Allens

Arbitration

Our experienced Arbitration legal team regularly publishes articles and updates - the full list of publications appears below. These publications provide a snapshot of the latest legislation, court cases, policy changes and contentious issues affecting arbitration. If you'd like to be notified when we add new arbitration publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.

Read about Allens' track record in this dynamic area.

Arbitration Publications

  • Report: Wrap-Up of Sydney Arbitration Week 2016

    6 December 2016

    The Allens Arbitration group reports on some highlights from Sydney Arbitration Week, which is an important event on the arbitration calendar. Discussion among local and international participants included some of the biggest challenges facing the future of international arbitration and practical tips for arbitration in the Asia Pacific region.

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  • Focus: Supreme Court of WA sends EPC contractor back to arbitration

    13 July 2016

    In Samsung C&T Corporation v Duro Felbuera Australia Pty Ltd [2016] WASC 193, the Supreme Court of Western Australia had to carefully consider the role that Australian courts play when there is a dispute over the existence and scope of an arbitration agreement. The key issue was whether a jurisdiction clause in a term sheet was inconsistent with there being an agreement to arbitrate disputes arising under the term sheet. However, the court was also required to consider the extent to which it should determine whether an arbitration agreement existed, and whether a dispute fell within its scope, in circumstances where an arbitral tribunal had already been asked to rule on its own jurisdiction to hear the same dispute. Partner Jeremy Quan-Sing and Law Graduate Lily Hands report.

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  • Focus: Double recovery as a challenge to the enforcement of an arbitral award

    1 March 2016

    The Victorian Court of Appeal has refused an application for leave to appeal against the enforcement of an arbitral award. The applicants applied for leave to appeal on the basis that enforcement of the award would be contrary to public policy as it would give effect to 'double recovery' by the respondents. Partner Peter O'Donahoo, Managing Associate Hilary Birks and Lawyer Luke Callaghan report.

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  • Focus: Arbitration Roundup

    22 December 2015

    We look at how Australia keeps up to date with international best practice by amendments to ACICA arbitral rules and international arbitration laws; potential improvements and innovations identified in the 2015 Queen Mary University of London International Arbitration Survey; the investor-state dispute settlement mechanism under the Trans Pacific Partnership agreement; and in Hong Kong, increasing support for third party arbitration funding and the introduction of arbitrator 'report cards'. This issue has been edited by Partner Andrea Martignoni and Senior Associate Catherine Li.

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  • Focus: The investment chapter of the Trans-Pacific Partnership

    14 December 2015

    The release of the text of the Trans-Pacific Partnership Agreement has renewed the debate about the ability of foreign investors to sue governments under investor-State dispute settlement mechanisms which are commonly part of international trade agreements or investment treaties between States. Partner Peter O'Donahoo, Managing Associate Hilary Birks and Associate Chris Holland report on the investment protections available in the Trans-Pacific Partnership Agreement and how the parties have attempted to strike a balance between a State's right to regulate and the rights of foreign investors.

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  • Focus: Third parties are no bar to arbitration: A win for arbitration?

    7 May 2015

    The Supreme Court of New South Wales has confirmed in a recent case that the impact of any dispute on third parties will generally not determine its arbitrability, which rather will be determined on the proper construction of the arbitration agreement. Partner Nick Rudge, Senior Associate Alex Price and and Lawyer James Waters report.

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  • Client Update: Significant 'blow' for penalties claims

    8 April 2015

    Today the Full Federal Court clarified the law of penalties as it applies to fees. The key development is that, in considering whether the amount of a fee is 'extravagant and exorbitant' compared to the potential costs incurred in dealing with a failure to perform an obligation, the court held that indirect costs could be taken into account. Subject to a likely attempt to appeal to the High Court, this development imposes a substantial hurdle for current and future penalties class actions. Partner Jenny Campbell and Lawyer Alicia Lyons report.

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  • Client Update: The driver, the racing team, the Grand Prix and the court - high-speed arbitration enforcement in the Victorian Supreme Court

    16 March 2015

    In just over a week of fast-paced litigation, the Supreme Court of Victoria acted quickly and decisively to enforce an international arbitration award. Partner Duncan Travis (view CV) and Associate Christopher Holland report on the litigation between Dutch driver Giedo van der Garde and Formula One racing team Sauber Motorsport AG, which was settled on the eve of the Australian Grand Prix.

