{"id":"a-2017-7","name":"Commercial Arbitration Act 2017","slug":"commercial-arbitration-act-2017","collection":"act","jurisdiction":"act","status":"in_force","isInForce":true,"actNumber":"7 of 2017","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":23232,"registerId":"act-a-2017-7-current","compilationNumber":null,"startDate":"2026-04-01","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1A","sectionType":"section","heading":"Name of Act","content":"1A Name of Act\nThis Act is the Commercial Arbitration Act 2017.\n","sortOrder":0},{"sectionNumber":"1C","sectionType":"section","heading":"Paramount object of Act","content":"1C Paramount object of Act\n(1) The paramount object of this Act is to facilitate the fair and final\nresolution of commercial disputes by impartial arbitral tribunals\nwithout unnecessary delay or expense.\n(2) This Act aims to achieve its paramount object by—\n(a) enabling parties to agree about how their commercial disputes\nare to be resolved (subject to subsection (3) and such safeguards\nas are necessary in the public interest); and\n\nPreliminary Part 1A\nSection 1D\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 3\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(b) providing arbitration procedures that enable commercial\ndisputes to be resolved in a cost effective manner, informally\nand quickly.\n(3) This Act must be interpreted, and the functions of an arbitral tribunal\nmust be exercised, so that (as far as practicable) the paramount object\nof this Act is achieved.\n(4) Subsection (3) does not affect the application of the Legislation Act,\nsection 139 for the purposes of interpreting this Act.\n","sortOrder":1},{"sectionNumber":"1D","sectionType":"section","heading":"Act to bind Crown","content":"1D Act to bind Crown\nNote The Model Law includes a provision binding the Crown. The provision\nis unnecessary in the ACT (see Legislation Act, s 121).\n","sortOrder":2},{"sectionNumber":"1E","sectionType":"section","heading":"Dictionary","content":"1E Dictionary\nThe dictionary at the end of this Act is part of this Act.\nNote 1 The dictionary at the end of this Act defines certain terms used in this\nAct, and includes references (signpost definitions) to other terms defined\nelsewhere in this Act.\nFor example, the signpost definition ‘arbitration agreement—see section\n7.’ means that the term ‘arbitration agreement’ is defined in that section\nand the definition applies to this Act.\nNote 2 A definition in the dictionary applies to the entire Act unless the\ndefinition, or another provision of the Act, provides otherwise or the\ncontrary intention otherwise appears (see Legislation Act, s 155 and\ns 156 (1)).\n\n","sortOrder":3},{"sectionNumber":"Part 1A","sectionType":"part","heading":"Preliminary","content":"Part 1A Preliminary\nSection 1F\npage 4 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":4},{"sectionNumber":"1F","sectionType":"section","heading":"Notes","content":"1F Notes\n(1) A note included in this Act is explanatory and is not part of this Act.\nNote See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.\n(2) In this section:\nnote includes material enclosed in brackets in section headings.\nNote Some sections of this Act contain bracketed notes under their headings\n(eg Model Law art 1) drawing attention to equivalent or comparable\n(though not necessarily identical) provisions of the UNCITRAL Model\nLaw on International Commercial Arbitration.\n\nGeneral Provisions Part 1\nSection 1\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 5\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nPart 1 General Provisions\n1 Scope of application\n(Model Law art 1)\n(1) This Act applies to domestic commercial arbitrations.\nNote The International Arbitration Act 1974 (Cwlth) covers international\ncommercial arbitrations and the enforcement of foreign arbitral awards.\n(2) The provisions of this Act, except section 8, section 9, section 17H,\nsection 17I, section 17J, section 35 and section 36, apply only if the\nplace of arbitration is in the ACT.\n(3) An arbitration is domestic if—\n(a) the parties to an arbitration agreement have, at the time of the\nconclusion of that agreement, their places of business in\nAustralia; and\n(b) the parties have (whether in the arbitration agreement or in any\nother document in writing) agreed that any dispute that has\narisen or may arise between them is to be settled by arbitration;\nand\n(c) it is not an arbitration to which the Model Law (as given effect\nby the International Arbitration Act 1974 (Cwlth)) applies.\n(4) For subsection (3)—\n(a) if a party has more than 1 place of business, the place of business\nis that which has the closest relationship to the arbitration\nagreement; and\n(b) if a party does not have a place of business, reference is to be\nmade to the party’s habitual residence.\n(5) This Act does not affect any other Act by virtue of which certain\ndisputes may not be submitted to arbitration or may be submitted to\narbitration only according to provisions other than those of this Act.\n\nPart 1 General Provisions\nSection 2\npage 6 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(6) Subject to subsection (5), this Act applies to arbitrations provided for\nin any other Act as if—\n(a) the other Act were an arbitration agreement; and\n(b) the arbitration were pursuant to an arbitration agreement; and\n(c) the parties to the dispute which, by virtue of the other Act, is\nreferred to arbitration were the parties to the arbitration\nagreement;\nexcept in so far as the other Act otherwise indicates or requires.