Page 773 - Week 03 - Tuesday, 21 March 2017

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At its core, this legislation is about improved alternative dispute resolution. It provides an avenue for commercial matters to be settled in a way agreed to by the parties to a transaction. The role of the court in commercial arbitration proceedings under the bill is limited to assisting and supervising the arbitration proceedings where necessary, including assisting a party to obtain evidence before the arbitral tribunal. This may include issuing subpoenas to attend before or produce documents to the arbitral tribunal on application by a party. A party can apply to the court where there is disagreement about the appointment of an arbitrator or to challenge an arbitrator’s appointment if there is a danger of bias on the arbitrator’s part. But the circumstances under which an agreement to arbitrate can be reversed are, by design, limited.

Including the requirement that people abide by their agreements means the ACT cannot become a haven for litigants who want out of these rules. More importantly, it means that the ACT is on an equal footing with other places if a business decides to choose arbitration here. I do not expect that there will be a substantial change in the number of corporations choosing the ACT for arbitrations. But it is important that where there are opportunities to place the ACT in a competitive position, we take them.

In terms of the arbitration process itself, this bill offers improvements over existing legislation in the ACT. The bill promotes the autonomy and participation of the parties, who have more freedom to tailor the arbitral procedures to their needs under this bill than under the existing Commercial Arbitration Act 1986. If the parties cannot agree about the conduct of tribunal proceedings, the decision about procedures defaults to the arbitrator. The bill gives the arbitrator greater powers to prevent delays and abuses of the arbitration process.

This bill also includes an important consensual “opt out” provision for the privacy and confidentiality of the arbitration, which is not included in the Commercial Arbitration Act 1986. Confidentiality is a key benefit of arbitration for parties who may well have sensitive commercial interests. The bill provides that, by default, everyone involved in the arbitration must maintain the confidentiality of the proceedings unless the parties have all agreed to disclosure. The bill provides for balance by establishing limited grounds for the disclosure of confidential information. For example, a court may make orders about the disclosure of information from arbitration proceedings if there is a public interest reason for doing so.

The Commercial Arbitration Bill will ensure that arbitration agreements are treated the same in the ACT as elsewhere in Australia. It will also improve the arbitration process in the territory by introducing new and updated legislative provisions. Commercial arbitrations provide an efficient and cost-effective alternative to litigation in the courts for businesses. This bill is a way in which the ACT government can improve confidence for businesses and our local and national economy. I commend the bill to the Assembly.

Question resolved in the affirmative.

Bill agreed to in principle.

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