes an award for the payment of money (whether 21
on a claim for a liquidated or an unliquidated amount), the 22
arbitral tribunal may include in the sum for which the award is 23
made interest, at such reasonable rate as the arbitral tribunal 24
determines-- 25
(a) on the whole or any part of the money; and 26
(b) for the whole or any part of the period between the date 27
on which the cause of action arose and the date on 28
which the award is made. 29
(2) Subsection (1) does not-- 30
(a) authorise the awarding of interest on interest awarded 31
under this section; or 32
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[s 33F]
(b) apply in relation to any amount on which interest is 1
payable as of right whether because of an agreement or 2
otherwise; or 3
(c) affect the damages recoverable for the dishonour of a 4
bill of exchange. 5
Editor's note-- 6
There is no equivalent to this section in the Model Law. 7
33F Interest on debt under award 8
(1) This section applies if-- 9
(a) an arbitral tribunal makes an award for the payment of 10
an amount of money; and 11
(b) under the award, the amount is to be paid by a particular 12
day (the due date); 13
unless otherwise agreed by the parties. 14
(2) The arbitral tribunal may direct that interest, including 15
compound interest, is payable if the amount is not paid on or 16
before the due date. 17
(3) The arbitral tribunal may set a reasonable rate of interest. 18
(4) The interest is payable-- 19
(a) from the day immediately following the due date; and 20
(b) on so much of the money as remains unpaid. 21
(5) The direction is taken to form part of the award. 22
Editor's note-- 23
There is no equivalent to this section in the Model Law. 24
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[s 34]
Part 7 Recourse against award 1
34 Application for setting aside as exclusive recourse 2
against arbitral award (cf Model Law Art 34) 3
(1) Recourse to the Court against an arbitral award may be made 4
only by an application for setting aside in accordance with 5
subsections (2) and (3) or by an appeal under section 34A. 6
Editor's note-- 7
The Model Law does not provide for appeals under section 34A. 8
(2) An arbitral award may be set aside by the Court only if-- 9
(a) the party making the application furnishes proof that-- 10
(i) a party to the arbitration agreement referred to in 11
section 7 was under some incapacity, or the 12
arbitration agreement is not valid under the law to 13
which the parties have subjected it or, failing any 14
indication in it, under the law of this State; or 15
(ii) the party making the application was not given 16
proper notice of the appointment of an arbitral 17
tribunal or of the arbitral proceedings or was 18
otherwise unable to present the party's case; or 19
(iii) the award deals with a dispute not contemplated by 20
or not falling within the terms of the submission to 21
arbitration, or contains decisions on matters 22
beyond the scope of the submission to arbitration, 23
provided that, if the decisions on matters submitted 24
to arbitration can be separated from those not so 25
submitted, only that part of the award which 26
contains decisions on matters not submitted to 27
arbitration may be set aside; or 28
(iv) the composition of the arbitral tribunal or the 29
arbitral procedure was not in accordance with the 30
agreement of the parties, unless such agreement 31
was in conflict with a provision of this Act from 32
which the parties cannot derogate, or, failing such 33
agreement, was not in accordance with this Act; or 34
Page 52
Commercial Arbitration Bill 2011
Part 7 Recourse against award
[s 34A]
(b) the Court finds that-- 1
(i) the subject-matter of the dispute is not capable of 2
settlement by arbitration under the law of this 3
State; or 4
(ii) the award is in conflict with the public policy of 5
this State. 6
(3) An application for setting aside may not be made after 3 7
months have elapsed from the date on which the party making 8
that application had received the award or, if a request had 9
been made under section 33, from the date on which that 10
request had been disposed of by the arbitral tribunal. 11
(4) The Court, when asked to set aside an award, may, where 12
appropriate and so requested by a party, suspend the setting 13
