International Construction Law Review
THE ROLE AND ATTITUDE OF THE COURTS IN AUSTRALIA IN RELATION TO INTERNATIONAL COMMERCIAL ARBITRATION
JENNIFER GALATAS
Freehills, Melbourne, Australia
1. INTRODUCTION
International commercial arbitration depends, for its full effectiveness, on the support of a relevant system of law. The Australian courts therefore have an important role in the conduct of international arbitrations, particularly in relation to curial or procedural matters. However, it is equally true to say that international commercial arbitration can only truly flourish in locales where there is a hospitable legal environment characterised by judicial support, but limited intervention. The role and attitude of the Australian courts towards international arbitration and, in particular, the extent to which they are willing to support and enforce the intention of parties to resolve their disputes through international arbitration, is critical to whether international arbitration develops as a legitimate method of alternative dispute resolution in Australia. This, in turn, affects whether international disputants choose to arbitrate their disputes in Australia and ultimately, the extent to which Australia develops as an international commercial arbitration centre in the Asia-Pacific region.
With these considerations in mind, this paper seeks to examine the role and attitude of the Australian courts towards international commercial arbitration. It will focus on areas of the law that provide the courts with a broad discretion such as where considerations of the “public interest” arise which provide the courts with an opportunity to weigh the competing interests of supporting the development of international arbitration and protecting national interests. It is contended that the Australian courts have adopted a somewhat ambivalent attitude towards international commercial arbitration that is characterised by a recognition of its many advantages and popularity in recent years, while at the same time being cautious to ensure that judicial power and discretion is preserved to the fullest extent possible.
1.1 Outline
This paper is divided into four further sections.
Section 2 briefly examines the legislative regime for international commercial arbitration in Australia. It is essential that we understand the
[2005
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