{"id":"commercial-arbitration-act-2011","name":"Commercial Arbitration Act 2011","slug":"commercial-arbitration-act-2011","collection":"act","jurisdiction":"sa","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":31781,"registerId":"sa-commercial-arbitration-act-2011-current","compilationNumber":null,"startDate":"2026-04-01","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Commercial Arbitration Act 2011","content":"South Australia\nCommercial Arbitration Act 2011\nAn Act relating to the conduct of commercial arbitrations; to amend the Commercial Arbitration and Industrial Referral Agreements Act 1986; and for other purposes.\n\nContents\nPart 1A—Preliminary\n1A\tShort title\n1B\tCommencement\n1C\tParamount object of Act\nPart 1—General provisions\n1\tScope of application\n2\tDefinitions and rules of interpretation\n2A\tInternational origin and general principles\n3\tReceipt of written communications\n4\tWaiver of right to object\n5\tExtent of court intervention\n6\tCourt for certain functions of arbitration assistance and supervision\nPart 2—Arbitration agreement\n7\tDefinition and form of arbitration agreement\n8\tArbitration agreement and substantive claim before court\n9\tArbitration agreement and interim measures by court\nPart 3—Composition of arbitral tribunal\n10\tNumber of arbitrators\n11\tAppointment of arbitrators\n12\tGrounds for challenge\n13\tChallenge procedure\n14\tFailure or impossibility to act\n15\tAppointment of substitute arbitrator\nPart 4—Jurisdiction of arbitral tribunal\n16\tCompetence of arbitral tribunal to rule on its jurisdiction\nPart 4A—Interim measures\nDivision 1—Interim measures\n17\tPower of arbitral tribunal to order interim measures\n17A\tConditions for granting interim measures\nDivision 2—Preliminary orders\nDivision 3—Provisions applicable to interim measures\n17D\tModification, suspension, termination\n17E\tProvision of security\n17F\tDisclosure\n17G\tCosts and damages\nDivision 4—Recognition and enforcement of interim measures\n17H\tRecognition and enforcement\n17I\tGrounds for refusing recognition or enforcement\nDivision 5—Court-ordered interim measures\n17J\tCourt-ordered interim measures\nPart 5—Conduct of arbitral proceedings\n18\tEqual treatment of parties\n19\tDetermination of rules of procedure\n20\tPlace of arbitration\n21\tCommencement of arbitral proceedings\n22\tLanguage\n23\tStatements of claim and defence\n24\tHearings and written proceedings\n24A\tRepresentation\n24B\tGeneral duties of parties\n25\tDefault of party\n26\tExpert appointed by arbitral tribunal\n27\tCourt assistance in taking evidence\n27A\tParties may obtain subpoenas\n27B\tRefusal or failure to attend before arbitral tribunal or to produce document\n27C\tConsolidation of arbitral proceedings\n27D\tPower of arbitrator to act as mediator, conciliator or other non‑arbitral intermediary\n27E\tDisclosure of confidential information\n27F\tCircumstances in which confidential information may be disclosed\n27G\tArbitral tribunal may allow disclosure of confidential information in certain circumstances\n27H\tCourt may prohibit disclosure of confidential information in certain circumstances\n27I\tCourt may allow disclosure of confidential information in certain circumstances\n27J\tDetermination of preliminary point of law by Court\nPart 6—Making of award and termination of proceedings\n28\tRules applicable to substance of dispute\n29\tDecision-making by panel of arbitrators\n30\tSettlement\n31\tForm and contents of award\n32\tTermination of proceedings\n33\tCorrection and interpretation of award; additional award\n33A\tSpecific performance\n33B\tCosts\n33C\tApplication of Legal Profession Acts\n33D\tCosts of abortive arbitration\n33E\tInterest up to making of award\n33F\tInterest on debt under award\nPart 7—Recourse against award\n34\tApplication for setting aside as exclusive recourse against arbitral award\n34A\tAppeals against awards\nPart 8—Recognition and enforcement of awards\n35\tRecognition and enforcement\n36\tGrounds for refusing recognition or enforcement\nPart 9—Miscellaneous\n37\tDeath of party\n38\tInterpleader\n39\tImmunity\n40\tAct to bind Crown\n41\tCourt rules\n42\tRegulations\nSchedule 1—Related amendments and transitional provisions\nPart 1—Preliminary\n1\tAmendment provisions\nPart 2—Amendment of Commercial Arbitration and Industrial Referral Agreements Act 1986\n2\tAmendment of long title\n3\tAmendment of section 1—Short title\n4\tRepeal of sections 3 to 56\n5\tRedesignation of section 57\n6\tAmendment, redesignation and relocation of Schedule 1 clauses 1 and 2\n7\tRepeal of Part and Schedule headings\nPart 3—Savings, transitional and other provisions\n8\tSavings and transitional provisions\n9\tOther provisions\nLegislative history\n\nThe Parliament of South Australia enacts as follows:\nPart 1A—Preliminary\nNote—\nMany sections of this Act are substantially the same as the provisions of the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985 with amendments as adopted by that Commission in 2006). Some changes have been made to those provisions of the Act based on the UNCITRAL Model Law to amend or supplement the provisions in their application to domestic arbitrations in South Australia or to accommodate modern drafting styles and conventions (for example, provisions are drafted in gender neutral terms and archaisms are replaced with modern alternatives). Notes draw attention to substantive changes. The original numbering of the \"articles\" of the UNCITRAL Model Law has been retained but converted to references to \"sections\" and articles containing more than one sentence have been re‑formatted into subsections. There are a number of additional provisions to those based on the UNCITRAL Model Law.\n1A—Short title\nThis Act may be cited as the Commercial Arbitration Act 2011.\n1B—Commencement\nThis Act will come into operation on a day to be fixed by proclamation.\n1C—Paramount object of Act\n\t(1)\tThe paramount object of this Act is to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense.\n\t(2)\tThis Act aims to achieve its paramount object by—\n\t(a)\tenabling parties to agree about how their commercial disputes are to be resolved (subject to subsection (3) and such safeguards as are necessary in the public interest); and\n\t(b)\tproviding arbitration procedures that enable commercial disputes to be resolved in a cost effective manner, informally and quickly.\n\t(3)\tThis Act must be interpreted, and the functions of an arbitral tribunal must be exercised, so that (as far as practicable) the paramount object of this Act is achieved.\n\t(4)\tSubsection (3) does not affect the application of section 22 of the Acts Interpretation Act 1915 for the purposes of interpreting this Act.\nPart 1—General provisions\n1—Scope of application\n\t(1)\tThis Act applies to domestic commercial arbitrations.\nNote—\nThe International Arbitration Act 1974 of the Commonwealth covers international commercial arbitrations and the enforcement of foreign arbitral awards.\n\t(2)\tThe provisions of this Act, except sections 8, 9, 17H, 17I, 17J, 35 and 36, apply only if the place of arbitration is in South Australia.\n\t(3)\tAn arbitration is domestic if—\n\t(a)\tthe parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in Australia; and\n\t(b)\tthe parties have (whether in the arbitration agreement or in any other document in writing) agreed that any dispute that has arisen or may arise between them is to be settled by arbitration; and\n\t(c)\tit is not an arbitration to which the Model Law (as given effect by the International Arbitration Act 1974 of the Commonwealth) applies.\n\t(4)\tFor the purposes of subsection (3)—\n\t(a)\tif a party has more than 1 place of business, the place of business is that which has the closest relationship to the arbitration agreement; and\n\t(b)\tif a party does not have a place of business, reference is to be made to the party's habitual residence.\n\t(5)\tThis Act does not affect any other Act by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Act.\n\t(6)\tSubject to subsection (5), this Act applies to arbitrations provided for in any other Act as if—\n\t(a)\tthe other Act were an arbitration agreement; and\n\t(b)\tthe arbitration were pursuant to an arbitration agreement; and\n\t(c)\tthe parties to the dispute which, by virtue of the other Act, is referred to arbitration were the parties to the arbitration agreement,\nexcept in so far as the other Act otherwise indicates or requires.\nModel Law note—\nThe term \"commercial\" should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business co‑operation; carriage of goods or passengers by air, sea, rail or road.\nNote—\nThis section differs from the Model Law to the extent necessary to apply Art 1 as incorporated in this Act to domestic commercial arbitrations. Section 40 contains provisions that also relate to the application of this Act.\n2—Definitions and rules of interpretation\n\t(1)\tIn this Act—\narbitral tribunal means a sole arbitrator or a panel of arbitrators;\narbitration means any domestic commercial arbitration whether or not administered by a permanent arbitral institution;\narbitration agreement—see section 7;\nconfidential information, in relation to arbitral proceedings, means information that relates to the arbitral proceedings or to an award made in those proceedings and includes the following:\n\t(a)\tthe statement of claim, statement of defence and all other pleadings, submissions, statements or other information supplied to the arbitral tribunal by a party;\n\t(b)\tany information supplied by a party to another party in compliance with a direction of the arbitral tribunal;\n\t(c)\tany evidence (whether documentary or otherwise) supplied to the arbitral tribunal;\n\t(d)\tany notes made by the arbitral tribunal of oral evidence or submissions given before the arbitral tribunal;\n\t(e)\tany transcript of oral evidence or submissions given before the arbitral tribunal;\n\t(f)\tany rulings of the arbitral tribunal;\n\t(g)\tany award of the arbitral tribunal;\nCourt means, subject to section 6(2), the Supreme Court;\ndisclose, in relation to confidential information, includes publishing or communicating or otherwise supplying the confidential information;\ndomestic commercial arbitration—see section 1;\nexercise a function includes perform a duty;\nfunction includes a power, authority or duty;\ninterim measure—see section 17;\nModel Law means the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended by the United Nations Commission on International Trade Law on 7 July 2006);\nparty means a party to an arbitration agreement and includes—\n\t(a)\tany person claiming through or under a party to the arbitration agreement; and\n\t(b)\tin any case where an arbitration does not involve all of the parties to the arbitration agreement, those parties to the arbitration agreement who are parties to the arbitration.\nNote—\nThe definitions of arbitration agreement, confidential information, disclose, domestic commercial arbitration, exercise, function, interim measure, Model Law, party and Court are not included in the Model Law.\n\t(2)\tIf a provision of this Act, except section 28, leaves the parties free to determine a certain issue, such freedom includes the right of the parties to authorise a third party, including an institution, to make that determination.\n\t(3)\tIf a provision of this Act refers to the fact that the parties have agreed or that they may agree or in any other way refers to an agreement of the parties, such agreement includes any arbitration rules referred to in that agreement.\n\t(4)\tIf a provision of this Act, other than sections 25(1)(a) and 32(2)(a), refers to a claim, it also applies to a counter‑claim, and if it refers to a defence, it also applies to a defence to such counter‑claim.\n\t(5)\tNotes (other than the Model Law note to section 1) included in this Act do not form part of this Act.\nNote—\nThis subsection is not included in the Model Law.\n2A—International origin and general principles\n\t(1)\tSubject to section 1C, in the interpretation of this Act, regard is to be had to the need to promote so far as practicable uniformity between the application of this Act to domestic commercial arbitrations and the application of the provisions of the Model Law (as given effect by the International Arbitration Act 1974 of the Commonwealth) to international commercial arbitrations and the observance of good faith.