aside of proceedings for a period of time determined by it in 14
order to give the arbitral tribunal an opportunity to resume the 15
arbitral proceedings or to take such other action as in the 16
arbitral tribunal's opinion will eliminate the grounds for 17
setting aside. 18
34A Appeals against awards 19
(1) An appeal lies to the Court on a question of law arising out of 20
an award if-- 21
(a) the parties agree, before the end of the appeal period 22
referred to in subsection (6), that an appeal may be made 23
under this section; and 24
(b) the Court grants leave. 25
(2) An appeal under this section may be brought by any of the 26
parties to an arbitration agreement. 27
(3) The Court must not grant leave unless it is satisfied-- 28
(a) that the determination of the question will substantially 29
affect the rights of one or more of the parties; and 30
(b) that the question is one which the arbitral tribunal was 31
asked to determine; and 32
(c) that, on the basis of the findings of fact in the award-- 33
Page 53
Commercial Arbitration Bill 2011
Part 7 Recourse against award
[s 34A]
(i) the decision of the tribunal on the question is 1
obviously wrong; or 2
(ii) the question is one of general public importance 3
and the decision of the tribunal is at least open to 4
serious doubt; and 5
(d) that, despite the agreement of the parties to resolve the 6
matter by arbitration, it is just and proper in all the 7
circumstances for the Court to determine the question. 8
(4) An application for leave to appeal must identify the question 9
of law to be determined and state the grounds on which it is 10
alleged that leave to appeal should be granted. 11
(5) The Court is to determine an application for leave to appeal 12
without a hearing unless it appears to the Court that a hearing 13
is required. 14
(6) An appeal may not be made under this section after 3 months 15
have elapsed from the date on which the party making the 16
appeal received the award or, if a request had been made 17
under section 33, from the date on which that request had 18
been disposed of by the arbitral tribunal (in this section 19
referred to as the appeal period). 20
(7) On the determination of an appeal under this section the Court 21
may by order-- 22
(a) confirm the award; or 23
(b) vary the award; or 24
(c) remit the award, together with the Court's opinion on 25
the question of law which was the subject of the appeal, 26
to the arbitrator for reconsideration or, where a new 27
arbitrator has been appointed, to that arbitrator for 28
consideration; or 29
(d) set aside the award in whole or in part. 30
(8) The Court must not exercise its power to set aside an award, in 31
whole or in part, unless it is satisfied that it would be 32
inappropriate to remit the matters in question to the arbitral 33
tribunal for reconsideration. 34
Page 54
Commercial Arbitration Bill 2011
Part 8 Recognition and enforcement of awards
[s 35]
(9) Where the award is remitted under subsection (7)(c) the 1
arbitrator must, unless the order otherwise directs, make the 2
award within 3 months after the date of the order. 3
(10) The Court may make any leave which it grants under 4
subsection (3) (c) subject to the applicant complying with any 5
conditions it considers appropriate. 6
(11) Where the award of an arbitrator is varied on an appeal under 7
this section, the award as varied has effect (except for the 8
purposes of this section) as if it were the award of the 9
arbitrator. 10
Editor's note-- 11
There is no equivalent to this section in the Model Law. 12
Part 8 Recognition and enforcement 13
of awards 14
35 Recognition and enforcement (cf Model Law Art 35) 15
(1) An arbitral award, irrespective of the State or Territory in 16
which it was made, is to be recognised in this State as binding 17
and, on application in writing to the Court, is to be enforced 18
subject to the provisions of this section and section 36. 19
(2) The party relying on an award or applying for its enforcement 20
must supply the original award or a copy of the original 21
award. 22
(3) If the award is not made in English, the Court may request the 23
party to supply a translation of it into English. 24
Editor's note-- 25
