Plain English Spring

Plain English Spring

The Commercial Aribitration Act 2012 (WA) (New Act) came into full force by proclamation on 7 August 2013.  In this edition of Plain English we look at the key provisions of the New Act.

Under the 1985 Act, the courts had a discretion to decide if proceedings would be stayed when a valid arbitration existed but under the New Act, a court is required to refer the parties to arbitration in a matter which is the subject of an arbitration agreement unless it finds the agreement to be ‘null and void, inoperative or incapable of being performed’ (Section 8(1)).

An arbitrator may only be challenged in their appointment ‘if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence’. The test of a ‘real danger of bias’ is used to determine the question of an arbitrator’s impartiality or independence. The arbitral tribunal must decide on the challenge before resorting to a court determination unless there is any agreement to the contrary (Section 13).

The New Act provides that an arbitral tribunal has the power to grant interim measures (unless otherwise agreed by the parties) similar to the interlocutory orders that could be obtained from a court during litigation prior to final determination of a dispute.  A tribunal under the New Act has broader power and may make orders for security for costs, discovery of documents and interrogatories and for ‘stop clock’ arbitration (Section 17).

The parties to arbitration can assume that the arbitration is both private and confidential under the New Act due to the confidentiality provisions which apply unless the parties opt out (Section 27).

The rights of a party to appeal from an award are more restricted than those found in the appeal provisions of the 1985 Act (Section 34A). For an appeal on a question of law, the right of appeal only arises upon the agreement of the parties and with leave of Court.

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