\nNote 1 A note to the model law states that the term ‘commercial’ should be given\na wide interpretation so as to cover matters arising from all relationships\nof a commercial nature, whether contractual or not. Relationships of a\ncommercial nature include, but are not limited to, the following\ntransactions: any trade transaction for the supply or exchange of goods or\nservices; distribution agreement; commercial representation or agency;\nfactoring; leasing; construction of works; consulting; engineering;\nlicensing; investment; financing; banking; insurance; exploitation\nagreement or concession; joint venture and other forms of industrial or\nbusiness co-operation; carriage of goods or passengers by air, sea, rail or\nroad.\nNote 2 This section differs from the Model Law to the extent necessary to apply\nart 1 as incorporated in this Act to domestic commercial arbitrations.\nSection 40 contains provisions that also relate to the application of this\nAct.\n2 Rules of interpretation\n(Model Law art 2)\n(1) [omitted]\nNote This section differs from the Model Law to the extent that the definitions\nin art 2 (1) are set out in the dictionary to this Act.\n(2) Where a provision of this Act, except section 28, leaves the parties\nfree to determine a certain issue, such freedom includes the right of\nthe parties to authorise a third-party, including an institution, to make\nthat determination.\n\nGeneral Provisions Part 1\nSection 2A\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 7\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(3) Where a provision of this Act refers to the fact that the parties have\nagreed or that they may agree or in any other way refers to an\nagreement of the parties, such agreement includes any arbitration\nrules referred to in that agreement.\n(4) Where a provision of this Act, other than section 25 (1) (a) and section\n32 (2) (a), refers to a claim, it also applies to a counter-claim, and\nwhere it refers to a defence, it also applies to a defence to such\ncounter-claim.\n","sortOrder":5},{"sectionNumber":"2A","sectionType":"section","heading":"International origin and general principles","content":"2A International origin and general principles\n(Model Law art 2A)\n(1) Subject to section 1C, in the interpretation of this Act, regard is to be\nhad to the need to promote, so far as practicable, uniformity between\nthe application of this Act to domestic commercial arbitrations and\nthe application of the provisions of the Model Law (as given effect\nby the International Arbitration Act 1974 (Cwlth)) to international\ncommercial arbitrations and the observance of good faith.\nNote This section differs from the Model Law. Art 2A (1) has been changed as\na consequence of the application of the Act to domestic (instead of\ninternational) commercial arbitrations. Art 2A (2) is omitted because it is\ncovered by the provision referred to in section 1C (4). Subsections (3)\nand (4) reflect the International Arbitration Act 1974 (Cwlth), s 17.\n(2) [omitted]\n(3) Without limiting subsection (1), in interpreting this Act, reference\nmay be made to documents of—\n(a) the United Nations Commission on International Trade Law that\nrelate to the Model Law; and\n(b) the Commission’s working groups for the preparation of the\nModel Law.\n\nPart 1 General Provisions\nSection 3\npage 8 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(4) Subsection (3) does not affect the application of the Legislation Act,\nsection 141 (Non-legislative context generally) or section 142\n(Non-legislative context—material that may be considered) for the\npurposes of interpreting this Act.\n3 Receipt of written communications\n(Model Law art 3)\n(1) Unless otherwise agreed by the parties—\n(a) any written communication is taken to be received if—\n(i) it is delivered to the addressee personally; or\n(ii) it is delivered to the addressee’s place of business, habitual\nresidence or mailing address; or\n(iii) if none of these can be found after making a reasonable\ninquiry—it is delivered to the addressee’s last-known place\nof business, habitual residence or mailing address by\nregistered letter or any other means which provides a\nrecord of the attempt to deliver it; and\n(b) the communication is taken to have been received on the day it\nis delivered.\n(2) The provisions of this section do not apply to communications in\ncourt proceedings.\n4 Waiver of right to object\n(Model Law art 4)\nA party who knows that any provision of this Act from which the\nparties may derogate or any requirement under the arbitration\nagreement has not been complied with and yet proceeds with the\narbitration without stating the party’s objection to such\nnon-compliance without undue delay or, if a time-limit is provided\nfor stating the party’s objection, within such period of time, is taken\nto have waived the party’s right to object.\n\nGeneral Provisions Part 1\nSection 5\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 9\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n5 Extent of court intervention\n(Model Law art 5)\nIn matters governed by this Act, no court must intervene except where\nso provided by this Act.\n6 Court for certain functions of arbitration assistance and\nsupervision\n(Model Law art 6)\n(1) Subject to subsection (2), the functions referred to in the following\nsections must be performed by the Supreme Court:\n(a) section 11 (3) and (4);\n(b) section 13 (4);\n(c) section 14 (2);\n(d) section 16 (9);\n(e) section 17H, section 17I and section 17J;\n(f) section 19 (6);\n(g) section 27, section 27A, section 27B, section 27H, section 27I\nand section 27J;\n(h) section 33D, section 34 and section 34A.