1989年澳大利亚(修订)国际商事仲裁法
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【发布机构】 澳大利亚
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【发布日期】 2014年08月01日
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The Australian International Arbitration Act

 

The International Arbitration Amendment Act 1989 has now been passed by the Senate and entered into force on 16 June 1989, whereupon the UNCITRAL Model Law came into operation in Australia without amendment to its text. The operative parts of Part III of the 1989 Act as now enacted are:

 

“Division 1 – Preliminary

Interpretation

15. 

(1) In this Part:

‘Model Law’ means the UNCITRAL Model Law’ on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985, the English text of which is set out in Schedule 2.

(2) Except so far as the contrary intention appears, a word or expression that is used both in this Part and in the Model Law (whether or not a particular meaning is given to it by the Model Law) has, in this Part, the same meaning as it has in the Model Law.”

 

“Division 2 – Model Law

Model Law to have force of law

16. 

(1) Subject to this Part, the Model Law has the force of law in Australia.

 “ (2) In the Model Law:

‘State’ means Australia (including the external Territories) and any foreign country; ‘this State’ means Australia (including the external Territories).

 

Interpretation of Model Law – use of extrinsic material

17. 

(1) For the purposes of interpreting the Model Law, reference may be made to the documents of:

(a) the United Nations Commission on International Trade Law; and

(b) its working group for the preparation of the Model Law; relating to the Model Law.

“ (2) Subsection (1) does not affect the application of section 15AB of the Acts Interpretation Act 1901 for the purposes of interpreting this Part.

 

Courts specified for purposes of Article 6 of Model Law

18  .The following courts shall be taken to have been specified in Article 6 of the Model Law as courts competent to perform the functions referred to in that article.

(a) if the place of arbitration is, or is to be, in a State the Supreme Court of that State;

(b) if the place of arbitration is, or is to be, in a Territory;

(i) the Supreme Court of that Territory; or

(ii) if there is no Supreme Court established in that Territory the Supreme Court of the State or Territory that has jurisdiction in relation to that Territory.

 

Articles 34 and 36 of Model Law – public policy

19.  Without limiting the generality of subparagraphs 34 (2) (b) (ii) and 36 (1) (b) (ii) of the Model Law, it is hereby declared, for the avoidance of any doubt, that, for the purposes of those subparagraphs, an award is in conflict with the public policy of Australia if:

(a) the making of the award was induced or affected by fraud or corruption; or

(b) a breach of the rules of natural justice occurred in connection with the making of the award.

 

Chapter VIII of Model Law not to apply in certain cases

20.  Where, but for this section, both Chapter VIII of the Model Law and Part II of this Act would apply in relation to an award, Chapter VIII of the Model Law does not apply in relation to the award.

Settlement of dispute otherwise than in accordance with Model Law

21.  If the parties to an arbitration agreement have (whether in the agreement or in any other document in writing) agreed that any dispute that has arisen or may arise between them is to be settled otherwise than in accordance with the Model Law, the Model Law does not apply in relation to the settlement of that dispute.”

“Division 3 – Optional provisions

Application of optional provisions

22.  If the parties to an arbitration agreement have (whether in the agreement or in any other document in writing) agreed that the other provisions, or any of the other provisions, of this Division are to apply in relation to the settlement of any dispute (being a dispute that is to be settled in accordance with the Model Law) that has arisen or may arise between them, those provisions apply in relation to the settlement of that dispute.

Orders under Article 17 of the Model Law

23.  Chapter VIII of the Model Law applies to orders by an arbitral tribunal under Article 17 of the Model Law requiring a party:

(a) to take an interim measure of protection; or

(b) to provide security in connection with such a measure;

as if any reference in that chapter to an arbitral award or an award were a reference to such an order.

Consolidation of arbitral proceedings

24. 

(1) A party to arbitral proceedings before an arbitral tribunal may apply to the tribunal for an order under this section in relation to those proceedings and other arbitral proceedings (whether before that tribunal or another tribunal or other tribunals) on the ground that:

(a) a common question of law of fact arises in all those proceedings;

(b) the rights to relief claimed in all those proceedings are in respect or, or arise out of, the same transaction or series of transactions; or

(c) for some other reason specified in the application, it is desirable that an order be made under this section.

(2) The following orders may be made under this section in relation to 2 or more arbitral proceedings:

(a) that the proceedings be consolidated on terms specified in the order;

(b) that the proceedings be heard at the same time or in a sequence specified in the order;

(c) that any of the proceedings be stayed pending the determination of any other of the proceedings.

(3) Where an application has been made under subsection (1) in relation to 2 or more arbitral proceedings (in this section called the ‘related proceedings’), the following provisions have effect.

(4) If all the related proceedings are being heard by the same tribunal, the tribunal may make such order under this section as it thinks fit in relation to those proceedings and, if such an order is made, the proceedings shall be dealt with in accordance with the order.

