PRELIMINARY DISCOVERY IN INTERNATIONAL ARBITRATION: AN AUSTRALIAN PERSPECTIVE

The availability and scope of ‘discovery’ or document production significantly differs across jurisdictions, most notably when comparing litigation in common law and civil law courts. In the field of international arbitration, the compromise position adopted by the International Bar Association’s Rules on the Taking of Evidence in International Arbitration is to permit disclosure of documents … Read more

DON’T COUNT YOUR CHICKENS: AUSTRALIAN COURT FINDS UNLIQUIDATED DAMAGES CLAIM OUTSIDE THE SCOPE OF A NARROWLY DRAFTED ARBITRATION AGREEMENT

In Inghams Enterprises Pty Limited v Hannigan [2020] NSWCA 82, the New South Wales Court of Appeal found that a claim for unliquidated damages for breach of contract could not be referred to arbitration because it was not within the scope of a narrowly drafted arbitration agreement. Relevantly, the scope of the arbitration agreement was … Read more

AUSTRALIAN ARBITRATION CENTRE RELEASES GUIDANCE ON MANAGING DISPUTES DURING COVID-19

The Australian Centre for International Commercial Arbitration (ACICA) has released an information sheet for managing the impact of COVID-19 on disputes (including disputes presently before the courts which are being impacted by COVID-19). The guide, found here, covers the advantages of using arbitration to resolve disputes during the COVID-19 pandemic and includes useful links to … Read more

Australian Joint Standing Committee on Treaties approves new investment treaties between Australia, Hong Kong and Indonesia

The Joint Standing Committee on Treaties (“JSCOT“) of the Australian Parliament has just released Report No. 186 examining three treaties: the Free Trade Agreement between Australia and Hong Kong, China (“HK-FTA“), the Investment Agreement between the Government of Australia and the Government of the Hong Kong Special Administrative Region of the People’s Republic of China … Read more

HIGH COURT OF AUSTRALIA RULES ON INTERPRETATION OF ARBITRATION CLAUSES

In an important and clarifying decision, the High Court of Australia has handed down its decision in Rinehart & Anor v Hancock Prospecting Pty Ltd & Ors.1 The decision is significant for the conduct of international arbitration in Australia because: the High Court held that the phrase “any dispute under this deed” in an arbitration clause … Read more

AUSTRALIA AND INDONESIA SIGN COMPREHENSIVE ECONOMIC PARTNERSHIP AGREEMENT

On 4 March 2019, Australia and Indonesia signed the Australia-Indonesia Comprehensive Economic Partnership Agreement (“CEPA“). In this post, we briefly consider some of the noteworthy features of the CEPA chapter on investment and in particular its provisions regarding investor-State dispute settlement (“ISDS“). Indonesia and Australia signed a bilateral investment treaty (“BIT“) containing ISDS provisions in … Read more

AUSTRALIA AND HONG KONG SIGN NEW TRADE AGREEMENT CONTAINING INVESTOR-STATE DISPUTE RESOLUTION PROVISIONS

On 26 March 2019, Australia and Hong Kong signed the Australia-Hong Kong Free Trade Agreement (A-HKFTA) and its associated Investment Agreement (Agreement). These agreements were negotiated against the background of a heated political debate in Australia regarding the benefits and risks of investment treaties. This debate occurred as a result of an arbitration brought against … Read more