\n(2) If—\n(a) an arbitration agreement provides that the Magistrates Court is\nto have jurisdiction under this Act; or\n\n","sortOrder":6},{"sectionNumber":"Part 1","sectionType":"part","heading":"General Provisions","content":"Part 1 General Provisions\nSection 6\npage 10 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(b) the parties to an arbitration agreement have agreed, in writing,\nthat the Magistrates Court is to have jurisdiction under this Act\nand that agreement is in force;\nthe functions are to be performed, in relation to that agreement, by the\nMagistrates Court, as the case requires.\nNote This section differs from the Model Law to the extent that it relates to\nfunctions conferred on the court with respect to domestic commercial\narbitrations that are not referred to in the Model Law.\n\nArbitration agreement Part 2\nSection 7\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 11\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nPart 2 Arbitration agreement\n","sortOrder":7},{"sectionNumber":"7","sectionType":"section","heading":"Definition and form of arbitration agreement","content":"7 Definition and form of arbitration agreement\n(Model Law art 7)\n(1) An arbitration agreement is an agreement by the parties to submit to\narbitration all or certain disputes which have arisen or which may\narise between them in respect of a defined legal relationship, whether\ncontractual or not.\n(2) An arbitration agreement may be in the form of an arbitration clause\nin a contract or in the form of a separate agreement.\n(3) The arbitration agreement must be in writing.\n(4) An arbitration agreement is in writing if its content is recorded in any\nform, whether or not the arbitration agreement or contract has been\nconcluded orally, by conduct, or by other means.\n(5) The requirement that an arbitration agreement be in writing is met by\nan electronic communication if the information contained in it is\naccessible so as to be useable for subsequent reference.\n(6) Also, an arbitration agreement is in writing if it is contained in an\nexchange of statements of claim and defence in which the existence\nof an agreement is alleged by 1 party and not denied by the other.\n(7) The reference in a contract to any document containing an arbitration\nclause constitutes an arbitration agreement in writing, provided that\nthe reference is such as to make that clause part of the contract.\n\n","sortOrder":8},{"sectionNumber":"Part 2","sectionType":"part","heading":"Arbitration agreement","content":"Part 2 Arbitration agreement\nSection 8\npage 12 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(8) In this section:\ndata message means information generated, sent, received or stored\nby electronic, magnetic, optical or similar means, including, but not\nlimited to, electronic data interchange (EDI), electronic mail,\ntelegram or telecopy.\nelectronic communication means any communication that the parties\nmake by means of data messages.\nNote This section is substantially the same as Option 1 set out in the Model\nLaw, art 7.\n","sortOrder":9},{"sectionNumber":"8","sectionType":"section","heading":"Arbitration agreement and substantive claim before court","content":"8 Arbitration agreement and substantive claim before court\n(Model Law art 8)\n(1) A court before which an action is brought in a matter which is the\nsubject of an arbitration agreement must, if a party so requests not\nlater than when submitting the party’s first statement on the substance\nof the dispute, refer the parties to arbitration unless it finds that the\nagreement is null and void, inoperative or incapable of being\nperformed.\n(2) Where an action referred to in subsection (1) has been brought,\narbitral proceedings may nevertheless be commenced or continued,\nand an award may be made, while the issue is pending before the\ncourt.\n","sortOrder":10},{"sectionNumber":"9","sectionType":"section","heading":"Arbitration agreement and interim measures by court","content":"9 Arbitration agreement and interim measures by court\n(Model Law art 9)\nIt is not incompatible with an arbitration agreement for a party to\nrequest, before or during arbitral proceedings, from a court an interim\nmeasure of protection and for a court to grant the measure.\n\nComposition of arbitral tribunal Part 3\nSection 10\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 13\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nPart 3 Composition of arbitral tribunal\n","sortOrder":11},{"sectionNumber":"10","sectionType":"section","heading":"Number of arbitrators","content":"10 Number of arbitrators\n(Model Law art 10)\n(1) The parties are free to determine the number of arbitrators.\n(2) Failing such determination, the number of arbitrators is to be 1.\nNote Subsection (2) differs from the Model Law, art 10 (2), which provides for\n3 arbitrators if the parties do not determine the number of arbitrators.\n","sortOrder":12},{"sectionNumber":"11","sectionType":"section","heading":"Appointment of arbitrators","content":"11 Appointment of arbitrators\n(Model Law art 11)\n(1) [omitted]\nNote The Model Law, art 11 (1) (which provides that no person is precluded\nby nationality from acting as an arbitrator unless otherwise agreed by the\nparties) has been omitted.\n(2) The parties are free to agree on a procedure of appointing the\narbitrator or arbitrators, subject to subsections (4) and (5).