So much of Art 35(2) of the Model Law as provides for the translation 26
of an award that is not in the official language of the enforcing State has 27
been modified. 28
Page 55
Commercial Arbitration Bill 2011
Part 8 Recognition and enforcement of awards
[s 36]
36 Grounds for refusing recognition or enforcement (cf Model 1
Law Art 36) 2
(1) Recognition or enforcement of an arbitral award, irrespective 3
of the State or Territory in which it was made, may be refused 4
only-- 5
(a) at the request of the party against whom it is invoked, if 6
that party furnishes to the Court proof that-- 7
(i) a party to the arbitration agreement was under 8
some incapacity, or the arbitration agreement is not 9
valid under the law to which the parties have 10
subjected it or, failing any indication in it, under 11
the law of the State or Territory where the award 12
was made; or 13
(ii) the party against whom the award is invoked was 14
not given proper notice of the appointment of an 15
arbitrator or of the arbitral proceedings or was 16
otherwise unable to present the party's case; or 17
(iii) the award deals with a dispute not contemplated by 18
or not falling within the terms of the submission to 19
arbitration, or it contains decisions on matters 20
beyond the scope of the submission to arbitration, 21
provided that, if the decisions on matters submitted 22
to arbitration can be separated from those not so 23
submitted, that part of the award which contains 24
decisions on matters submitted to arbitration may 25
be recognised and enforced; or 26
(iv) the composition of the arbitral tribunal or the 27
arbitral procedure was not in accordance with the 28
agreement of the parties or, failing such agreement, 29
was not in accordance with the law of the State or 30
Territory where the arbitration took place; or 31
(v) the award has not yet become binding on the 32
parties or has been set aside or suspended by a 33
court of the State or Territory in which, or under 34
the law of which, that award was made; or 35
(b) if the Court finds that-- 36
Page 56
Commercial Arbitration Bill 2011
Part 9 Miscellaneous
[s 37]
(i) the subject-matter of the dispute is not capable of 1
settlement by arbitration under the law of this 2
State; or 3
(ii) the recognition or enforcement of the award would 4
be contrary to the public policy of this State. 5
(2) If an application for setting aside or suspension of an award 6
has been made to a court referred to in subsection (1)(a)(v), 7
the Court may, if it considers it proper, adjourn its decision 8
and may also, on the application of the party claiming 9
recognition or enforcement of the award, order the party to 10
provide appropriate security. 11
Part 9 Miscellaneous 12
37 Death of party 13
(1) Unless otherwise agreed by the parties, if a party to an 14
arbitration agreement dies the agreement is not discharged 15
(either as respects the deceased or any other party) and the 16
authority of an arbitral tribunal is not revoked by the death but 17
that agreement is enforceable by or against the personal 18
representative of the deceased. 19
(2) Nothing in subsection (1) affects the operation of any 20
enactment or rule of law by virtue of which a right of action is 21
extinguished by the death of a person. 22
Editor's note-- 23
There is no equivalent to this section in the Model Law. 24
38 Interpleader 25
Where relief by way of interpleader is granted in any court 26
and it appears to that court that the claims in question are 27
matters to which an arbitration agreement (to which the 28
claimants are parties) applies, the court must, unless it is 29
Page 57
Commercial Arbitration Bill 2011
Part 10 Repeal and transitional provision
[s 39]
satisfied that there is sufficient reason why the matters should 1
not be referred to arbitration in accordance with the 2
agreement, make an order directing the issue between the 3
claimants to be determined in accordance with the agreement. 4
Editor's note-- 5
There is no equivalent to this section in the Model Law. 6
39 Immunity 7
(1) An arbitrator is not liable for anything done or omitted to be 8
done in good faith in his or her capacity as arbitrator. 9
(2) An entity that appoints, or fails to appoint, a person as 10
arbitrator is not liable in relation to the appointment, failure or 11