\n\t(2)\tWithout limiting subsection (1), in interpreting this Act, reference may be made to the documents relating to the Model Law of—\n\t(a)\tthe United Nations Commission on International Trade Law; and\n\t(b)\tits working groups for the preparation of the Model Law.\nNote—\nThis section differs from the Model Law. Art 2A(1) has been changed as a consequence of the application of the Act to domestic (instead of international) commercial arbitrations. Art 2A(2) is omitted because it is covered by the provision referred to in section 1C(4). Subsection (3) reflects as far as is relevant in South Australia section 17 of the International Arbitration Act 1974 of the Commonwealth.\n3—Receipt of written communications\n\t(1)\tUnless otherwise agreed by the parties—\n\t(a)\tany written communication is taken to be received if—\n\t(i)\tit is delivered to the addressee personally; or\n\t(ii)\tit is delivered at the addressee's place of business, habitual residence or mailing address; or\n\t(iii)\tif none of these can be found after making a reasonable inquiry, it is delivered to the addressee's last‑known place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it; and\n\t(b)\tthe communication is taken to have been received on the day it is so delivered.\n\t(2)\tThe provisions of this section do not apply to communications in court proceedings.\n4—Waiver of right to object\nA party who knows that any provision of this Act from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating the party's objection to such non‑compliance without undue delay or, if a time limit is provided for stating the party's objection, within such period of time, is taken to have waived the party's right to object.\n5—Extent of court intervention\nIn matters governed by this Act, no court must intervene except where so provided by this Act.\n6—Court for certain functions of arbitration assistance and supervision\n\t(1)\tThe functions referred to in sections 11(3) and (4), 13(4), 14(2), 16(9), 17H—17J, 19(6), 27—27B, 27H—27J, 33D, 34 and 34A are, subject to subsection (2), to be performed by the Supreme Court.\n\t(2)\tIf—\n\t(a)\tan arbitration agreement provides that the District Court or Magistrates Court is to have jurisdiction under this Act; or\n\t(b)\tthe parties to an arbitration agreement have agreed in writing that the District Court or Magistrates Court is to have jurisdiction under this Act and that agreement is in force,\nthe functions are to be performed, in relation to that agreement, by the District Court or Magistrates Court, as the case requires.\nNote—\nThis section differs from the Model Law to the extent that it relates to functions conferred on the Court with respect to domestic commercial arbitrations that are not referred to in the Model Law.\nPart 2—Arbitration agreement\n7—Definition and form of arbitration agreement\n\t(1)\tAn arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.\n\t(2)\tAn arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.\n\t(3)\tThe arbitration agreement must be in writing.\n\t(4)\tAn arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means.\n\t(5)\tThe requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained in it is accessible so as to be useable for subsequent reference.\n\t(6)\tIn this section—\ndata message means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), email, telegram, telex or telecopy;\nelectronic communication means any communication that the parties make by means of data messages.\n\t(7)\tFurthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by 1 party and not denied by the other.\n\t(8)\tThe reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract.\nNote—\nThis section is substantially the same as Option 1 set out in Art 7 of the Model Law.\n8—Arbitration agreement and substantive claim before court\n\t(1)\tA court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party's first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.\n\t(2)\tIf an action referred to in subsection (1) has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.\n9—Arbitration agreement and interim measures by court\nIt is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant the measure.\nPart 3—Composition of arbitral tribunal\n10—Number of arbitrators\n\t(1)\tThe parties are free to determine the number of arbitrators.\n\t(2)\tFailing such determination, the number of arbitrators is to be 1.\nNote—\nSubsection (2) differs from Art 10(2) of the Model Law, which provides for 3 arbitrators if the parties do not determine the number of arbitrators.\n11—Appointment of arbitrators\n\t(1)\tThe parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of subsections (3) and (4).\n\t(2)\tFailing such agreement—\n\t(a)\tin an arbitration with 3 arbitrators and 2 parties, each party is to appoint 1 arbitrator, and the 2 arbitrators so appointed are to appoint the third arbitrator; if a party fails to appoint the arbitrator within 30 days of receipt of a request to do so from the other party, or if the 2 arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment is to be made, on the request of a party, by the Court; and\n\t(b)\tin an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, an arbitrator is to be appointed, on the request of a party, by the Court; and\n\t(c)\tin an arbitration with 2, 4 or more arbitrators or with 3 arbitrators and more than 2 parties the appointment is to be made, at the request of a party, by the Court.\n\t(3)\tIf, under an appointment procedure agreed on by the parties—\n\t(a)\ta party fails to act as required under the procedure; or\n\t(b)\tthe parties, or 2 or more arbitrators, are unable to reach an agreement expected of them under the procedure; or\n\t(c)\ta third party, including an institution, fails to perform any function entrusted to it under the procedure,\nany party may request the Court to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.\n\t(4)\tA decision within the limits of the Court's authority on a matter entrusted by subsection (2) or (3) to the Court is final.\n\t(5)\tThe Court, in appointing an arbitrator, is to have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator.\nNote—\nArt 11(1) of the Model Law (which provides that no person is precluded by nationality from acting as an arbitrator unless otherwise agreed by the parties) has been omitted.\nThis section (other than subsections (2)(c), (4) and (5)) is substantially the same as Art 11 of the Model Law. Subsection (2)(c) is added to cover the contingency of the parties failing to agree on the procedure to appoint arbitrators in certain circumstances not covered by the Model Law as incorporated in this Act. It is based on clause 11(6) of Schedule 1 to the Arbitration Act 1996 (NZ). Subsection (4) makes it clear that, although a decision of the Court is generally final, review of a decision of the Court that is not made within the limits of its powers and functions is not precluded. Subsection (5) does not include the requirement in Art 11(5) of the Model Law that the Court take into account the advisability of appointing an arbitrator of a nationality other than those of the parties in appointing a sole or third arbitrator as this is not relevant in the context of domestic commercial arbitrations.\n12—Grounds for challenge\n\t(1)\tWhen a person is approached in connection with the person's possible appointment as an arbitrator, the person must disclose any circumstances likely to give rise to justifiable doubts as to the person's impartiality or independence.\n\t(2)\tAn arbitrator, from the time of the arbitrator's appointment and throughout the arbitral proceedings, must without delay disclose any circumstances of the kind referred to in subsection (1) to the parties unless they have already been informed of them by the arbitrator.\n\t(3)\tAn arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence, or if the arbitrator does not possess qualifications agreed to by the parties.\n\t(4)\tA party may challenge an arbitrator appointed by the party, or in whose appointment the party has participated, only for reasons of which the party becomes aware after the appointment has been made.\n\t(5)\tFor the purposes of subsection (1), there are justifiable doubts as to the impartiality or independence of a person approached in connection with a possible appointment as arbitrator only if there is a real danger of bias on the part of the person in conducting the arbitration.\n\t(6)\tFor the purposes of subsection (3), there are justifiable doubts as to the impartiality or independence of an arbitrator only if there is a real danger of bias on the part of the arbitrator in conducting the arbitration.\nNote—\nThis section (other than subsections (5) and (6)) is substantially the same as Art 12 of the Model Law. Subsections (5) and (6) provide that the test for whether there are justifiable doubts as to the impartiality or independence of a person or arbitrator is whether there is a real danger of bias.\n13—Challenge procedure\n\t(1)\tThe parties are free to agree on a procedure for challenging an arbitrator, subject to subsection (4).\n\t(2)\tFailing such agreement, a party who intends to challenge an arbitrator must, within 15 days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in section 12(3), send a written statement of the reasons for the challenge to the arbitral tribunal.\n\t(3)\tUnless the challenged arbitrator withdraws from office or the other party agrees to the challenge, the arbitral tribunal must decide on the challenge.\n\t(4)\tIf a challenge under any procedure agreed on by the parties or under the procedure of subsections (2) and (3) is not successful, the challenging party may request, within 30 days after having received notice of the decision rejecting the challenge, the Court to decide on the challenge.\n\t(5)\tA decision of the Court under subsection (4) that is within the limits of the authority of the Court is final.\n\t(6)\tWhile a request under subsection (4) is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.\nNote—\nSection 13 (other than subsection (5)) is substantially the same as Art 13 of the Model Law. Subsection (5) makes it clear that, although a decision of the Court is generally final, review of a decision of the Court that is not made within the limits of its powers and functions is not precluded.\n14—Failure or impossibility to act\n\t(1)\tIf an arbitrator becomes in law or in fact unable to perform the arbitrator's functions or for other reasons fails to act without undue delay, the arbitrator's mandate terminates if the arbitrator withdraws from office or if the parties agree on the termination.\n\t(2)\tOtherwise, if a controversy remains concerning any of these grounds, any party may request the Court to decide on the termination of the mandate.\n\t(3)\tA decision of the Court under subsection (2) that is within the limits of the authority of the Court is final.\n\t(4)\tIf, under this section or section 13(3), an arbitrator withdraws from office or a party agrees to the termination of the mandate of an arbitrator, this does not imply acceptance of the validity of any ground referred to in this section or section 12(3).\nNote—\nSection 14 (other than subsection (3)) is substantially the same as Art 14 of the Model Law. Subsection (3) makes it clear that, although a decision of the Court is generally final, review of a decision of the Court that is not made within the limits of its powers and functions is not precluded.\n15—Appointment of substitute arbitrator\nIf the mandate of an arbitrator terminates under section 13 or 14 or because of the arbitrator's withdrawal from office for any other reason or because of the revocation of the arbitrator's mandate by agreement of the parties or in any other case of termination of the arbitrator's mandate, a substitute arbitrator must be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.\nPart 4—Jurisdiction of arbitral tribunal\n16—Competence of arbitral tribunal to rule on its jurisdiction\n\t(1)\tThe arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.\n\t(2)\tFor that purpose, an arbitration clause which forms part of a contract is to be treated as an agreement independent of the other terms of the contract.\n\t(3)\tA decision by the arbitral tribunal that the contract is null and void does not of itself entail the invalidity of the arbitration clause.