\n(3) Failing such agreement—\n(a) in an arbitration with 3 arbitrators and 2 parties, each party is to\nappoint 1 arbitrator, and the 2 arbitrators so appointed are to\nappoint the third arbitrator and if a party fails to appoint the\narbitrator within 30 days of receipt of a request to do so from the\nother party, or if the 2 arbitrators fail to agree on the third\narbitrator within 30 days of their appointment, the appointment\nis to be made, on the request of a party, by the court; and\n(b) in an arbitration with a sole arbitrator, if the parties are unable\nto agree on the arbitrator, an arbitrator is to be appointed, on the\nrequest of a party, by the court; and\n(c) in an arbitration with 2, 4 or more arbitrators or with 3 arbitrators\nand more than 2 parties the appointment is to be made, at the\nrequest of a party, by the court.\n\nPart 3 Composition of arbitral tribunal\nSection 11\npage 14 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(4) Where, under an appointment procedure agreed on by the parties—\n(a) a party fails to act as required under the procedure; or\n(b) the parties, or 2 or more arbitrators, are unable to reach an\nagreement expected of them under the procedure; or\n(c) a third-party, including an institution, fails to perform any\nfunction entrusted to it under the procedure;\nany party may request the court to take the necessary measure, unless\nthe agreement on the appointment procedure provides other means\nfor securing the appointment.\n(5) A decision within the limits of the court’s authority on a matter\nentrusted by subsection (3) or (4) to the court is final.\n(6) The court, in appointing an arbitrator, is to have due regard to any\nqualifications required of the arbitrator by the agreement of the\nparties and to such considerations as are likely to secure the\nappointment of an independent and impartial arbitrator.\nNote This section (other than ss (3) (c), (5) and (6)) is substantially the same\nas the Model Law, art 11. Subsection (3) (c) is added to cover the\ncontingency of the parties failing to agree on the procedure to appoint\narbitrators in certain circumstances not covered by the Model Law as\nincorporated in this Act. It is based on the Arbitration Act 1996 (NZ), sch\n1, cl 11 (6). Subsection (5) makes it clear that, although a decision of the\ncourt is generally final, review of a decision of the court that is not made\nwithin the limits of its powers and functions is not precluded. Subsection\n(6) does not include the requirement in the Model Law, art 11 (5) that the\ncourt take into account the advisability of appointing an arbitrator of a\nnationality other than those of the parties in appointing a sole or third\narbitrator as this is not relevant in the context of domestic commercial\narbitrations.\n\nComposition of arbitral tribunal Part 3\nSection 12\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 15\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":13},{"sectionNumber":"12","sectionType":"section","heading":"Grounds for challenge","content":"12 Grounds for challenge\n(Model Law art 12)\n(1) When a person is approached in connection with the person’s possible\nappointment as an arbitrator, the person must disclose any\ncircumstances likely to give rise to justifiable doubts as to the\nperson’s impartiality or independence.\n(2) An arbitrator, from the time of the arbitrator’s appointment and\nthroughout the arbitral proceedings, must without delay disclose any\ncircumstances of the kind referred to in subsection (1) to the parties\nunless they have already been informed of them by the arbitrator.\n(3) An arbitrator may be challenged only if circumstances exist that give\nrise to justifiable doubts as to the arbitrator’s impartiality or\nindependence, or if the arbitrator does not possess qualifications\nagreed to by the parties.\n(4) A party may challenge an arbitrator appointed by the party, or in\nwhose appointment the party has participated, only for reasons of\nwhich the party becomes aware after the appointment has been made.\n(5) For the purposes of subsection (1), there are justifiable doubts as to\nthe impartiality or independence of a person approached in\nconnection with a possible appointment as arbitrator only if there is a\nreal danger of bias on the part of the person in conducting the\narbitration.\n(6) For the purposes of subsection (3), there are justifiable doubts as to\nthe impartiality or independence of an arbitrator only if there is a real\ndanger of bias on the part of the arbitrator in conducting the\narbitration.\nNote This section (other than ss (5) and (6)) is substantially the same as the\nModel Law, art 12. Subsections (5) and (6) provide that the test for\nwhether there are justifiable doubts as to the impartiality or independence\nof a person or arbitrator is whether there is a real danger of bias.\n\n","sortOrder":14},{"sectionNumber":"Part 3","sectionType":"part","heading":"Composition of arbitral tribunal","content":"Part 3 Composition of arbitral tribunal\nSection 13\npage 16 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":15},{"sectionNumber":"13","sectionType":"section","heading":"Challenge procedure","content":"13 Challenge procedure\n(Model Law art 13)\n(1) The parties are free to agree on a procedure for challenging an\narbitrator, subject to subsection (4).\n(2) Failing such agreement, a party who intends to challenge an arbitrator\nmust, within 15 days after becoming aware of the constitution of the\narbitral tribunal or after becoming aware of any circumstance referred\nto in section 12 (3), send a written statement of the reasons for the\nchallenge to the arbitral tribunal.\n(3) Unless the challenged arbitrator withdraws from office or the other\nparty agrees to the challenge, the arbitral tribunal must decide on the\nchallenge.