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LAWS20062 International Commercial Law 3

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Question:

Discuss the advantages and disadvantages of arbitration, and explain the benefits and the costs of resolving an international commercial dispute by arbitration in Australia.

 

Answer:

Legislations on Arbitration in Australia

Australia has its own set of commercial legislation, which is associated with a preamble. Based on this legislation, resolutions on disputes are resolved by the government. In arbitrary cases of international commercial disputes, the legislation preamble of Australia states that ‘’Recognizing that mutual consent by the country to submit such disputes to conciliation or to arbitration through such facilities constitutes a binding agreement which requires in particular that due consideration be given to any recommendation of conciliators and that any arbitral award be complied with; and Declaring that no Contracting State shall by the mere fact of its ratification, acceptance or approval of this Convention and without its consent be deemed to be under any obligation to submit any particular dispute to conciliation or arbitration”.

Advantages of Arbitrary in Australia

In arbitrary cases of international commercial disputes between the two countries in Australia, Section 1 Establishment and Organization states that the country can experience benefits only after a judgment is made with respect to resolution. One of the advantages is related to the privacy of information of the parties. Information, which is passed on to develop a resolution remains confidential from the opposing country or countries and the public as well. At present, an addition of the New York convention of legislation along with the ruling has been an additional benefit exercised by the arbitrator. The states in the country get a chance to experience about the requirements in guarding the order of international commercial legislation. Based on this, they get a chance for developing measures so that they do not go through the same problem in future. Mandatory rules of ‘lex contractus’ under the arbitrary cases in international commercial disputes favors the two opposing countries, as their expectations in ensuring justice is actually practiced through this rule. In case a party being uneducated or unfamiliar with this rules, are required to make sure that they know about the mandatory rules. Thus, efforts are made in order to ensure that they understand the mandatory rules completely;;. The two countries also have an advantage in selecting the procedure of arbitration, decisions or judgments, as they take less time. In addition, they can also ask for more arbitraries in case if they feel insecure about wrong judgment by the court.

Beside this, a major benefit of avoiding criticism between the two countries is exercised so that they can agree to settle the ongoing disputes. Resolution with respect to arbitration is made from the perspectives of both the country by informing the arbitrators about the facts relating to the disputes between the two countries;.The section 34(a) of the International Arbitration Act 1974 involves these judgments with respect to the two countries so that they experience justice.

 

Disadvantages of Arbitrary in Australia

Arbitration process can face several disadvantages while two countries are on disputes during at the time of judgment made by the court of Australia under the International Arbitration Act 1974 (Cth) and the Australian Commercial Arbitration Acts include formalism of the arbitrators. The two opposing countries may suffer due to the lack of knowledge, competency, and decisive approach with respect to the arbitrators in the country. Informal procedures are usually initiated by these types of arbitrators in the country. Thus, this may lead to creating problems in the judgment made by the Supreme Court. One of the major issues faced by the countries during the judgment of commercial disputes by the Supreme Court of Australia is the change in legislation as per the state. Contextually, different states have varied set of rules and making judgment can be problematic if viewed in terms of geographical aspect. In some cases, jurisdictions of the courts may not be possible, as several states do not consider this under their legislation. Other than these disadvantages, a country usually has to experience a whole set of new laws, regulations, new or foreign court systems, language, and legal procedures. A problem is created, which can take a long time to be resolved. This will largely increase the costs of the arbitration process. This includes paying arbitrators for their legal services. When these occur, a country or a party lacks strength in defending themselves in their case. Since the judgments by the courts of Australia are made publicly, a company can incur major business loss after being exposed as a guilty party to the public.

Costs of Resolving International Commercial Disputes

As per the Foreign Judgments Act, 1991 of Australia, the rules of the court states that every provision carried out on resolving the commercial disputes between two countries depends on the person or the arbitrator for applying or registering the process of judgment. The model implemented or approached by the registered arbitrator varies along with its cost for the country. In terms of cost, the time period is of utmost importance because the arbitrator charges a fee until till the issue is settled. The costs for a country also depends on the judgment made by the Australian Supreme Court, as it may be possible that losing party will have to pay a large sum of money in return if they are found guilty. Thus, a reasonable cost is paid while registering the arbitrator during the case of commercial disputes. Apart from these, the two parties need to pay the price for obtaining the certified copy of the judgment made by the Supreme Court of Australia as well as price in obtaining the evidence from the foreign exchange affairs. This is to be considered in terms of Australian Dollar currency.

Besides, the transactions cost, which needs to be paid by the country completely depends on the negotiation until final judgment is made. In some cases, international commercial disputes may observe to be serious. Thus, during these phases, these types of cases are directly handed over to the Australian High Courts. The costs generally multiply for the country or party than that of which they were paying while the case was in the hands of the Supreme Court. This indicates that they will have to pay a higher amount as compared to the past.

 

References

Barraclough, Andrew & Waincymer, Jeff, ‘Mandatory Rules of Law in International Commercial Arbitration’, (2007) Melbourne Journal of International Law, 1-40.

CIL, ‘1965 Convention on the settlement of investment disputes between states and nationals of other states’, (2010), Centre for International Law, 1-24.

Clayton Utz, ‘A Guide to International Arbitration’, (2012) Introduction to International Arbitration, 1-33.

ComLaw Authoritative Act, ‘Foreign Judgments Act 1991’, (2012). Act No. 112 of 1991 as amended, 1-31.

Michael Kirby, ‘Alternative Dispute Resolution – A Hard-Nosed View of its Strengths and Limitations,’ (2009) The Institute of Arbitrators & Mediators Australia South Australian Chapter, 1-19.

Richard Garnett & Luke Nottage, ‘What Law Applies to International Commercial Arbitration in Australia?’, (2017) UNSW Law Journal, vol. 35, no. 3, pp 1-26.

Robert French, ‘International Commercial Dispute Resolution and the Place of Judicial Power’, (2013), International Commercial Law and Arbitration Conference, 1-17.

Thompson Reuters, ‘Introduction to International Commercial Arbitration’, (2011), Chapter 1, 1-28.

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