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Australian Maritime and Transport Arbitration Commission

Australian Maritime and Transport Arbitration Commission. Drafting Effective Arbitration Clauses. Melbourne - 17 November 2016 Peter McQueen FCIArb www.amtac.org. Overview. What is international arbitration? What is an arbitration agreement?

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Australian Maritime and Transport Arbitration Commission

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  1. Australian Maritime and Transport Arbitration Commission Drafting Effective Arbitration Clauses Melbourne - 17 November 2016 Peter McQueen FCIArb www.amtac.org

  2. Overview • What is international arbitration? • What is an arbitration agreement? • What are the essentials of an arbitration agreement? • Model arbitration clause – AMTAC • Multi-tier dispute resolution clauses

  3. International Arbitration • Definition • Hybrid – private process and public effect • International conventions, model and national laws • New York Convention 1958 • UNCITRAL Model Law 1985/2006 • Australian International Arbitration Act 1974

  4. Arbitration Agreement • “Foundation stone” • Arbitration clause or submission to arbitration • “in writing” • Consent to arbitration

  5. Arbitration Agreement • Separability between arbitration agreement and main contract • Source of powers and jurisdiction of tribunal

  6. Essentials of Arbitration Agreement • Institutional or ad hoc • Arbitration rules and model clauses • Scope • Seat/place of arbitration

  7. Essentials of Arbitration Agreement • Number of arbitrators • Selection and replacement of arbitrators • Language • Law governing arbitration agreement and law governing main contract Sulamerica Cia Nacional de Seguros SA v EnesaEngenharia SA [2012] EWCA (Civ) 638

  8. Model Clause - AMTAC Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question relating to its existence, validity or termination, shall be resolved by arbitration in accordance with the AMTAC Arbitration Rules. The seat of the arbitration shall be Sydney, Australia [or choose another city]. The language of the arbitration shall be English [or choose another language].

  9. Multi-Tier Dispute Resolution Clauses • Negotiation and /or mediation before arbitration • Time periods triggered by defined and undisputable event • Arbitration mandatory • Definition of disputes in identical terms Emirates Trading Agency v Prime Mineral Exports [2014] EWHC 2104 (Comm)

  10. Australian Maritime and Transport Arbitration Commission Drafting Effective Arbitration Clauses Melbourne - 17 November 2016 Peter McQueen FCIArb www.amtac.org

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