\n(4) If a challenge under any procedure agreed on by the parties or under\nthe procedure of subsections (2) and (3) is not successful, the\nchallenging party may request, within 30 days after having received\nnotice of the decision rejecting the challenge, the court to decide on\nthe challenge.\n(5) A decision of the court under subsection (4) that is within the limits\nof the authority of the court is final.\n(6) While a request under subsection (4) is pending, the arbitral tribunal,\nincluding the challenged arbitrator, may continue the arbitral\nproceedings and make an award.\nNote This section (other than s (5)) is substantially the same as art 13 of the\nModel Law. Subsection (5) makes it clear that, although a decision of the\ncourt is generally final, review of a decision of the court that is not made\nwithin the limits of its powers and functions is not precluded.\n\nComposition of arbitral tribunal Part 3\nSection 14\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 17\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":16},{"sectionNumber":"14","sectionType":"section","heading":"Failure or impossibility to act","content":"14 Failure or impossibility to act\n(Model Law art 14)\n(1) If an arbitrator becomes in law or in fact unable to perform the\narbitrator’s functions or for other reasons fails to act without undue\ndelay, the arbitrator’s mandate terminates if the arbitrator withdraws\nfrom office or if the parties agree on the termination.\n(2) Otherwise, if a controversy remains concerning any of these grounds,\nany party may request the court to decide on the termination of the\nmandate.\n(3) A decision of the court under subsection (2) that is within the limits\nof the authority of the court is final.\n(4) If, under this section or section 13 (3), an arbitrator withdraws from\noffice or a party agrees to the termination of the mandate of an\narbitrator, this does not imply acceptance of the validity of any ground\nreferred to in this section or section 12 (3).\nNote This section (other than s (3)) is substantially the same as the Model Law,\nart 14. Subsection (3) makes it clear that, although a decision of the court\nis generally final, review of a decision of the court that is not made within\nthe limits of its powers and functions is not precluded.\n","sortOrder":17},{"sectionNumber":"15","sectionType":"section","heading":"Appointment of substitute arbitrator","content":"15 Appointment of substitute arbitrator\n(Model Law art 15)\nWhere the mandate of an arbitrator terminates under section 13 or\nsection 14 or because of the arbitrator’s withdrawal from office for\nany other reason or because of the revocation of the arbitrator’s\nmandate by agreement of the parties or in any other case of\ntermination of the arbitrator’s mandate, a substitute arbitrator must be\nappointed according to the rules that were applicable to the\nappointment of the arbitrator being replaced.\n\nPart 4 Jurisdiction of arbitral tribunal\nSection 16\npage 18 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":18},{"sectionNumber":"Part 4","sectionType":"part","heading":"Jurisdiction of arbitral tribunal","content":"Part 4 Jurisdiction of arbitral tribunal\n","sortOrder":19},{"sectionNumber":"16","sectionType":"section","heading":"Competence of arbitral tribunal to rule on its jurisdiction","content":"16 Competence of arbitral tribunal to rule on its jurisdiction\n(Model Law art 16)\n(1) The arbitral tribunal may rule on its own jurisdiction, including any\nobjections with respect to the existence or validity of the arbitration\nagreement.\n(2) For that purpose, an arbitration clause which forms part of a contract\nis to be treated as an agreement independent of the other terms of the\ncontract.\n(3) A decision by the arbitral tribunal that the contract is null and void\ndoes not of itself entail the invalidity of the arbitration clause.\nNote The Model Law provides that such a decision does not ‘ipso jure’ entail\nthe invalidity of the arbitration clause.\n(4) A plea that the arbitral tribunal does not have jurisdiction must be\nraised not later than the submission of the statement of defence.\n(5) A party is not precluded from raising such a plea by the fact that the\nparty has appointed, or participated in the appointment of, an\narbitrator.\n(6) A plea that the arbitral tribunal is exceeding the scope of its authority\nmust be raised as soon as the matter alleged to be beyond the scope\nof its authority is raised during the arbitral proceedings.\n(7) The arbitral tribunal may, in the case of a plea referred to in\nsubsection (4) or (6), admit a later plea if it considers the delay\njustified.\n(8) The arbitral tribunal may rule on a plea referred to in subsection (4)\nor (6) either as a preliminary question or in an award on the merits.\n(9) If the arbitral tribunal rules as a preliminary question that it has\njurisdiction, any party may request, within 30 days after having\nreceived notice of that ruling, the court to decide the matter.\n\nJurisdiction of arbitral tribunal Part 4\nSection 16\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(10) A decision of the court under subsection (9) that is within the limits\nof the authority of the court is final.\n(11) While a request under subsection (9) is pending, the arbitral tribunal\nmay continue the arbitral proceedings and make an award.\nNote This section (other than s (10)) is substantially the same as the Model\nLaw, art 16. Subsection (10) makes it clear that, although a decision of\nthe court is generally final, review of a decision of the court that is not\nmade within the limits of its powers and functions is not precluded.