\nNote—\nThe Model Law provides that such a decision does not \"ipso jure\" entail the invalidity of the arbitration clause.\n\t(4)\tA plea that the arbitral tribunal does not have jurisdiction must be raised not later than the submission of the statement of defence.\n\t(5)\tA party is not precluded from raising such a plea by the fact that the party has appointed, or participated in the appointment of, an arbitrator.\n\t(6)\tA plea that the arbitral tribunal is exceeding the scope of its authority must be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.\n\t(7)\tThe arbitral tribunal may, in the case of a plea referred to in subsection (4) or (6), admit a later plea if it considers the delay justified.\n\t(8)\tThe arbitral tribunal may rule on a plea referred to in subsection (4) or (6) either as a preliminary question or in an award on the merits.\n\t(9)\tIf the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within 30 days after having received notice of that ruling, the Court to decide the matter.\n\t(10)\tA decision of the Court under subsection (9) that is within the limits of the authority of the Court is final.\n\t(11)\tWhile a request under subsection (9) is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.\nNote—\nSection 16 (other than subsection (10)) is substantially the same as Art 16 of the Model Law. Subsection (10) makes it clear that, although a decision of the Court is generally final, review of a decision of the Court that is not made within the limits of its powers and functions is not precluded.\nPart 4A—Interim measures\nDivision 1—Interim measures\n17—Power of arbitral tribunal to order interim measures\n\t(1)\tUnless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures.\n\t(2)\tAn interim measure is any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to—\n\t(a)\tmaintain or restore the status quo pending determination of the dispute; or\n\t(b)\ttake action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself; or\n\t(c)\tprovide a means of preserving assets out of which a subsequent award may be satisfied; or\n\t(d)\tpreserve evidence that may be relevant and material to the resolution of the dispute.\n\t(3)\tWithout limiting subsection (2), the arbitral tribunal may make orders with respect to any of the following:\n\t(a)\tsecurity for costs;\n\t(b)\tdiscovery of documents and interrogatories;\n\t(c)\tgiving of evidence by affidavit;\n\t(d)\tthe inspection of any property which is or forms part of the subject matter of the dispute;\n\t(e)\tthe taking of photographs of any property which is or forms part of the subject matter of the dispute;\n\t(f)\tsamples to be taken from, or any observation to be made of or experiment conducted on, any property which is or forms part of the subject matter of the dispute;\n\t(g)\tdividing, recording and strictly enforcing the time allocated for a hearing between the parties (a stop clock arbitration).\nNote—\nSubsections (1) and (2) are substantially the same as Art 17 of the Model Law. There is no equivalent subsection (3) in the Model Law.\n17A—Conditions for granting interim measures\n\t(1)\tThe party requesting an interim measure under section 17(2)(a), (b) or (c) must satisfy the arbitral tribunal that—\n\t(a)\tharm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and that harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and\n\t(b)\tthere is a reasonable possibility that the requesting party will succeed on the merits of the claim.\n\t(2)\tThe determination on the possibility referred to in subsection (1)(b) does not affect the discretion of the arbitral tribunal in making any subsequent determination.\n\t(3)\tWith regard to a request for an interim measure under section 17(2)(d), the requirements in subsections (1)(a) and (b) and subsection (2) apply only to the extent the arbitral tribunal considers appropriate.\nDivision 2—Preliminary orders\n17B\nNote—\nArt 17B of the Model Law, which provides for ex parte requests for interim measures together with applications for preliminary orders directing parties not to frustrate the interim measures, has been omitted.\n17C\nNote—\nArt 17C of the Model Law, which contains safeguards for the party against whom a preliminary order is directed under Art 17B, is omitted as a consequence of the omission of Art 17B.\nDivision 3—Provisions applicable to interim measures\n17D—Modification, suspension, termination\nThe arbitral tribunal may modify, suspend or terminate an interim measure it has granted, on application of any party or, in exceptional circumstances and on prior notice to the parties, on the arbitral tribunal's own initiative.\nNote—\nThis section is substantially the same as Art 17D of the Model Law but contains no reference to preliminary orders as a consequence of this Act not including an equivalent of Arts 17B and 17C of the Model Law.\n17E—Provision of security\n\t(1)\tThe arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure.\nNote—\nSubsection (1) is the same as Art 17E(1) of the Model Law. Art 17E(2) is omitted as a consequence of this Act not including equivalents to Arts 17B and 17C of the Model Law.\n17F—Disclosure\n\t(1)\tThe arbitral tribunal may require any party promptly to disclose any material change in the circumstances on the basis of which the measure was requested or granted.\nNote—\nSubsection (1) is the same as Art 17F(1) of the Model Law. Art 17F(2) is omitted as a consequence of this Act not including equivalents to Arts 17B and 17C of the Model Law.\n17G—Costs and damages\n\t(1)\tThe party requesting an interim measure is liable for any costs and damages caused by the measure to any party if the arbitral tribunal later determines that, in the circumstances, the measure should not have been granted.\n\t(2)\tThe arbitral tribunal may award such costs and damages at any point during the proceedings.\nNote—\nThis section is substantially the same as Art 17G of the Model Law but the reference to applications for preliminary orders is omitted as a consequence of this Act not including equivalents to Arts 17B and 17C of the Model Law.\nDivision 4—Recognition and enforcement of interim measures\n17H—Recognition and enforcement\n\t(1)\tAn interim measure issued by an arbitral tribunal under the law of this State is to be recognised as binding and, unless otherwise provided by the arbitral tribunal, enforced on application to the Court, subject to the provisions of section 17I.\n\t(2)\tAn interim measure issued by an arbitral tribunal under the law of another State or Territory is to be recognised as binding in this State and, unless otherwise provided by the arbitral tribunal, enforced on application to the Court, irrespective of the State or Territory in which it was issued, subject to the provisions of section 17I.\n\t(3)\tThe party who is seeking or has obtained recognition or enforcement of an interim measure must promptly inform the Court of any termination, suspension or modification of that interim measure.\n\t(4)\tThe Court may, if it considers it proper, order the requesting party to provide appropriate security if the arbitral tribunal has not already made a determination with respect to security or if such a decision is necessary to protect the rights of third parties.\nNote—\nThis section differs from Art 17H of the Model Law to the extent necessary to apply Art 17H as incorporated in this Act in the context of domestic commercial arbitrations.\n17I—Grounds for refusing recognition or enforcement\n\t(1)\tRecognition or enforcement of an interim measure may be refused only—\n\t(a)\tat the request of the party against whom it is invoked if the Court is satisfied that—\n\t(i)\tsuch a refusal is warranted on the grounds set out in section 36(1)(a)(i), (ii), (iii) or (iv); or\n\t(ii)\tthe arbitral tribunal's decision with respect to the provision of security in connection with the interim measure issued by the arbitral tribunal has not been complied with; or\n\t(iii)\tthe interim measure has been terminated or suspended by the arbitral tribunal or, if so empowered, by the court of the State or Territory in which the arbitration takes place or under the law of which that interim measure was granted; or\n\t(b)\tif the Court finds that—\n\t(i)\tthe interim measure is incompatible with the powers conferred on the Court unless the Court decides to reformulate the interim measure to the extent necessary to adapt it to its own powers and procedures for the purposes of enforcing that interim measure and without modifying its substance; or\n\t(ii)\tany of the grounds set out in section 36(1)(b)(i) or (ii) apply to the recognition and enforcement of the interim measure.\n\t(2)\tAny determination made by the Court on any ground in subsection (1) is effective only for the purposes of the application to recognise and enforce the interim measure.\n\t(3)\tThe Court must not, in making a determination with respect to the recognition or enforcement sought, undertake a review of the substance of the interim measure.\nNote—\nThis section is substantially the same as Art 17I of the Model Law but has been modified to the extent necessary to apply Art 17I as incorporated in this Act in the context of domestic commercial arbitrations.\nDivision 5—Court-ordered interim measures\n17J—Court-ordered interim measures\n\t(1)\tThe Court has the same power of issuing an interim measure in relation to arbitration proceedings as it has in relation to proceedings in courts.\n\t(2)\tThe Court is to exercise the power in accordance with its own procedures taking into account the specific features of a domestic commercial arbitration.\nNote—\nThis section is substantially the same as Art 17J of the Model Law but has been modified to the extent necessary to apply Art 17J as incorporated in this Act in the context of domestic commercial arbitrations.\nPart 5—Conduct of arbitral proceedings\n18—Equal treatment of parties\nThe parties must be treated with equality and each party must be given a reasonable opportunity of presenting the party's case.\nNote—\nThis section differs from the Model Law to the extent that it requires a party to be given a \"reasonable\", instead of \"full\", opportunity of presenting the party's case.\n19—Determination of rules of procedure\n\t(1)\tSubject to the provisions of this Act, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.\n\t(2)\tFailing such agreement, the arbitral tribunal may, subject to the provisions of this Act, conduct the arbitration in such manner as it considers appropriate.\n\t(3)\tThe power conferred on the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.\n\t(4)\tThe power conferred on the tribunal also includes the power to make orders or give directions for the examination of a party or witness on oath or affirmation.\n\t(5)\tFor the purposes of the exercise of the power referred to in subsection (4), the arbitral tribunal may administer any necessary oath or take any necessary affirmation.\n\t(6)\tAn order made or direction given by an arbitral tribunal in the course of arbitral proceedings is, by leave of the Court, enforceable in the same manner as if it were an order of the Court and, if leave is so given, judgment may be entered in terms of the order or direction.\nNote—\nThis section (other than subsections (4)—(6)) is substantially the same as Art 19 of the Model Law. Subsections (4)—(6) elaborate on the powers conferred on arbitral tribunals.\n20—Place of arbitration\n\t(1)\tThe parties are free to agree on the place of arbitration.\n\t(2)\tFailing such agreement, the place of arbitration is to be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.\n\t(3)\tDespite subsection (1), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place (whether or not in South Australia) it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.\n21—Commencement of arbitral proceedings\nUnless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.\n22—Language\n\t(1)\tThe parties are free to agree on the language or languages to be used in the arbitral proceedings.\n\t(2)\tFailing agreement as referred to in subsection (1), the arbitral tribunal is to determine the language or languages to be used in the proceedings.\n\t(3)\tThis agreement or determination, unless otherwise specified in the agreement or determination, is to apply to any written statement by a party, any hearing and any award, decision or other communication by the arbitral tribunal.