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  • Focus: The changing landscape of international investment agreements

    3 March 2015

    A recent United Nations Conference on Trade and Development report identifies recent trends in international investment agreements and investor-state dispute settlement - among them, a rise in the integration of sustainable development objectives, including via more careful regulation by states of investor-state dispute settlement mechanisms. Partner Peter O'Donahoo, Managing Associate Hilary Birks and Associate Anna McMahon report.

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  • Focus: Australia's expanding network of investment treaties and investor-state dispute settlement

    18 February 2015

    Australia continues to expand its network of investment treaties. In light of this, Australian investors should consider a review of the treaty protections that apply to their foreign investments. If a treaty includes an investor-State dispute settlement mechanism, the investor may be able to resolve disputes with the host State through international arbitration. Partner Andrea Martignoni and Associate Christopher Holland examine Australia's engagement with investor-State dispute settlement and the opportunities afforded by Australia's investment treaties.

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  • Report: Wrap-up of Sydney Arbitration Week 2014

    25 November 2014

    Over five days in November, Sydney played host to a series of major international conferences as part of the second Sydney Arbitration Week.

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  • Focus: Investor-state dispute settlement and the China-Australia Free Trade Agreement

    21 November 2014

    The Australian and Chinese governments have concluded negotiations on a free trade agreement that will reduce tariff barriers on the majority of Australian exports to China. The Australian Department of Foreign Affairs and Trade has confirmed that the treaty will include an investor-state dispute settlement mechanism. Partner Peter O'Donahoo, Managing Associate Hilary Birks and Associate Anna McMahon report.

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  • Focus: International arbitration update

    9 September 2014

    In this issue we look at an unsuccessful challenge to the enforcement of foreign arbitral awards in the Federal Court of Australia; recent changes to the arbitration rules of the Institute of Arbitrators and Mediators Australia, the International Centre for Dispute Resolution and the London Court of International Arbitration; and a decision of the English High Court enforcing an obligation to engage in friendly discussions as the first step in a multi-tiered dispute resolution clause.

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  • Focus: Another win for arbitration

    7 August 2014

    The Full Court of the Federal Court of Australia has upheld an earlier decision rejecting an application to set aside or not enforce an international arbitral award. The appeal was brought on the grounds that the rules of natural justice were breached in making the arbitral award. Partner Peter O'Donahoo, Special Counsel Nicola Nygh and Associate Catherine Li report on a case that clarifies how the rules of natural justice apply to arbitration in Australia.

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  • Client Update: Further support for arbitration

    15 July 2014

    In a recent decision, the Victorian Court of Appeal has held that parties to an arbitration agreement cannot avoid arbitration by seeking to bring the claim in a statutory tribunal. Partner Nick Rudge and Lawyer James Waters report on a case that reinforces the trend of Australian courts to give effect to the international UNCITRAL Model Law in domestic disputes.

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  • Focus: Federal Court - another arbitration-friendly decision

    15 May 2014

    In a recent decision, the Federal Court dismissed an application to set aside an arbitral award rendered in Australia on the basis that it breached the rules of natural justice. In doing so, the court's decision recognised the limited scope of the grounds upon which an award can be set aside under Australia's applicable legislation. Partner Andrea Martignoni, Senior Associate Hilary Birks and Lawyer Anna McMahon report.

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  • Focus: The Japan-Australia Economic Partnership Agreement

    15 April 2014

    Australia and Japan have recently concluded negotiations on an economic agreement which will reduce tariff barriers on the majority of Australian exports to Japan. In contrast to the recently concluded Korea-Australia Free Trade Agreement, it does not include an investor-state dispute settlement mechanism. Partner Peter O'Donahoo, Senior Associate Hilary Birks and Lawyer Anna McMahon report.

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  • Focus: Asia Pacific international arbitration update

    9 April 2014

    We look at the inclusion of investor-state arbitration provisions in the recent Korea-Australia Free Trade Agreement and the possible inclusion of such provisions in the Trans-Pacific Partnership; a Singapore Court of Appeal decision that means parties challenging the jurisdiction of a tribunal have a choice of remedies; the ICC's new mediation rules; the commencement of the UNCITRAL Transparency Rules; recent investor state arbitrations involving Papua New Guinea; the termination by Indonesia of its Bilateral Investment Treaty with the Netherlands; appeal mechanisms in arbitration; and some recent Australian court decisions concerning arbitration.