\n\nPart 4A Interim measures\nDivision 1 Interim measures\nSection 17\npage 20 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nPart 4A Interim measures\n","sortOrder":20},{"sectionNumber":"Div 1","sectionType":"division","heading":"Interim measures","content":"Division 1 Interim measures\n","sortOrder":21},{"sectionNumber":"17","sectionType":"section","heading":"Power of arbitral tribunal to order interim measures","content":"17 Power of arbitral tribunal to order interim measures\n(Model Law art 17)\n(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at\nthe request of a party, grant interim measures.\n(2) An interim measure is any temporary measure, whether in the form\nof an award or in another form, by which, at any time prior to the\nissuance of the award by which the dispute is finally decided, the\narbitral tribunal orders a party to—\n(a) maintain or restore the status quo pending determination of the\ndispute; or\n(b) take action that would prevent, or refrain from taking action that\nis likely to cause, current or imminent harm or prejudice to the\narbitral process itself; or\n(c) provide a means of preserving assets out of which a subsequent\naward may be satisfied; or\n(d) preserve evidence that may be relevant and material to the\nresolution of the dispute.\n(3) Without limiting subsection (2), the arbitral tribunal may make orders\nwith respect to any of the following:\n(a) security for costs;\n(b) discovery of documents and interrogatories;\n(c) giving of evidence by affidavit;\n(d) the inspection of any property which is or forms part of the\nsubject-matter of the dispute;\n\nInterim measures Part 4A\nInterim measures Division 1\nSection 17A\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(e) the taking of photographs of any property which is or forms part\nof the subject-matter of the dispute;\n(f) samples to be taken from, or any observation to be made of or\nexperiment conducted on, any property which is or forms part\nof the subject-matter of the dispute;\n(g) dividing, recording and strictly enforcing the time allocated for\na hearing between the parties (a stop clock arbitration).\nNote Subsections (1) and (2) are substantially the same as the Model Law,\nart 17. There is no equivalent s (3) in the Model Law.\n","sortOrder":22},{"sectionNumber":"17A","sectionType":"section","heading":"Conditions for granting interim measures","content":"17A Conditions for granting interim measures\n(Model Law art 17A)\n(1) The party requesting an interim measure under section 17 (2) (a), (b)\nor (c) must satisfy the arbitral tribunal that—\n(a) harm not adequately reparable by an award of damages is likely\nto result if the measure is not ordered, and that harm\nsubstantially outweighs the harm that is likely to result to the\nparty against whom the measure is directed if the measure is\ngranted; and\n(b) there is a reasonable possibility that the requesting party will\nsucceed on the merits of the claim.\n(2) The determination on the possibility referred to in subsection (1) (b)\ndoes not affect the discretion of the arbitral tribunal in making any\nsubsequent determination.\n(3) With regard to a request for an interim measure under\nsection 17 (2) (d), the requirements in subsection (1) (a) and (b) and\nsubsection (2) apply only to the extent the arbitral tribunal considers\nappropriate.\n\nPart 4A Interim measures\nDivision 2 Preliminary orders\nSection 17B\npage 22 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":23},{"sectionNumber":"Div 2","sectionType":"division","heading":"Preliminary orders","content":"Division 2 Preliminary orders\n","sortOrder":24},{"sectionNumber":"17B","sectionType":"section","heading":"Applications for preliminary orders and conditions for","content":"17B Applications for preliminary orders and conditions for\ngranting preliminary orders\n(Model Law art 17B)\n[omitted]\nNote The Model Law, art 17B, which provides for ex parte requests for interim\nmeasures together with applications for preliminary orders directing\nparties not to frustrate the interim measures, has been omitted.\n","sortOrder":25},{"sectionNumber":"17C","sectionType":"section","heading":"Specific regime for preliminary orders","content":"17C Specific regime for preliminary orders\n(Model Law art 17C)\n[omitted]\nNote The Model Law, art 17C, which contains safeguards for the party against\nwhom a preliminary order is directed under art 17B, is omitted as a\nconsequence of the omission of art 17B.\n","sortOrder":26},{"sectionNumber":"Div 3","sectionType":"division","heading":"Provisions applicable to interim","content":"Division 3 Provisions applicable to interim\nmeasures\n","sortOrder":27},{"sectionNumber":"17D","sectionType":"section","heading":"Modification, suspension, termination","content":"17D Modification, suspension, termination\n(Model Law art 17D)\nThe arbitral tribunal may modify, suspend or terminate an interim\nmeasure it has granted, on application of any party or, in exceptional\ncircumstances and on prior notice to the parties, on the arbitral\ntribunal’s own initiative.\nNote This section is substantially the same as the Model Law, art 17D but\ncontains no reference to preliminary orders as a consequence of this Act\nnot including an equivalent of the Model Law, art 17B and art 17C.\n\nInterim measures Part 4A\nProvisions applicable to interim measures Division 3\nSection 17E\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 23\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":28},{"sectionNumber":"17E","sectionType":"section","heading":"Provision of security","content":"17E Provision of security\n(Model Law art 17E)\n(1) The arbitral tribunal may require the party requesting an interim\nmeasure to provide appropriate security in connection with the\nmeasure.