\n\t(4)\tThe arbitral tribunal may order that any documentary evidence is to be accompanied by a translation into the language or languages agreed on by the parties or determined by the arbitral tribunal.\n23—Statements of claim and defence\n\t(1)\tSubject to any contrary agreement of the parties or a direction of the arbitral tribunal, within the period of time agreed by the parties or determined by the arbitral tribunal, the claimant must state the facts supporting his or her claim, the points at issue and the relief or remedy sought, and the respondent must state the respondent's defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of such statements.\n\t(2)\tThe parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.\n\t(3)\tUnless otherwise agreed by the parties, either party may amend or supplement the party's claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it.\n\t(4)\tSubsection (1) does not require a statement by a claimant or respondent to be in a particular form.\nNote—\nThis section (other than subsections (1) and (4)) is substantially the same as Art 23 of the Model Law. Subsection (1) has effect subject to any contrary agreement of the parties or direction of the arbitral tribunal. Subsection (4) makes it clear that it is not necessary to use a particular form of statement of claim or defence.\n24—Hearings and written proceedings\n\t(1)\tSubject to any contrary agreement by the parties, the arbitral tribunal is to decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings are to be conducted on the basis of documents and other materials.\n\t(2)\tHowever, unless the parties have agreed that no hearings are to be held, the arbitral tribunal must hold such hearings at an appropriate stage of the proceedings, if so requested by a party.\n\t(3)\tThe parties must be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of goods, other property or documents.\n\t(4)\tAll statements, documents or other information supplied to the arbitral tribunal by 1 party must be communicated to the other party.\n\t(5)\tAlso, any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision must be communicated to the parties.\n24A—Representation\n\t(1)\tThe parties may appear or act in person, or may be represented by another person of their choice, in any oral hearings under section 24.\n\t(2)\tA person who is not admitted to practise as a legal practitioner in South Australia does not commit an offence under or breach the provisions of the Legal Practitioners Act 1981 or any other Act merely by representing a party in arbitral proceedings in this State.\nNote—\nThere is no equivalent of this section in the Model Law.\n24B—General duties of parties\n\t(1)\tThe parties must do all things necessary for the proper and expeditious conduct of the arbitral proceedings.\n\t(2)\tWithout limitation, the parties must—\n\t(a)\tcomply without undue delay with any order or direction of the arbitral tribunal with respect to any procedural, evidentiary or other matter; and\n\t(b)\ttake without undue delay any necessary steps to obtain a decision (if required) of the Court with respect to any function conferred on the Court under section 6.\n\t(3)\tA party must not wilfully do or cause to be done any act to delay or prevent an award being made.\nNote—\nThere is no equivalent of this section in the Model Law.\n25—Default of party\n\t(1)\tUnless otherwise agreed by the parties, if, without showing sufficient cause—\n\t(a)\tthe claimant fails to communicate the claimant's statement of claim in accordance with section 23(1)—the arbitral tribunal may terminate the proceedings; or\n\t(b)\tthe respondent fails to communicate the respondent's statement of defence in accordance with section 23(1)—the arbitral tribunal may continue the proceedings without treating such failure in itself as an admission of the claimant's allegations; or\n\t(c)\tany party fails to appear at a hearing or to produce documentary evidence—the arbitral tribunal may continue the proceedings and make the award on the evidence before it.\n\t(2)\tUnless otherwise agreed by the parties, if a party fails to do any other thing necessary for the proper and expeditious conduct of the arbitration the arbitral tribunal—\n\t(a)\tif satisfied that there has been inordinate and inexcusable delay on the part of the claimant in pursuing the claim—may make an award dismissing the claim or may give directions (with or without conditions) for the speedy determination of the claim; or\n\t(b)\tif without sufficient cause a party fails to comply with any order or direction of the arbitral tribunal—may make an order requiring the party to comply with the terms of the earlier order or direction within the period specified by the arbitral tribunal (a peremptory order).\n\t(3)\tIf a party fails to comply with a peremptory order, the arbitral tribunal may do any of the following:\n\t(a)\tdirect that the party in default is not to be entitled to rely on any allegation or material which was the subject matter of the peremptory order;\n\t(b)\tdraw such adverse inferences from the failure to comply as the circumstances justify;\n\t(c)\tproceed to an award on the basis of any materials that have been properly provided to the arbitral tribunal;\n\t(d)\twithout limiting section 33B(4), in making an award give any direction or order that it thinks fit as to the payment of the costs of the arbitration incurred in consequence of the non‑compliance.\nNote—\nSubsection (1) is substantially the same as Art 25 of the Model Law. There are no equivalents to the other provisions of the section in the Model Law.\n26—Expert appointed by arbitral tribunal\n\t(1)\tUnless otherwise agreed by the parties, the arbitral tribunal—\n\t(a)\tmay appoint 1 or more experts to report to it on specific issues to be determined by the arbitral tribunal; and\n\t(b)\tmay require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for the expert's inspection.\n\t(2)\tUnless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert must, after delivery of the expert's written or oral report, participate in a hearing where the parties have the opportunity to put questions to the expert and present expert witnesses in order to testify on the points at issue.\n27—Court assistance in taking evidence\n\t(1)\tThe arbitral tribunal or a party with the approval of the arbitral tribunal may request from the Court assistance in taking evidence.\n\t(2)\tThe Court may execute the request within its competence and subject to and in accordance with rules of court.\nNote—\nThis section is substantially the same as Art 27 of the Model Law but the reference to rules of court has been amended for consistency with sections 27A and 27B and a request for assistance may only be made to the Court, not any competent court.\n27A—Parties may obtain subpoenas\n\t(1)\tThe Court may, on the application of any party, and subject to and in accordance with rules of court, issue a subpoena requiring a person—\n\t(a)\tto attend for examination before the arbitral tribunal; or\n\t(b)\tto produce to the arbitral tribunal the documents specified in the subpoena; or\n\t(c)\tto do both of those things.\n\t(2)\tA party may only make an application to the Court under subsection (1) with the permission of the arbitral tribunal.\n\t(3)\tA person must not be compelled under any subpoena issued in accordance with subsection (1) to answer any question or produce any document that the person could not be compelled to answer or produce in a proceeding before the Court.\nNote—\nThere is no equivalent to this section in the Model Law.\n27B—Refusal or failure to attend before arbitral tribunal or to produce document\n\t(1)\tFor the purposes of this section, a person is a person in default in relation to proceedings before an arbitral tribunal under an arbitration agreement if the person—\n\t(a)\trefuses or fails to attend before the arbitral tribunal for examination when required under a subpoena or by the arbitral tribunal to do so; or\n\t(b)\trefuses or fails to produce a document that the person is required under a subpoena or by the arbitral tribunal to produce; or\n\t(c)\twhen appearing as a witness before the arbitral tribunal—\n\t(i)\trefuses or fails to take an oath or to make an affirmation or affidavit when required by the arbitral tribunal to do so; or\n\t(ii)\trefuses or fails to answer a question that the witness is required by the arbitral tribunal to answer; or\n\t(d)\trefuses or fails to do any other thing which the arbitral tribunal may require.\n\t(2)\tUnless otherwise agreed by the parties, the Court may, on the application of a party or the arbitral tribunal, order a person in default to do any or all of the following:\n\t(a)\tattend the Court to be examined as a witness;\n\t(b)\tproduce the relevant document to the Court;\n\t(c)\tdo the relevant thing.\n\t(3)\tA party may only make an application to the Court under subsection (2) with the permission of the arbitral tribunal.\n\t(4)\tThe Court must not make an order under subsection (2) in relation to a person who is not a party to the arbitral proceedings unless—\n\t(a)\tbefore the order is made, the person is given an opportunity to make representations to the Court; and\n\t(b)\tthe Court is satisfied that it is reasonable in all the circumstances to make the order.\n\t(5)\tA person must not be compelled under an order made under subsection (2) to answer any question or produce any document which the person could not be compelled to answer or produce in a proceeding before the Court.\n\t(6)\tIf the Court makes an order under subsection (2), it may in addition make orders for the transmission to the arbitral tribunal of any of the following:\n\t(a)\ta record of any evidence given under the order;\n\t(b)\tany document produced under the order or a copy of any such document;\n\t(c)\tparticulars of any thing done under the order.\n\t(7)\tAny evidence, document or thing transmitted under subsection (6) is taken to have been given, produced or done (as the case requires) in the course of the arbitral proceedings.\nNote—\nThere is no equivalent of this section in the Model Law.\n27C—Consolidation of arbitral proceedings\n\t(1)\tUnless otherwise agreed by the parties, a party to arbitral proceedings may apply to the arbitral 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—\n\t(a)\ta common question of law or fact arises in all those proceedings; or\n\t(b)\tthe rights to relief claimed in all those proceedings are in respect of, or arise out of, the same transaction or series of transactions; or\n\t(c)\tfor some other reason specified in the application, it is desirable that an order be made under this section.\n\t(2)\tIn this section, 2 or more arbitral proceedings that are the subject of an application under subsection (1) are called the related proceedings.\n\t(3)\tThe following orders may be made under this section in relation to the related proceedings:\n\t(a)\tthat the proceedings be consolidated on terms specified in the order;\n\t(b)\tthat the proceedings be heard at the same time or in a sequence specified in the order;\n\t(c)\tthat any of the proceedings be stayed pending the determination of any of the other proceedings.\n\t(4)\tIf all the related proceedings are being conducted by the same tribunal, the tribunal may make any order under this section that it thinks fit in relation to those proceedings and, if an order is made, the proceedings must be dealt with in accordance with the order.\n\t(5)\tIf 2 or more arbitral tribunals are conducting the related proceedings—\n\t(a)\tthe tribunal that received the application must communicate the substance of the application to the other tribunals concerned; and\n\t(b)\tthe tribunals must, as soon as practicable, deliberate jointly on the application.\n\t(6)\tIf the tribunals agree, after deliberation on the application, that a particular order under this section should be made in relation to the related proceedings—\n\t(a)\tthe tribunals are to jointly make the order; and\n\t(b)\tthe related proceedings are to be dealt with in accordance with the order; and\n\t(c)\tif the order is that the related proceedings be consolidated—the arbitrator or arbitrators for the purposes of the consolidated proceedings are to be appointed, in accordance with sections 10 and 11, from the members of the tribunals.\n\t(7)\tIf the tribunals are unable to make an order under subsection (6), the related proceedings are to proceed as if no application has been made under subregulation (1).