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  • Focus: Investor-State dispute settlement under the Korea-Australia Free Trade Agreement

    6 March 2014

    In a shift from the previous Australian Government's position, a free trade agreement between Korea and Australia, which was recently concluded by the new Coalition Government will include investor-state dispute settlement clauses. Partner Peter O'Donahoo, Senior Associate Hilary Birks and Lawyer Anna McMahon report.

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  • Focus: Sidestepping arbitration clauses - a potentially explosive business!

    28 January 2014

    The Supreme Court of Western Australia has rejected a wide-ranging attack, by a contracting party preferring litigation to arbitration, on the operation of an arbitration clause. Partner Andrew Maher reports.

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  • Audio: Positive outlook for international arbitration in Australia

    12 December 2013

    Local and international arbitrators gathered in Sydney recently for Arbitration Week. Allens Partner and head of the firm's International Arbitration Group, Andrea Martignoni, spoke to BRR Media about the major issues raised during the week and the outlook for arbitration in Australia.

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  • Focus: Federal Court confirms pro-enforcement approach to foreign arbitration awards

    3 October 2013

    The Full Court of the Federal Court has dismissed an appeal from a Federal Court decision to enforce an award rendered in London, confirming a pro-enforcement attitude to foreign arbitration awards that gives significant weight to the decisions of courts at the seat of arbitration. The award debtors had already applied, unsuccessfully, to the English High Court of Justice to have the award set aside on procedural grounds. The Federal Court had agreed with the High Court's decision and further held that it would generally be inappropriate for an enforcement court applying the New York Convention to reach a different conclusion from the court at the seat of the arbitration. Partner Andrea Martignoni, Senior Associate James Morrison and Lawyer Theodore Souris report.

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  • Focus: Smooth sailing for arbitration clauses

    30 September 2013

    In a split decision, the Full Court of the Federal Court of Australia has signalled its support for upholding and enforcing arbitration clauses negotiated by sophisticated commercial parties. In this case, the court interpreted legislation that restricted the parties' ability to choose arbitration in 'sea carriage documents' so as to give effect to the parties' choice of arbitration in London as the dispute resolution method in a charter party for shipping goods from Australia. Partner Peter O'Donahoo, Special Counsel Nicola Nygh and Lawyer Laura Johnston report.

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  • Focus: New arbitration law for Western Australia

    16 September 2013

    New legislation implementing a major overhaul of arbitration law in Western Australia has come into effect. Partner Stephen McComish, Lawyer Kristian Maley, and Law Graduate Emma Cundale report on the Act that brings Western Australia into line with the uniform domestic arbitration law developed by the Standing Committee of Attorneys-General.

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  • Focus: Shifting investor-state arbitration into the public spotlight

    5 August 2013

    In response to public interest concerns, the United Nations Commission on International Trade Law has adopted new transparency rules for treaty-based investor-state arbitrations. By mandating greater disclosure of information and permitting third parties to intervene in proceedings, the new rules represent an important shift away from the privacy and confidentiality that have been traditional hallmarks of investor-state arbitration. Partner Andrea Martignoni, Senior Associate James Morrison and Lawyer Laura Johnston report.

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  • Focus: Myanmar accedes to the New York Convention

    18 July 2013

    In what will be seen as a positive move to attract inbound capital, Myanmar has formally acceded to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Allens Special Counsel Nicola Nygh and Linklaters Associate Steven Pettigrove report.

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  • Focus: Courts reinforce trend to interpret arbitration clauses widely

    20 May 2013

    Recent cases in the Federal Court and the Queensland Supreme Court show that courts are continuing to interpret arbitration clauses widely. Partner Nick Rudge and Senior Associate Nicholas Gallina report.

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  • Focus: Arbitration Round-up

    7 May 2013

    We look at the fifth edition of the Singapore International Arbitration Centre's rules; the willingness of the Singapore High Court to give effect to pathological arbitration clauses; a case that reinforces the broad discretion of arbitral tribunals in deciding procedure and case management in Hong Kong; whether an agreement to negotiate in good faith in a multi-tiered dispute resolution clause is enforceable in different jurisdictions; and a court's refusal to recognise an arbitral award where the underlying agreement was executed under duress. This issue has been edited by Partner Andrea Martignoni, Special Counsel Nicola Nygh and Senior Associate James Morrison.