\n(2) [omitted]\nNote Subsection (1) is the same as the Model Law, art 17E (1). Art 17E (2) is\nomitted as a consequence of this Act not including equivalents to the\nModel Law, art 17B and art 17C.\n","sortOrder":29},{"sectionNumber":"17F","sectionType":"section","heading":"Disclosure","content":"17F Disclosure\n(Model Law art 17F)\n(1) The arbitral tribunal may require any party promptly to disclose any\nmaterial change in the circumstances on the basis of which the\nmeasure was requested or granted.\n(2) [omitted]\nNote Subsection (1) is the same as the Model Law, art 17F (1). Art 17F (2) is\nomitted as a consequence of this Act not including equivalents to the\nModel Law, art 17B and art 17C.\n","sortOrder":30},{"sectionNumber":"17G","sectionType":"section","heading":"Costs and damages","content":"17G Costs and damages\n(Model Law art 17G)\n(1) The party requesting an interim measure is liable for any costs and\ndamages caused by the measure to any party if the arbitral tribunal\nlater determines that, in the circumstances, the measure should not\nhave been granted.\n(2) The arbitral tribunal may award such costs and damages at any point\nduring the proceedings.\nNote This section is substantially the same as the Model Law, art 17G but the\nreference to applications for preliminary orders is omitted as a\nconsequence of this Act not including equivalents to the Model Law,\nart 17B and art 17C.\n\nPart 4A Interim measures\nDivision 4 Recognition and enforcement of interim measures\nSection 17H\npage 24 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":31},{"sectionNumber":"Div 4","sectionType":"division","heading":"Recognition and enforcement of","content":"Division 4 Recognition and enforcement of\ninterim measures\n","sortOrder":32},{"sectionNumber":"17H","sectionType":"section","heading":"Recognition and enforcement","content":"17H Recognition and enforcement\n(Model Law art 17H)\n(1) An interim measure issued by an arbitral tribunal under the law of the\nTerritory is to be recognised as binding and, unless otherwise\nprovided by the arbitral tribunal, enforced on application to the court,\nsubject to the provisions of section 17I.\n(2) An interim measure issued by an arbitral tribunal under the law of a\nState or another Territory is to be recognised as binding in the ACT\nand, unless otherwise provided by the arbitral tribunal, enforced on\napplication to the court, irrespective of the State or other Territory in\nwhich it was issued, subject to the provisions of section 17I.\n(3) The party who is seeking or has obtained recognition or enforcement\nof an interim measure must promptly inform the court of any\ntermination, suspension or modification of that interim measure.\n(4) The court may, if it considers it proper, order the requesting party to\nprovide appropriate security if the arbitral tribunal has not already\nmade a determination with respect to security or where such a\ndecision is necessary to protect the rights of third parties.\nNote This section differs from the Model Law, art 17H to the extent necessary\nto apply art 17H as incorporated in this Act in the context of domestic\ncommercial arbitrations.\n\nInterim measures Part 4A\nRecognition and enforcement of interim measures Division 4\nSection 17I\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 25\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":33},{"sectionNumber":"17I","sectionType":"section","heading":"Grounds for refusing recognition or enforcement","content":"17I Grounds for refusing recognition or enforcement\n(Model Law art 17I)\n(1) Recognition or enforcement of an interim measure may be refused\nonly—\n(a) at the request of the party against whom it is invoked if the court\nis satisfied that—\n(i) such a refusal is warranted on the grounds set out in section\n36 (1) (a) (i) to (iv); or\n(ii) the arbitral tribunal’s decision with respect to the provision\nof security in connection with the interim measure issued\nby the arbitral tribunal has not been complied with; or\n(iii) the interim measure has been terminated or suspended by\nthe arbitral tribunal or, where so empowered, by the court\nof the State or other Territory in which the arbitration takes\nplace or under the law of which that interim measure was\ngranted; or\n(b) if the court finds that—\n(i) the interim measure is incompatible with the powers\nconferred on the court unless the court decides to\nreformulate the interim measure to the extent necessary to\nadapt it to its own powers and procedures for the purposes\nof enforcing that interim measure and without modifying\nits substance; or\n(ii) any of the grounds set out in section 36 (1) (b) (i) or (ii)\napply to the recognition and enforcement of the interim\nmeasure.\n(2) Any determination made by the court on any ground in subsection (1)\nis effective only for the purposes of the application to recognise and\nenforce the interim measure.\n\n","sortOrder":34},{"sectionNumber":"Part 4A","sectionType":"part","heading":"Interim measures","content":"Part 4A Interim measures\nDivision 5 Court-ordered interim measures\nSection 17J\npage 26 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(3) The court must not, in making a determination with respect to the\nrecognition or enforcement sought, undertake a review of the\nsubstance of the interim measure.\nNote This section is substantially the same as the Model Law, art 17I but has\nbeen modified to the extent necessary to apply art 17I as incorporated in\nthis Act in the context of domestic commercial arbitrations.