\n\t(8)\tBefore making an order under this section, the arbitral tribunal or tribunals concerned must take into account whether any party would or might suffer substantial hardship if the order were made.\n\t(9)\tThis 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.\nNote—\nThere is no equivalent to this section in the Model Law.\n27D—Power of arbitrator to act as mediator, conciliator or other non‑arbitral intermediary\n\t(1)\tAn arbitrator may act as a mediator in proceedings relating to a dispute between the parties to an arbitration agreement (mediation proceedings) if—\n\t(a)\tthe arbitration agreement provides for the arbitrator to act as mediator in mediation proceedings (whether before or after proceeding to arbitration, and whether or not continuing with the arbitration); or\n\t(b)\teach party has consented in writing to the arbitrator so acting.\n\t(2)\tAn arbitrator acting as a mediator—\n\t(a)\tmay communicate with the parties collectively or separately; and\n\t(b)\tmust treat information obtained by the arbitrator from a party with whom he or she communicates separately as confidential, unless that party otherwise agrees or unless the provisions of the arbitration agreement relating to mediation proceedings otherwise provide.\n\t(3)\tMediation proceedings in relation to a dispute terminate if—\n\t(a)\tthe parties to the dispute agree to terminate the proceedings; or\n\t(b)\tany party to the dispute withdraws consent to the arbitrator acting as mediator in the proceedings; or\n\t(c)\tthe arbitrator terminates the proceedings.\n\t(4)\tAn arbitrator who has acted as mediator in mediation proceedings that are terminated may not conduct subsequent arbitration proceedings in relation to the dispute without the written consent of all the parties to the arbitration given on or after the termination of the mediation proceedings.\n\t(5)\tIf the parties consent under subsection (4), no objection may be taken to the conduct of subsequent arbitration proceedings by the arbitrator solely on the ground that he or she has acted previously as a mediator in accordance with this section.\n\t(6)\tIf the parties do not consent under subsection (4), the arbitrator's mandate is taken to have been terminated under section 14 and a substitute arbitrator is to be appointed in accordance with section 15.\n\t(7)\tIf confidential information is obtained from a party during mediation proceedings as referred to in subsection (2)(b) and the mediation proceedings terminate, the arbitrator must, before conducting subsequent arbitration proceedings in relation to the dispute, disclose to all other parties to the arbitration proceedings so much of the information as the arbitrator considers material to the arbitration proceedings.\n\t(8)\tIn this section, a reference to a mediator includes a reference to a conciliator or other non‑arbitral intermediary between parties.\nNote—\nThere is no equivalent of this section in the Model Law.\n27E—Disclosure of confidential information\n\t(1)\tThe provisions of this section apply in arbitral proceedings unless otherwise agreed by the parties.\n\t(2)\tThe parties must not disclose confidential information in relation to the arbitral proceedings unless—\n\t(a)\tthe disclosure is allowed under section 27F; or\n\t(b)\tthe disclosure is allowed under an order made under section 27G and no order is in force under section 27H prohibiting that disclosure; or\n\t(c)\tthe disclosure is allowed under an order made under section 27I.\n\t(3)\tAn arbitral tribunal must not disclose confidential information in relation to the arbitral proceedings unless—\n\t(a)\tthe disclosure is allowed under section 27F; or\n\t(b)\tthe disclosure is allowed under an order made under section 27G and no order is in force under section 27H prohibiting that disclosure; or\n\t(c)\tthe disclosure is allowed under an order made under section 27I.\nNote—\nThere is no equivalent to this section in the Model Law.\n27F—Circumstances in which confidential information may be disclosed\n\t(1)\tThis section sets out the circumstances in which confidential information in relation to arbitral proceedings may be disclosed by—\n\t(a)\ta party; or\n\t(b)\tan arbitral tribunal.\n\t(2)\tThe information may be disclosed with the consent of all the parties to the arbitral proceedings.\n\t(3)\tThe information may be disclosed to a professional or other adviser of any of the parties.\n\t(4)\tThe information may be disclosed if it is necessary to ensure that a party has a reasonable opportunity to present the party's case and the disclosure is no more than reasonable for that purpose.\n\t(5)\tThe information may be disclosed if it is necessary for the establishment or protection of a party's legal rights in relation to a third party and the disclosure is no more than reasonable for that purpose.\n\t(6)\tThe information may be disclosed if it is necessary for the purpose of enforcing an arbitral award and the disclosure is no more than reasonable for that purpose.\n\t(7)\tThe information may be disclosed if it is necessary for the purposes of this Act and the disclosure is no more than reasonable for that purpose.\n\t(8)\tThe information may be disclosed if the disclosure is in accordance with an order made or a subpoena issued by a court.\n\t(9)\tThe information may be disclosed if the disclosure is authorised or required by a relevant law or required by a competent regulatory body, and the person making the disclosure gives written details of the disclosure (including an explanation of the reasons for the disclosure) to—\n\t(a)\tif the person is a party—the other parties and the arbitral tribunal; and\n\t(b)\tif the arbitral tribunal is making the disclosure—all the parties.\n\t(10)\tIn this section—\nrelevant law means—\n\t(a)\ta law of this State (other than this Act); and\n\t(b)\ta law of the Commonwealth; and\n\t(c)\ta law of another State or Territory.\nNote—\nThere is no equivalent to this section in the Model Law.\n27G—Arbitral tribunal may allow disclosure of confidential information in certain circumstances\n\t(1)\tAn arbitral tribunal may make an order allowing a party to arbitral proceedings to disclose confidential information in relation to the proceedings in circumstances other than those mentioned in section 27F.\n\t(2)\tAn order under subsection (1) may only be made at the request of 1 of the parties and after giving each of the parties the opportunity to be heard.\nNote—\nThere is no equivalent to this section in the Model Law.\n27H—Court may prohibit disclosure of confidential information in certain circumstances\n\t(1)\tThe Court may make an order prohibiting a party from disclosing confidential information in relation to the arbitral proceedings if the Court is satisfied, in the circumstances of the particular case, that—\n\t(a)\tthe public interest in preserving the confidentiality of arbitral proceedings is not outweighed by other considerations that render it desirable in the public interest for the confidential information to be disclosed; and\n\t(b)\tthe disclosure is more than is reasonable for that purpose.\n\t(2)\tAn order under subsection (1) may only be made on the application of a party to the arbitral proceedings and after giving each of the parties to the arbitral proceedings the opportunity to be heard.\n\t(3)\tA party may only apply for an order under subsection (1) if the arbitral tribunal has made an order under section 27G(1) allowing disclosure of the information.\n\t(4)\tThe Court may order that the confidential information not be disclosed pending the outcome of the application under subsection (2).\n\t(5)\tAn order of the Court under this section that is made within the limits of the authority of the Court is final.\nNote—\nThere is no equivalent to this section in the Model Law.\n27I—Court may allow disclosure of confidential information in certain circumstances\n\t(1)\tThe Court may make an order allowing a party to disclose confidential information in relation to the arbitral proceedings in circumstances other than those mentioned in section 27F if the Court is satisfied, in the circumstances of the particular case, that—\n\t(a)\tthe public interest in preserving the confidentiality of arbitral proceedings is outweighed by other considerations that render it desirable in the public interest for the confidential information to be disclosed; and\n\t(b)\tthe disclosure is no more than is reasonable for that purpose.\n\t(2)\tAn order under subsection (1) may only be made on the application of a person who is or was a party to the arbitral proceedings and after giving each person who is or was a party to the arbitral proceedings the opportunity to be heard.\n\t(3)\tA party to arbitral proceedings may only apply for an order under subsection (1) if—\n\t(a)\tthe mandate of the arbitral tribunal has been terminated under section 32; or\n\t(b)\ta request by the party to the arbitral tribunal to make an order under section 27G has been refused.\n\t(4)\tAn order of the Court under this section that is made within the limits of the authority of the Court is final.\nNote—\nThere is no equivalent to this section in the Model Law.\n27J—Determination of preliminary point of law by Court\n\t(1)\tUnless otherwise agreed by the parties, on an application to the Court made by any of the parties to an arbitration agreement the Court has jurisdiction to determine any question of law arising in the course of the arbitration.\n\t(2)\tAn application under this section may be made by a party only with the consent of—\n\t(a)\tan arbitrator who has entered on the reference; or\n\t(b)\tall the other parties,\nand with the leave of the Court.\nNote—\nThere is no equivalent to this section in the Model Law.\nPart 6—Making of award and termination of proceedings\n28—Rules applicable to substance of dispute\n\t(1)\tThe arbitral tribunal must decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute.\n\t(2)\tAny designation of the law or legal system of a given State or Territory must be construed, unless otherwise expressed, as directly referring to the substantive law of that State or Territory and not to its conflict of laws rules.\n\t(3)\tFailing any designation by the parties, the arbitral tribunal must apply the law determined by the conflict of laws rules which it considers applicable.\n\t(4)\tThe arbitral tribunal must decide the dispute, if the parties so agree, in accordance with such other considerations as are agreed to by the parties.\n\t(5)\tIn all cases, the arbitral tribunal must decide in accordance with the terms of the contract and must take into account the usages of the trade applicable to the transaction.\nNote—\nThis section (other than subsection (4)) is substantially the same as Art 28 of the Model Law.\n29—Decision-making by panel of arbitrators\n\t(1)\tIn arbitral proceedings with more than 1 arbitrator, any decision of the arbitral tribunal must be made, unless otherwise agreed by the parties, by a majority of all its members.\n\t(2)\tHowever, questions of procedure may be decided by a presiding arbitrator, if so authorised by the parties or all members of the arbitral tribunal.\n30—Settlement\n\t(1)\tIf, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal must terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.\n\t(2)\tAn award on agreed terms is to be made in accordance with section 31 and must state that it is an award.\n\t(3)\tSuch an award has the same status and effect as any other award on the merits of the case.\n31—Form and contents of award\n\t(1)\tThe award must be made in writing and must be signed by the arbitrator or arbitrators.\n\t(2)\tIn arbitral proceedings with more than 1 arbitrator, the signatures of the majority of all members of the arbitral tribunal suffice, provided that the reason for any omitted signature is stated.\n\t(3)\tThe award must state the reasons on which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under section 30.\n\t(4)\tThe award must state its date and the place of arbitration as determined in accordance with section 20.\n\t(5)\tThe award is taken to have been made at the place stated in the award in accordance with subsection (4).\n\t(6)\tAfter the award is made, a copy signed by the arbitrators in accordance with subsection (1) must be delivered to each party.