refusal if done in good faith. 12
(3) In this section, a reference to an arbitrator includes an 13
arbitrator acting as a mediator, conciliator or other 14
non-arbitral intermediary under section 27D. 15
Editor's note-- 16
There is no equivalent to this section in the Model Law. 17
40 Regulation-making power 18
The Governor in Council may make regulations under this 19
Act. 20
Part 10 Repeal and transitional 21
provision 22
Division 1 Repeal 23
41 Repeal 24
The Commercial Arbitration Act 1990, No. 75 is repealed. 25
Page 58
Commercial Arbitration Bill 2011
Part 10 Repeal and transitional provision
[s 42]
Editor's note-- 1
There is no equivalent to this section in the Model Law. 2
Division 2 Transitional provision 3
42 Transitional provision for Commercial Arbitration Act 4
2011 5
(1) Subject to subsection (2)-- 6
(a) this Act applies to an arbitration agreement (whether 7
made before or after the commencement of this Act) and 8
to an arbitration under such an agreement; and 9
(b) a reference in an arbitration agreement to the 10
Commercial Arbitration Act 1990, or a provision of that 11
Act, is to be construed as a reference to this Act or to the 12
corresponding provision (if any) of this Act. 13
(2) If an arbitration was commenced before the commencement 14
of this Act, the law governing the arbitration and the 15
arbitration agreement is to be that which would have been 16
applicable if this Act had not been enacted. 17
(3) For the purposes of this section, an arbitration is taken to have 18
been commenced if-- 19
(a) a dispute to which the relevant arbitration agreement 20
applies has arisen; and 21
(b) the arbitral tribunal has been properly constituted. 22
Editor's note-- 23
There is no equivalent to this section in the Model Law. 24
Page 59
Commercial Arbitration Bill 2011
Part 11 Consequential amendments
[s 43]
Part 11 Consequential amendments 1
43 Acts amended in schedule 2
The schedule amends the Acts it mentions. 3
Page 60
Commercial Arbitration Bill 2011
Schedule
Schedule Consequential and minor 1
amendments 2
section 43 3
Part 1 Amendment of this Act 4
1 Long title, from `, to'-- 5
omit. 6
Part 2 Amendment of other Acts 7
Chicken Meat Industry Committee Act 1976 8
1 Section 24(5), `Commercial Arbitration Act 1990'-- 9
omit, insert-- 10
`Commercial Arbitration Act 2011'. 11
District Court of Queensland Act 1967 12
1 Section 3, definition District Court jurisdiction Act, 13
paragraph (a), `Commercial Arbitration Act 1990'-- 14
omit, insert-- 15
`Commercial Arbitration Act 2011'. 16
Page 61
Commercial Arbitration Bill 2011
Schedule
Domestic Building Contracts Act 2000 1
1 Section 98(1), `Commercial Arbitration Act 1990'-- 2
omit, insert-- 3
`Commercial Arbitration Act 2011'. 4
Funeral Benefit Business Act 1982 5
1 Section 62(2), `an arbitration agreement under the 6
Commercial Arbitration Act 1990'-- 7
omit, insert-- 8
`an arbitral award under the Commercial Arbitration Act 9
2011'. 10
Mixed Use Development Act 1993 11
1 Section 136(5), `Commercial Arbitration Act 1990'-- 12
omit, insert-- 13
`Commercial Arbitration Act 2011'. 14
Retail Shop Leases Act 1994 15
1 Schedule, definition arbitration, `Commercial Arbitration 16
Act 1990'-- 17
omit, insert-- 18
`Commercial Arbitration Act 2011'. 19
Page 62
Commercial Arbitration Bill 2011
Schedule
South Bank Corporation Act 1989 1
1 Section 46(20), `Commercial Arbitration Act 1990'-- 2
omit, insert-- 3
`Commercial Arbitration Act 2011'. 4
2 Schedule 4, sections 24E(3)(a) and 26(12)(a), `Commercial 5
Arbitration Act 1990'-- 6
omit, insert-- 7
`Commercial Arbitration Act 2011'. 8
Supreme Court of Queensland Act 1991 9
1 Schedule 1, section 9(1)(d)(viii), `Commercial Arbitration 10
Act 1990'-- 11
omit, insert-- 12
`Commercial Arbitration Act 2011'. 13
Transport Infrastructure Act 1994 14
1 Sections 428(2) and 429(2), `Commercial Arbitration Act 15
1990'-- 16
omit, insert-- 17
`Commercial Arbitration Act 2011'. 18
Page 63
Commercial Arbitration Bill 2011
Schedule
Transport Operations (Passenger Transport) Act 1994 1
1 Sections 36F(6), 61(5) and 62AAH(5), `Commercial 2
Arbitration Act 1990'-- 3
omit, insert-- 4
`Commercial Arbitration Act 2011'. 5
© State of Queensland 2011
Page 64
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