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  • Focus: Courts uphold arbitration laws in Australia

    21 March 2013

    The High Court has upheld the constitutional validity of recent amendments to federal arbitration legislation that were made to strengthen Australia's international arbitration regime by better providing for the finality of arbitral awards. This follows a recent decision by the Supreme Court of New South Wales which preserved corresponding amendments to state legislation governing domestic arbitrations for largely the same reasons. Partner Andrea Martignoni, Special Counsel Nicola Nygh, Senior Associate Tom Randall and Lawyer Catherine Li report.

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  • Focus: Considering whether proportionate liability applies to arbitrations in WA

    13 December 2012

    The WA Supreme Court recently held that Western Australia's proportionate liability legislation does not of its own force apply to arbitral proceedings for disputes governed by WA law. Partner Brian Millar and Senior Associate Lixian Liang report.

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  • Focus: Arbitration Quarterly

    10 October 2012

    We look at a decision of the High Court of India that should make it easier to enforce foreign awards in that country; whether judicial acts are 'acts of state' for the purpose of the act of state doctrine; a notice of investment dispute that has been issued to the Mongolian Government under the bilateral investment treaty between Singapore and Mongolia; competition law as a 'mandatory' law for arbitration in Australia; and a decision to stay court proceedings in favour of arbitration made in the context of multiple agreements governed by multiple laws.

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  • Focus: Choosing the law for your international arbitration agreement

    18 June 2012

    With potentially important consequences for parties entering into contracts that have international arbitration clauses, the English Court of Appeal recently held that English law governed an agreement in a contract to arbitrate disputes, even though the parties had agreed that the laws of Brazil governed the underlying contract. Partner Brian Millar and Lawyer Tom Levi consider the effect of this on the drafting of commercial contracts.

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  • Focus: Arbitration Quarterly

    16 May 2012

    We report on whether the recent amendments to section 21 of the International Arbitration Act 1974 (Cth) have retrospective effect; India's breach of the Australia-India bilateral investment treaty; a Federal Court of Australia decision enforcing an award made in England despite ongoing setting aside proceedings in India; a Queensland Supreme Court decision setting aside an award on due process grounds; proposed amendments to Singapore's International Arbitration Act; and New South Wales as a venue for international arbitration

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  • Focus: Hong Kong enforces PRC 'med-arb' award

    10 January 2012

    In brief: Hong Kong's pro-enforcement approach to arbitral awards has been confirmed by a recent Court of Appeal decision. It overturns the lower court's order refusing to enforce a PRC arbitral award on the ground of apprehended bias due to the way a 'med-arb' process was conducted. Partner Mun Yeow and Senior Associate Morgana Brady report

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  • Focus: Arbitral award enforced against a company in administration

    30 November 2011

    In two recent related decisions, the NSW Supreme Court has lifted the statutory moratorium on proceedings against a company in administration and allowed a plaintiff to enforce an arbitral award against the company. Partner Michael Quinlan, Special Counsel Nicola Nygh and Lawyer Jonathan Adamopoulos report

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  • Focus: New rules to streamline arbitration process

    13 October 2011

    New International Chamber of Commerce Rules of Arbitration will streamline the arbitral process and aid its efficiency. The new rules also take into account the increasing complexity of arbitrations by better accommodating multiple parties and contracts. Partner Duncan Travis, Special Counsel Nicola Nygh and Law Graduate Edmund Robinson report

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  • Focus: High Court untangles the Gordian knot

    10 October 2011

    A recent High Court decision is significant for all parties involved in arbitrations or whose contracts contain arbitration clauses, and for reinsurers whose contracts are subject to New South Wales law. Partner Michael Quinlan, Lawyer Mitch Riley and Paralegal Ashleigh Shand explain

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  • Client Update: Arbitration, religion and discrimination

    6 October 2011

    Could an arbitration agreement stipulate the religion of an arbitrator without breaching anti-discrimination laws? Partner Stephen McComish, Lawyer Kristian Maley and Law Graduate Samantha Lord report on an important decision of the UK Supreme Court that could have ramifications for businesses within our region

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  • Focus: Draft model proportionate liability legislation to reform system

    21 September 2011

    Multiple defendants will find it easier to attract proportionate liability to claims made against them under draft model legislation to reform Australia's proportionate liability laws. Partner Paul Nicols and Senior Associate Philip Hopley report on the proposals, which have been released for public consultation

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  • Focus: Enforcement of foreign arbitral awards in Australia