\n32—Termination of proceedings\n\t(1)\tThe arbitral proceedings are terminated by the final award or by an order of the arbitral tribunal in accordance with subsection (2).\n\t(2)\tThe arbitral tribunal is to issue an order for the termination of the arbitral proceedings when—\n\t(a)\tthe claimant withdraws his or her claim, unless the respondent objects and the arbitral tribunal recognises a legitimate interest on the respondent's part in obtaining a final settlement of the dispute; or\n\t(b)\tthe parties agree on the termination of the proceedings; or\n\t(c)\tthe arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible; or\n\t(d)\tthe arbitral tribunal makes an award under section 25(2)(a) dismissing the claim.\n\t(3)\tThe mandate of the arbitral tribunal terminates with the termination of the arbitral proceedings, subject to sections 33 and 34(4).\n33—Correction and interpretation of award; additional award\n\t(1)\tWithin 30 days of receipt of the award, unless another period of time has been agreed on by the parties—\n\t(a)\ta party, with notice to the other party, may request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical errors or any errors of similar nature; and\n\t(b)\tif so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.\n\t(2)\tIf the arbitral tribunal considers a request under subsection (1) to be justified, it must make the correction or give the interpretation within 30 days of receipt of the request.\n\t(3)\tThe interpretation forms part of the award.\n\t(4)\tThe arbitral tribunal may correct any error of the type referred to in subsection (1)(a) on its own initiative within 30 days of the date of the award.\n\t(5)\tUnless otherwise agreed by the parties, a party, with notice to the other party, may request, within 30 days of receipt of the award, the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award.\n\t(6)\tIf the arbitral tribunal considers the request to be justified, it must make the additional award within 60 days.\n\t(7)\tThe arbitral tribunal may extend, if necessary, the period of time within which it may make a correction, interpretation or an additional award under subsection (2) or (5).\n\t(8)\tSection 31 applies to a correction or interpretation of the award or to an additional award.\n33A—Specific performance\nUnless otherwise agreed by the parties, the arbitrator has the power to make an award ordering specific performance of any contract if the Court would have power to order specific performance of that contract.\nNote—\nThere is no equivalent to this section in the Model Law.\n33B—Costs\n\t(1)\tUnless otherwise agreed by the parties, the costs of an arbitration (including the fees and expenses of the arbitrator or arbitrators) are to be in the discretion of the arbitral tribunal.\n\t(2)\tUnless otherwise agreed by the parties, the arbitral tribunal may direct that the costs of an arbitration, or of any part of the arbitral proceedings, are to be limited to a specified amount.\n\t(3)\tA direction under subsection (2) may be varied at any stage, but this must be done sufficiently in advance of the incurring of costs to which it relates, or the taking of any steps in the proceedings which may be affected by it, for the limit to be taken into account.\n\t(4)\tThe arbitral tribunal may, in making an award—\n\t(a)\tdirect to whom, by whom, and in what manner, the whole or any part of the costs that it awards are to be paid; and\n\t(b)\ttax or settle the amount of costs to be paid or any part of those costs; and\n\t(c)\taward costs to be taxed or settled as between party and party or as between legal practitioner and client.\n\t(5)\tAny 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, to be assessed in the Court having jurisdiction under section 34 to hear applications setting aside the award.\n\t(6)\tIf no provision is made by an award with respect to the costs of the arbitration, a party may, within 14 days after receiving the award, apply to the arbitral tribunal for directions as to the payment of those costs.\n\t(7)\tThe arbitral tribunal must, after hearing any party who wishes to be heard, amend the award by adding to it such directions as the arbitral tribunal thinks proper with respect to the payment of the costs of the arbitration.\nNote—\nThere is no equivalent to this section in the Model Law.\n33C—Application of Legal Profession Acts\nNote—\nAn Act of another jurisdiction regulating the assessment of legal costs may apply to section 33B(5) in that other jurisdiction. However, in South Australia, the Legal Practitioners Act 1981 does not regulate the assessment of such costs.\n33D—Costs of abortive arbitration\n\t(1)\tUnless otherwise agreed in writing by the parties, if an arbitration is commenced but for any reason fails, the Court may, on the application of a party or the arbitral tribunal made within 6 months after the failure of the arbitration, make such orders in relation to the costs of the arbitration as it thinks just.\n\t(2)\tFor the purposes of this section, an arbitration is taken to have failed if—\n\t(a)\ta final award is not made by the arbitral tribunal before the arbitration terminates; or\n\t(b)\tan award made is wholly set aside by the Court.\n\t(3)\tIf the failed arbitration is a related proceeding (within the meaning of section 27C), the Court may stay proceedings on the application under subsection (1) pending the determination of the other arbitration proceedings to which the failed arbitration is related.\nNote—\nThere is no equivalent to this section in the Model Law.\n33E—Interest up to making of award\n\t(1)\tUnless otherwise agreed by the parties, if an arbitral tribunal makes an award for the payment of money (whether on a claim for a liquidated or an unliquidated amount), the arbitral tribunal may include in the sum for which the award is made interest, at such reasonable rate as the arbitral tribunal determines—\n\t(a)\ton the whole or any part of the money; and\n\t(b)\tfor 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.\n\t(2)\tSubsection (1) does not—\n\t(a)\tauthorise the awarding of interest on interest awarded under this section; or\n\t(b)\tapply in relation to any amount on which interest is payable as of right whether because of an agreement or otherwise; or\n\t(c)\taffect the damages recoverable for the dishonour of a bill of exchange.\nNote—\nThere is no equivalent to this section in the Model Law.\n33F—Interest on debt under award\n\t(1)\tThis section applies if—\n\t(a)\tan arbitral tribunal makes an award for the payment of an amount of money; and\n\t(b)\tunder the award, the amount is to be paid by a particular day (the due date),\nunless otherwise agreed by the parties.\n\t(2)\tThe arbitral tribunal may direct that interest, including compound interest, is payable if the amount is not paid on or before the due date.\n\t(3)\tThe arbitral tribunal may set a reasonable rate of interest.\n\t(4)\tThe interest is payable—\n\t(a)\tfrom the day immediately following the due date; and\n\t(b)\ton so much of the money as remains unpaid.\n\t(5)\tThe direction is taken to form part of the award.\nNote—\nThere is no equivalent to this section in the Model Law.\nPart 7—Recourse against award\n34—Application for setting aside as exclusive recourse against arbitral award\n\t(1)\tRecourse to the Court against an arbitral award may be made only by an application for setting aside in accordance with subsections (2) and (3) or by an appeal under section 34A.\nNote—\nThe Model Law does not provide for appeals as under section 34A.\n\t(2)\tAn arbitral award may be set aside by the Court only if—\n\t(a)\tthe party making the application furnishes proof that—\n\t(i)\ta party to the arbitration agreement referred to in section 7 was under some incapacity, or the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication in it, under the law of this State; or\n\t(ii)\tthe party making the application was not given proper notice of the appointment of an arbitral tribunal or of the arbitral proceedings or was otherwise unable to present the party's case; or\n\t(iii)\tthe award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or\n\t(iv)\tthe composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Act from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Act; or\n\t(b)\tthe Court finds that—\n\t(i)\tthe subject matter of the dispute is not capable of settlement by arbitration under the law of this State; or\n\t(ii)\tthe award is in conflict with the public policy of this State.\n\t(3)\tAn application for setting aside may not be made after 3 months have elapsed from the date on which the party making that application had received the award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal.\n\t(4)\tThe Court, when asked to set aside an award, may, if appropriate and so requested by a party, suspend the setting aside of proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal's opinion will eliminate the grounds for setting aside.\n34A—Appeals against awards\n\t(1)\tAn appeal lies to the Court on a question of law arising out of an award if—\n\t(a)\tthe parties agree, before the end of the appeal period referred to in subsection (6), that an appeal may be made under this section; and\n\t(b)\tthe Court grants leave.\n\t(2)\tAn appeal under this section may be brought by any of the parties to an arbitration agreement.\n\t(3)\tThe Court must not grant leave unless it is satisfied—\n\t(a)\tthat the determination of the question will substantially affect the rights of 1 or more of the parties; and\n\t(b)\tthat the question is one which the arbitral tribunal was asked to determine; and\n\t(c)\tthat, on the basis of the findings of fact in the award—\n\t(i)\tthe decision of the tribunal on the question is obviously wrong; or\n\t(ii)\tthe question is one of general public importance and the decision of the tribunal is at least open to serious doubt; and\n\t(d)\tthat, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the Court to determine the question.\n\t(4)\tAn application for leave to appeal must identify the question of law to be determined and state the grounds on which it is alleged that leave to appeal should be granted.\n\t(5)\tThe Court is to determine an application for leave to appeal without a hearing unless it appears to the Court that a hearing is required.\n\t(6)\tAn appeal may not be made under this section after 3 months have elapsed from the date on which the party making the appeal received the award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal (in this section referred to as the appeal period).\n\t(7)\tOn the determination of an appeal under this section the Court may by order—\n\t(a)\tconfirm the award; or\n\t(b)\tvary the award; or\n\t(c)\tremit the award, together with the Court's opinion on the question of law which was the subject of the appeal, to the arbitrator for reconsideration or, if a new arbitrator has been appointed, to that arbitrator for consideration; or\n\t(d)\tset aside the award in whole or in part.\n\t(8)\tThe Court must not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the arbitral tribunal for reconsideration.\n\t(9)\tIf the award is remitted under subsection (7)(c) the arbitrator must, unless the order otherwise directs, make the award within 3 months after the date of the order.\n\t(10)\tThe Court may make any leave which it grants under subsection (3)(c) subject to the applicant complying with any conditions it considers appropriate.\n\t(11)\tIf the award of an arbitrator is varied on an appeal under this section, the award as varied has effect (except for the purposes of this section) as if it were the award of the arbitrator.\nNote—\nThere is no equivalent to this section in the Model Law.\nPart 8—Recognition and enforcement of awards\n35—Recognition and enforcement\n\t(1)\tAn arbitral award, irrespective of the State or Territory in which it was made, is to be recognised in this State as binding and, on application in writing to the Court, is to be enforced subject to the provisions of this section and section 36.\n\t(2)\tThe party relying on an award or applying for its enforcement must supply the original award or a copy of the original award.\n\t(3)\tIf the award is not made in English, the Court may request the party to supply a translation of it into English.\nNote—\nSo much of Art 35(2) of the Model Law as provides for the translation of an award that is not in the official language of the enforcing State has been modified.