(5) If 2 or more arbitral tribunals are hearing the related proceedings:

(a)

the tribunal that received the application shall communicate the substance of the application to the other tribunals concerned; and

(b)

the tribunals shall, as soon as practicable, deliberate jointly on the application.

(6) Where the tribunals agree, after deliberation on the application, that a particular order under this section should be made in relation to the related proceedings:

(a) the tribunals shall jointly make the order;

(b) the related proceedings shall be dealt with in accordance with the order; and

(c) if the order is that the related proceedings be consolidated-the arbitrator or arbitrators for the purposes of the consolidated proceedings shall be appointed, in accordance with Articles 10 and 11 of the Model Law, from the members of the tribunals.

(7) If the tribunals are unable to make an order under subsection (6), the related proceedings shall proceed as if no application has been made under subsection (1).

(8) This section does not prevent the parties to related proceedings from agreeing to consolidate them and taking such steps as are necessary to effect that consolidation.

 

Interest up to making of award

25. 

(1) Unless the parties to an arbitration agreement have (whether in the agreement or in any other document in writing) otherwise agreed, where an arbitral tribunal determines to make an award for the payment of money (whether on a claim for a liquidated or an unliquidated amount), the tribunal may, subject to subsection (2), include in the sum for which the award is made interest, at such reasonable rate as the tribunal determines on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.

(2) Subsection (1) does not,

(a) authorise the awarding of interest upon interest;

(b) apply in relation to any amount upon which interest is payable as of right whether by virtue of an agreement or otherwise, or

(c) affect the damages recoverable for the dishonour of a bill of exchange.

 

Interest on debt under award

26.  Unless the parties to an arbitration agreement have (whether in the agreement or in any other document in writing) otherwise agreed, where an arbitral tribunal makes an award for the payment of money, the tribunal may direct that interest, at such reasonable rate as the tribunal determines, is payable, from the day of the making of the award or such later day as the tribunal specifies, on so much of the money as is from time to time unpaid and any interest that so accrues shall be deemed to form part of the award.

Costs

27. 

(1) Unless the parties to an arbitration agreement have (whether in the agreement or in any other document in writing) otherwise agreed, the costs of an arbitration (including the fees and expenses of the arbitrator or arbitrators) shall be in the discretion of the arbitral tribunal.

(2) An arbitral tribunal may in making an award:

(a) direct to whom, by whom, and in what manner, the whole or any part of the costs that it awards shall be paid;

(b) tax or settle the amount of costs to be so paid or any part of those costs; and

(c) award costs to be taxed or settled as between party and party or as between solicitor and client.

(3) Any costs of an arbitration (other than the fees or expenses of an arbitrator) that are directed to be paid by an award are, to the extent that they have not been taxed or settled by the arbitral tribunal, taxable in the Court having jurisdiction under Article 34 of the Model Law to hear applications for setting aside the award.

(4) If no provision is made by an award with respect to the costs of the arbitration, a party to the arbitration agreement may, within 14 days after receiving the award, apply to the arbitral tribunal for directions as to the payment of those costs, and thereupon the tribunal shall, after hearing any party who wishes to be heard, amend the award by adding to it such directions as the tribunal thinks proper with respect to the payment of the costs of the arbitration.”

 

“Division 4 – Miscellaneous

Liability of arbitrator

28.  An arbitrator is not liable for negligence in respect of anything done or omitted to be done in the capacity of arbitrator, but is liable for fraud in respect of anything done or omitted to be done in that capacity.

Representation in proceedings

29. 

(1) Where, in accordance with the Model Law, with the agreement of the parties or at the request of a party, as the case may be, the arbitral tribunal holds oral hearings for the presentation of evidence or for oral argument, or conducts proceedings on the basis of documents or other materials, the following provisions shall, without prejudice to the Model Law, apply.

(2) A party may appear in person before an arbitral tribunal and may be represented:

(a)

by himself or herself;

(b)

by a duly qualified legal practitioner from any legal jurisdiction of that party’s choice; or

(c)

by any other person of that party’s choice.

(3) A legal practitioner or a person, referred to in paragraphs (2) (b) or (c) respectively, while acting on behalf of a party to an arbitral proceeding to which Part III applies, including appearing before an arbitral tribunal, shall not thereby be taken to have breached any law regulating admission to, or the practice of, the profession of the law within the legal jurisdiction in which the arbitral proceedings are conducted.

(4) Where, subject to the agreement of the parties, an arbitral tribunal conducts proceedings on the basis of documents and other materials, such documents and materials may be prepared and submitted by any legal practitioner or person who would, under subsection (2), be entitled to appear before the tribunal, and, in such a case, subsection (3) shall apply with the same force and effect to such a legal practitioner or person.

 

Application of Part

30.  This Part does not apply in relation to an international commercial arbitration between parties to an arbitration agreement that was concluded before the commencement of this Part unless the parties have (whether in the agreement or in any other document in writing) otherwise agreed.

New Schedule

8.  The Principal Act is amended by adding at the end the Schedule set out in Schedule I to this Act [i.e. the UNCITRAL Model Law]...”