    15 September 2011

    The Victorian Court of Appeal has clarified a number of important issues regarding the enforcement of foreign arbitral awards in Australia. Partner Peter O'Donahoo, Senior Associate Andrew Barraclough and Lawyer Tim Maxwell report

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  • Focus: Adjourning the enforcement of a foreign arbitral award

    12 September 2011

    A recent Federal Court decision gives insight into the circumstances under which a court may adjourn the enforcement of a foreign arbitral award that is the subject of an appeal in the courts of the seat of the arbitration. Partner Nick Rudge, Special Counsel Nicola Nygh and Lawyer Tom Levi report on a case that deals with the uniformity of recognition and enforcement of foreign arbitral awards

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  • Focus: Hong Kong's new Arbitration Ordinance

    27 July 2011

    The new Arbitration Ordinance simplifies Hong Kong's arbitration law, unifying the different regimes for 'domestic' and 'international' arbitration. This should strengthen its status as a leading jurisdiction for international dispute resolution. Partner Simon McConnell and Senior Associate Kieran Humphrey discuss the key changes

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  • Audio: Will class action waivers be enforceable?

    19 July 2011

    A recent United States Supreme Court decision found that arbitration clauses with class action waivers can be used in standard form customer contracts. Partner Duncan Travis spoke to Boardroom Radio about the reasoning behind the decision and the possible implications for Australian businesses

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  • Focus: Arbitrability of insolvency related claims denied

    8 July 2011

    The Court of Appeal of Singapore recently upheld a High Court decision that insolvency related avoidance claims are not arbitrable, as they relate to a type of dispute that only the courts can resolve. Partner Matthew Skinner, Senior Associate Justin Simpkins and Lawyer Tom Levi report

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  • Focus: No default option to litigate in dispute resolution clause

    7 July 2011

    A recent New South Wales Court of Appeal decision has continued the trend of interpreting alternative dispute resolution clauses consistently with commercial commonsense. Partner Brian Millar and Senior Associate Matthew Senescall report on the decision, and consider the lessons for parties interpreting existing dispute resolution procedures and negotiating those clauses in future contracts

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  • Focus: Absolute state immunity prevents enforcement in Hong Kong

    29 June 2011

    Hong Kong's Court of Final Appeal recently held that no state may be sued in Hong Kong's courts unless the state waives its immunity, and that submitting to arbitration does not constitute a waiver. This will have a major impact on any business wanting to enforce a claim against a state's assets in Hong Kong. For the first time, the court also referred questions about the interpretation of Hong Kong's Basic Law to the standing committee of the National People's Congress in Beijing. Partner Simon McConnell, Special Counsel Nicola Nygh, and Law Graduate Edmund Robinson report on the court's decision

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  • Focus: Resurgence of dispute review boards

    7 June 2011

    Proponents of some recent landmark Australian infrastructure projects, such as the Gateway Upgrade in Queensland, the Harvey Dam in Western Australia, and the desalination plants in Adelaide and Sydney, have chosen to administer their contracts using dispute review boards, reflecting their success in avoiding disputes, or preventing disputes from escalating while construction works are in progress. Partner Brian Millar, Lawyer Michael Tollman and Law Graduate Tom Tian report on a growing trend

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  • Focus: International arbitration: dispute remains on Australian shores

    20 May 2011

    The Federal Court recently declined to stay or adjourn court proceedings in respect of a shipping dispute pending the outcome of related arbitration proceedings in Singapore. Partner Oscar Shub, Senior Associate Damian Watkin and Lawyer Tom Levi report on the decision in the context of international arbitration in Australia

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  • Client Update: Mandatory pre-litigation dispute resolution procedures in Federal and Victorian courts

    30 March 2011

    The Commonwealth and Victorian parliaments have recently enacted legislation concerning mandatory pre-litigation dispute resolution procedures. While the Commonwealth Parliament has mandated 'genuine steps' to resolve disputes, the Victorian Parliament has repealed the mandatory pre-litigation requirements prescribed by previous legislation (but it has given the courts the power to determine what pre-litigation requirements should be followed). Partner Andrew Maher and Senior Associate Eleanor Fletcher look at the differing approaches

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  • Focus: Federal Court confirms Australia's pro-arbitration policy

    8 March 2011

    The Federal Court has confirmed that Australian courts will adopt a pro-arbitration approach in relation to the enforcement of foreign awards. Partner Stephen McComish and Lawyer Kristian Maley report

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