\n36—Grounds for refusing recognition or enforcement\n\t(1)\tRecognition or enforcement of an arbitral award, irrespective of the State or Territory in which it was made, may be refused only—\n\t(a)\tat the request of the party against whom it is invoked, if that party furnishes to the Court proof that—\n\t(i)\ta party to the arbitration agreement was under some incapacity, or the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication in it, under the law of the State or Territory where the award was made; or\n\t(ii)\tthe party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present the party's case; or\n\t(iii)\tthe award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or\n\t(iv)\tthe composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the State or Territory where the arbitration took place; or\n\t(v)\tthe award has not yet become binding on the parties or has been set aside or suspended by a court of the State or Territory in which, or under the law of which, that award was made; or\n\t(b)\tif the Court finds that—\n\t(i)\tthe subject matter of the dispute is not capable of settlement by arbitration under the law of this State; or\n\t(ii)\tthe recognition or enforcement of the award would be contrary to the public policy of this State.\n\t(2)\tIf an application for setting aside or suspension of an award has been made to a court referred to in subsection (1)(a)(v), the Court may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the party to provide appropriate security.\nPart 9—Miscellaneous\n37—Death of party\n\t(1)\tUnless otherwise agreed by the parties, if a party to an arbitration agreement dies the agreement is not discharged (either as respects the deceased or any other party) and the authority of an arbitral tribunal is not revoked by the death but that agreement is enforceable by or against the personal representative of the deceased.\n\t(2)\tNothing in subsection (1) affects the operation of any enactment or rule of law by virtue of which a right of action is extinguished by the death of a person.\nNote—\nThere is no equivalent to this section in the Model Law.\n38—Interpleader\nIf relief by way of interpleader is granted in any court and it appears to that court that the claims in question are matters to which an arbitration agreement (to which the claimants are parties) applies, the Court must, unless it is satisfied that there is sufficient reason why the matters should not be referred to arbitration in accordance with the agreement, make an order directing the issue between the claimants to be determined in accordance with the agreement.\nNote—\nThere is no equivalent to this section in the Model Law.\n39—Immunity\n\t(1)\tAn arbitrator is not liable for anything done or omitted to be done in good faith in his or her capacity as arbitrator.\n\t(2)\tAn entity that appoints, or fails to appoint, a person as arbitrator is not liable in relation to the appointment, failure or refusal if done in good faith.\n\t(3)\tIn this section, a reference to an arbitrator includes an arbitrator acting as a mediator, conciliator or other non‑arbitral intermediary under section 27D.\nNote—\nThere is no equivalent to this section in the Model Law.\n40—Act to bind Crown\nThis Act binds the Crown in right of South Australia and, in so far as the legislative power of the Parliament of South Australia permits, the Crown in all its other capacities.\nNote—\nThere is no equivalent to this section in the Model Law.\n41—Court rules\n\t(1)\tRules of court may be made for carrying the purposes of this Act into effect and, in particular, for or with respect to the following:\n\t(a)\tapplications to a court under this Act and the costs of such applications;\n\t(b)\tthe payment or bringing of money into and out of a court in satisfaction of claims to which arbitration agreements apply and the investment of that money;\n\t(c)\tthe examination of witnesses before a court or before any other person and the issue of commissions or requests for the examination of witnesses outside South Australia, for the purposes of an arbitration;\n\t(d)\toffers of compromise in relation to claims to which arbitration agreements apply;\n\t(e)\tany other matter or thing for or with respect to which rules are by this Act authorised or required to be made by a court.\n\t(2)\tSubsection (1) does not limit the rule‑making powers conferred on a court by any other Act.\nNote—\nThere is no equivalent to this section in the Model Law.\n42—Regulations\nThe Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.\nNote—\nThere is no equivalent to this section in the Model Law.\nSchedule 1—Related amendments and transitional provisions\nPart 1—Preliminary\n1—Amendment provisions\nIn this Schedule, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.\nPart 2—Amendment of Commercial Arbitration and Industrial Referral Agreements Act 1986\n2—Amendment of long title\nLong title—delete \"arbitration\" and substitute:\nresolution\n3—Amendment of section 1—Short title\nSection 1—delete \"Commercial Arbitration and\"\n4—Repeal of sections 3 to 56\nSections 3 to 56 (inclusive)—delete the sections\n5—Redesignation of section 57\nSection 57—redesignate the section as section 4\n6—Amendment, redesignation and relocation of Schedule 1 clauses 1 and 2\n\t(1)\tSchedule 1—delete \"Schedule\" wherever occurring and substitute in each case:\nAct\n\t(2)\tSchedule 1—delete \"clause\" wherever occurring and substitute in each case:\nsection\n\t(3)\tSchedule 1—delete \"subclause\" wherever occurring and substitute in each case:\nsubsection\n\t(4)\tSchedule 1, clause 1(2)—delete subclause (2)\n\t(5)\tSchedule 1, clauses 1 and 2—redesignate the clauses (as amended by this clause) as sections 2 and 3 respectively and relocate them so that they follow section 1\n7—Repeal of Part and Schedule headings\nAct—delete each Part heading and Schedule heading\nPart 3—Savings, transitional and other provisions\n8—Savings and transitional provisions\n\t(1)\tSubject to subclause (2)—\n\t(a)\tthis Act applies to an arbitration agreement (whether made before or after the commencement of this Act) and to an arbitration under such an agreement; and\n\t(b)\ta reference in an arbitration agreement to the Commercial Arbitration and Industrial Referral Agreements Act 1986, or a provision of that Act, is to be construed as a reference to this Act or to the corresponding provision (if any) of this Act.\n\t(2)\tIf an arbitration was commenced before the commencement of this Act, the law governing the arbitration and the arbitration agreement is to be that which would have been applicable if this Act had not been enacted.\n\t(3)\tFor the purposes of this clause, an arbitration is taken to have been commenced if—\n\t(a)\ta dispute to which the relevant arbitration agreement applies has arisen; and\n\t(b)\tthe arbitral tribunal has been properly constituted.\n9—Other provisions\n\t(1)\tThe regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act.\n\t(2)\tAny such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.\n\t(3)\tTo the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as—\n\t(a)\tto affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication; or\n\t(b)\tto impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.\nLegislative history\nNotes\n\t•\tFor further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au.\nPrincipal Act\nYear\nNo\nTitle\nAssent\nCommencement\n2011\n32\nCommercial Arbitration Act 2011\n22.9.2011\n1.1.2012 (Gazette 15.12.2011 p4986)\n","sortOrder":0}],"analysis":{"summary":{"name":"Commercial Arbitration Act 2011","slug":"commercial-arbitration-act-2011","title_id":"commercial-arbitration-act-2011","version_id":31781,"analysis_type":"summary","content_quality":"ok","complexity_score":4,"scope_assessment":{"changed":false,"description":"This is the complete current version of the Commercial Arbitration Act 2011 (SA). It is a whole Act governing domestic commercial arbitrations in South Australia."},"complexity_factors":["Model Law-based structure requiring reference to UNCITRAL drafting history and international authorities","Interface between arbitration law and substantive law (proportionate liability, choice of law) confirmed as complex by 2024 HCA decisions","Section 34A appeal right (not in the Model Law) creates an additional litigation pathway","Competence-competence principles interact with court supervision in complex ways","Interim measures framework (Part 4A) introduced additional complexity"],"plain_english_summary":"The Commercial Arbitration Act 2011 (SA) is South Australia's legislation governing domestic commercial arbitrations. Its paramount object under section 1C is to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense. It applies to domestic commercial arbitrations where all parties have their places of business in Australia and the place of arbitration is agreed to be in South Australia.\n\nThe Act closely mirrors the UNCITRAL Model Law on International Commercial Arbitration, with some adaptations for the domestic context (including a default of one arbitrator rather than three, and a right of appeal on questions of law under section 34A that the Model Law does not provide). It provides for: arbitration agreement enforceability (s 8); arbitral tribunal composition and challenges; tribunal jurisdiction (s 16, competence-competence); interim measures; the conduct of proceedings; awards; and court supervision through the setting-aside mechanism in section 34.\n\nTwo 2024 High Court decisions have clarified key aspects of the Act. Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24 held that proportionate liability legislation (including South Australia's Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001) applies in domestic commercial arbitrations under the Act, answering 'Yes' to whether that legislation forms part of the rules of law applicable to the substance of the dispute. CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28 addressed the scope of set-aside applications under section 34, clarifying when a subsequent arbitral award dealing with matters decided in a first award can be set aside for excess of jurisdiction."},"flash_summary":{"complexity_score":7,"scope_assessment":{"changed":true,"description":"The Act adapts and narrows the UNCITRAL Model Law framework for domestic commercial arbitration in South Australia while adding several domestic‑specific provisions. Key scope changes include: applying the regime to domestic arbitrations and limiting many provisions to arbitrations whose place is in South Australia (s1(1)–(3), s1(2)); a default to a single arbitrator where parties do not agree (s10(2)); additional court powers and domestic procedural tools not in the Model Law (for example, subpoenas and court assistance s27A–27B, consolidation s27C, confidentiality ordering and court review s27E–27I, costs and interest rules s33B, s33E–33F; and a statutory appeal route on questions of law if parties agree and the Court grants leave s34A). The Act therefore changes the Model Law's scope and supplements it with domestic mechanisms and supervisory arrangements."},"complexity_factors":["Length and breadth: multiple Parts covering formation, procedure, interim relief, confidentiality, enforcement and appeals across many sections","Interplay with other laws: distinction between domestic framework (this Act) and international regime (International Arbitration Act 1974) (s1 notes)","Discretion points: frequent judicial and tribunal discretion (e.g. court appointments s11(2), recognition/enforcement s17H–17I, leave to appeal s34A)","Procedural time limits: many short, binding deadlines for challenges, corrections and appeals (s13(2), s33(1), s34(3), s34A(6))","Specialised remedies and devices: interim measures (s17–17A), security (s17E), consolidation (s27C), subpoenas and court assistance (s27A–27B)","Confidentiality regime: bespoke statutory rules and multi‑stage court/trial procedures for disclosure (s27E–27I)","Divergences from Model Law: added domestic provisions (e.g. default single arbitrator s10(2), appeals s34A, costs provisions s33B), raising interpretive complexity","Cross‑jurisdictional recognition and enforcement rules: awards/interim measures made in other States/Territories and their enforcement in SA (s17H(2), s35–36)","Multiple decision‑makers: overlapping roles for parties, tribunals and courts with detailed allocation of functions (s6 lists functions)","Procedural permutations: party agreements, institutional rules, and fallback court procedures create many possible process paths (s2(2)–(3), s19(2))"],"plain_english_summary":"What this law does, in plain English\n\n- Creates a detailed legal framework for domestic commercial arbitration in South Australia. It sets out what arbitration is, when the Act applies (domestic arbitrations whose place of arbitration is in South Australia, see s1(1)–(3)), and the guiding aim: to facilitate fair and final resolution of commercial disputes without unnecessary delay or expense (s1C).\n\nMechanically, the Act allocates decision‑making and duties as follows\n\n- Parties: wide freedom to agree on most elements of arbitration — procedure (s19(1)), number and appointment of arbitrators (s10(1), s11(1)), place (s20(1)), language (s22(1)), governing law for the dispute (s28(1)) and whether reasons are required in an award (s31(3)). The arbitration agreement must be in writing (s7(3)–(6)).\n\n- Arbitral tribunal (arbitrators): conducts the proceedings, decides on admissibility and weight of evidence (s19(3)), may rule on its own jurisdiction (s16(1)), may order interim measures (s17) subject to conditions (s17A), may require security for interim measures (s17E), may appoint experts (s26), and has discretion to allocate costs (s33B).\n\n- Courts: limited supervisory and enforcement roles expressly listed (s6 and s5). The Supreme Court (or lower courts if parties agree, s6(2)) performs functions such as appointing arbitrators in default (s11(2)), deciding challenges (s13(4)), dealing with jurisdiction questions referred from a tribunal (s16(9)), recognising and enforcing interim measures and awards (s17H, s35), granting subpoenas and compelling attendance or documents (s27A, s27B), and hearing applications to set aside awards (s34) or appeals on questions of law if parties have agreed (s34A).\n\nOfficial rationale and how the Act implements it\n\n- The Act states its paramount object is efficient, impartial, final resolution of commercial disputes (s1C). It implements that by:\n  - Preserving party autonomy across many dimensions (s19, s20, s22, s28).\n  - Restricting court intervention to prescribed circumstances (s5, s6).\n  - Providing tribunal powers to order interim measures and manage procedure (s17, s19, s24).\n  - Making awards enforceable through the Court (s35) while restricting court recourse to set aside or appeal on limited grounds and within time limits (s34, s34A).\n\nTrade‑offs, costs, incentives and likely behaviour changes (source‑based)\n\n- Who pays and where costs fall\n  - Parties pay arbitration costs including arbitrator fees; the tribunal has discretion to award costs and to limit them (s33B(1)–(4)). If a party seeks an interim measure and it is later found to have been wrongly granted, that party can be liable for costs and damages (s17G(1)). The Court may require security before enforcing an interim measure (s17H(4)).\n\n- Incentives created by the Act\n  - Parties have a clear incentive to specify arbitration terms in writing (s7(3)–(6)) to preserve autonomy. Because the tribunal may make binding procedural orders that are court‑enforceable (s19(6)), parties are incentivised to comply with tribunal directions promptly (s24B(1)–(2)).\n  - Time limits for procedural steps encourage prompt challenges and applications: e.g. 15 days to challenge an arbitrator after becoming aware of grounds (s13(2)); 30 days to ask the Court to review a tribunal ruling on jurisdiction (s16(9)); 3 months to apply to set aside or to appeal (s34(3), s34A(6)).\n\n- Compliance burden and processes that create administrative cost\n  - Parties must meet drafting and evidentiary rules (s23, s24) and comply with tribunal directions without undue delay (s24B). Court applications (appointment of arbitrator, challenges, subpoenas, enforcement) require formal steps and incur Court fees and legal costs (s11(2), s13(4), s27A, s17H, s35).\n  - Security and disclosure requirements around interim measures (s17E, s17F, s17G, s17H) can impose immediate financial and evidentiary burdens on a requesting party.\n\n- Bureaucratic and judicial discretion\n  - The Court has recurring discretionary roles: appoint arbitrators when parties fail to do so (s11(2)), decide challenges (s13(4)), recognise and enforce interim measures and awards subject to statutory grounds (s17H, s17I, s35, s36), and grant leave for appeals on questions of law (s34A(1)–(3)). These points of discretion introduce implementation risk depending on court practice and resourcing.\n\n- Effects on private choice, competition and business operations\n  - The Act preserves contractual freedom for businesses to tailor dispute resolution (s19, s20, s22, s28). Confidentiality provisions (strict definition at s2 and disclosure regime s27E–27I) allow businesses to keep sensitive materials out of public court files, which may protect commercial interests and reduce reputational or competitive costs.\n  - The default to a single arbitrator if parties do not agree (s10(2)) lowers default cost of arbitration compared with a three‑member panel; parties wanting multiple arbitrators must specify that (s10(1)).\n  - Consolidation powers (s27C) can reduce duplication and transaction costs where related proceedings exist, but consolidation requires tribunal agreement or an application and might not be available if separate tribunals decline to act jointly.\n\n- Remedies, finality and judicial review\n  - Finality is supported: setting aside is limited to statutory grounds (s34(2)) and time‑barred (s34(3)). An appeal on a question of law is available only if parties agreed beforehand and the Court grants leave on narrow criteria (s34A(1)–(3)). These rules shift the default toward final arbitral resolution, while preserving limited judicial oversight.\n\nPractical implementation risks and operational points\n\n- Jurisdictional gate: many provisions apply only where the place of arbitration is in South Australia (s1(2)); that choice affects whether this Act or other State/Commonwealth law applies.\n- Interaction with Commonwealth law: international arbitrations remain governed by the International Arbitration Act 1974 (s1(1) note), so cross‑border cases require careful drafting and forum selection.\n- Confidentiality vs regulatory or legal disclosure: the Act allows disclosure in several statutory circumstances (s27F(3)–(9)) and gives the Court authority to prohibit or allow disclosure in contested situations (s27H–27I), producing procedural steps and evidentiary rules for disputes about confidentiality.\n- Timing and procedural discipline: short statutory time limits for challenges and corrections (s13(2), s33(1), s34(3), s34A(6)) create pressure to act quickly and raise compliance costs for inattentive parties.\n\nNet effect on actors (who pays, who decides, how behaviour changes)\n\n- Who pays: the disputing parties bear the financial cost of arbitration (arbitrator fees, experts, tribunal‑directed costs, court application costs), and may be ordered to pay each other's costs, subject to tribunal discretion (s33B).\n- Who decides: parties largely choose procedure and arbitrators; the arbitral tribunal runs the process and decides facts and (subject to parties' choice of law) law; courts intervene for specific supervisory and enforcement functions (s6 lists key functions).\n- Behaviour change likely: more use of agreed arbitration terms in commercial contracts; quicker procedural steps to preserve rights (deadlines for challenges, corrections, appeals); possible increased use of tribunal‑ordered interim relief and security; reliance on confidentiality protections to keep disputes and evidence private.\n\nKey sections to consult directly (for detail) — selection\n- Scope and object: s1, s1C\n- Arbitration agreement form: s7\n- Appointment and challenges: s10–15\n- Tribunal jurisdiction and preliminary court review: s16\n- Interim measures and enforcement: s17–17J\n- Conduct, procedure and evidence: s19–27B\n- Confidentiality and disclosure: s27E–27I\n- Making and correcting awards; costs and interest: s31–33F\n- Setting aside and appeals: s34, s34A\n- Recognition and enforcement of awards: s35–36\n\nSource note: many provisions mirror the UNCITRAL Model Law but are adapted for domestic application in South Australia; the Act itself notes where it departs from the Model Law and contains extra provisions for domestic arbitration (see the Act's preliminary notes and specific sections)."},"kimi_summary":{"content_quality":"ok","complexity_score":6,"scope_assessment":{"changed":false,"description":"The legislation remains focused on its original purpose of governing domestic commercial arbitration. While it incorporates modern features (confidentiality protections, mediation-arbitration hybrid powers, consolidation provisions), these expand the mechanisms within the arbitration framework rather than extending the Act into unrelated areas. The amendments to the 1986 Act in Schedule 1 are housekeeping measures to transition to the new regime."},"complexity_factors":["Based on UNCITRAL Model Law with extensive cross-referencing to international standards (section 2A requires interpretation to promote uniformity with international commercial arbitration law)","47 defined terms in section 2 including nested definitions ('confidential information' has 7 sub-categories)","Multiple conditional triggers throughout: party agreement overrides many provisions (e.g., sections 10, 11, 17, 19, 22, 28), with default rules only applying 'failing such agreement'","Complex confidentiality regime spanning sections 27E-27I with multiple exceptions, court override powers, and specific procedural prerequisites (e.g., section 27I(3) requires termination of tribunal mandate or refusal of tribunal order before court can act)","Nested exceptions in interim measures: section 17A sets conditions, but section 17A(3) modifies those conditions for evidence preservation","Dual pathways for court involvement: some functions default to Supreme Court (section 6(1)) but can shift to lower courts by agreement (section 6(2))","Transitional provisions in Schedule 1 creating interaction between old and new legislative regimes","Multiple time limits (15 days, 30 days, 3 months) that vary by context and can be overridden by party agreement"],"plain_english_summary":"This legislation establishes the rules for **commercial arbitration** in South Australia—that is, resolving business disputes outside of court through private decision-makers called **arbitrators**.\n\n**What it does:**\n- **Sets up a framework** for businesses to agree to have their disputes decided by one or more arbitrators rather than judges\n- **Gives arbitrators powers** similar to courts: they can order interim measures (temporary protections like freezing assets), require evidence, and make binding decisions called **awards**\n- **Limits court intervention**—courts can only step in where the Act specifically allows, such as appointing arbitrators when parties disagree, enforcing awards, or setting aside awards in limited circumstances\n- **Protects confidentiality** of arbitration proceedings through detailed rules about when information can be disclosed\n- **Allows appeals on questions of law** (unlike international arbitration), but only with court permission and party agreement\n\n**Who it affects:**\n- Businesses operating in South Australia who include arbitration clauses in their contracts\n- Parties to domestic commercial disputes (where both businesses are based in Australia)\n- Arbitrators conducting proceedings in South Australia\n\n**Why it matters:**\nArbitration is usually faster, cheaper, and more private than going to court. This Act ensures South Australian businesses have a modern, internationally-aligned system for resolving commercial disputes, while keeping some local features like the ability to appeal legal errors."},"issue_detection":{"absurdities":[],"contradictions":[]}},"importantCases":[],"_links":{"self":"/api/acts/commercial-arbitration-act-2011","history":"/api/acts/commercial-arbitration-act-2011/history","analysis":"/api/acts/commercial-arbitration-act-2011/analysis","conflicts":"/api/acts/commercial-arbitration-act-2011/conflicts","importantCases":"/api/acts/commercial-arbitration-act-2011/important-cases","documents":"/api/acts/commercial-arbitration-act-2011/documents"}}