\n","sortOrder":35},{"sectionNumber":"Div 5","sectionType":"division","heading":"Court-ordered interim measures","content":"Division 5 Court-ordered interim measures\n","sortOrder":36},{"sectionNumber":"17J","sectionType":"section","heading":"Court-ordered interim measures","content":"17J Court-ordered interim measures\n(Model Law art 17J)\n(1) The court has the same power of issuing an interim measure in\nrelation to arbitration proceedings as it has in relation to proceedings\nin courts.\n(2) The court is to exercise the power in accordance with its own\nprocedures taking into account the specific features of a domestic\ncommercial arbitration.\nNote This section is substantially the same as the Model Law, art 17J but has\nbeen modified to the extent necessary to apply art 17J as incorporated in\nthis Act in the context of domestic commercial arbitrations.\n\nConduct of arbitral proceedings Part 5\nSection 18\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 27\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nPart 5 Conduct of arbitral proceedings\n","sortOrder":37},{"sectionNumber":"18","sectionType":"section","heading":"Equal treatment of parties","content":"18 Equal treatment of parties\n(Model Law art 18)\nThe parties must be treated with equality and each party must be given\na reasonable opportunity of presenting the party’s case.\nNote This section differs from the Model Law to the extent that it requires a\nparty to be given a ‘reasonable’, instead of ‘full’, opportunity of\npresenting the party’s case.\n","sortOrder":38},{"sectionNumber":"19","sectionType":"section","heading":"Determination of rules of procedure","content":"19 Determination of rules of procedure\n(Model Law art 19)\n(1) Subject to the provisions of this Act, the parties are free to agree on\nthe procedure to be followed by the arbitral tribunal in conducting the\nproceedings.\n(2) Failing such agreement, the arbitral tribunal may, subject to the\nprovisions of this Act, conduct the arbitration in such manner as it\nconsiders appropriate.\n(3) The power conferred on the arbitral tribunal includes the power to\ndetermine the admissibility, relevance, materiality and weight of any\nevidence.\n(4) The power conferred on the tribunal also includes the power to make\norders or give directions for the examination of a party or witness on\noath or affirmation.\n(5) For the purposes of the exercise of the power referred to in subsection\n(4), the arbitral tribunal may administer any necessary oath or take\nany necessary affirmation.\n(6) An order made or direction given by an arbitral tribunal in the course\nof arbitral proceedings is, by leave of the court, enforceable in the\nsame manner as if it were an order of the court and, where leave is so\ngiven, judgment may be entered in terms of the order or direction.\n\nPart 5 Conduct of arbitral proceedings\nSection 20\npage 28 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":39},{"sectionNumber":"20","sectionType":"section","heading":"Place of arbitration","content":"20 Place of arbitration\n(Model Law art 20)\n(1) The parties are free to agree on the place of arbitration.\n(2) Failing such agreement, the place of arbitration is to be determined\nby the arbitral tribunal having regard to the circumstances of the case,\nincluding the convenience of the parties.\n(3) Despite subsection (1), the arbitral tribunal may, unless otherwise\nagreed by the parties, meet at any place (whether or not in the ACT)\nit considers appropriate for consultation among its members, for\nhearing witnesses, experts or the parties, or for inspection of goods,\nother property or documents.\n","sortOrder":40},{"sectionNumber":"21","sectionType":"section","heading":"Commencement of arbitral proceedings","content":"21 Commencement of arbitral proceedings\n(Model Law art 21)\nUnless otherwise agreed by the parties, the arbitral proceedings in\nrespect of a particular dispute commence on the date on which a\nrequest for that dispute to be referred to arbitration is received by the\nrespondent.\n","sortOrder":41},{"sectionNumber":"22","sectionType":"section","heading":"Language","content":"22 Language\n(Model Law art 22)\n(1) The parties are free to agree on the language or languages to be used\nin the arbitral proceedings.\n(2) Failing agreement as referred to in subsection (1), the arbitral tribunal\nis to determine the language or languages to be used in the\nproceedings.\n(3) This agreement or determination, unless otherwise specified in the\nagreement or determination, is to apply to any written statement by a\nparty, any hearing and any award, decision or other communication\nby the arbitral tribunal.\n\nConduct of arbitral proceedings Part 5\nSection 23\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 29\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(4) The arbitral tribunal may order that any documentary evidence is to\nbe accompanied by a translation into the language or languages\nagreed on by the parties or determined by the arbitral tribunal.\n23 Statements of claim and defence\n(Model Law art 23)\n(1) Subject to any contrary agreement of the parties or a direction of the\narbitral tribunal, within the period of time agreed by the parties or\ndetermined by the arbitral tribunal, the claimant must state the facts\nsupporting his or her claim, the points at issue and the relief or remedy\nsought, and the respondent must state the respondent’s defence in\nrespect of these particulars, unless the parties have otherwise agreed\nas to the required elements of such statements.\n(2) The parties may submit with their statements all documents they\nconsider to be relevant or may add a reference to the documents or\nother evidence they will submit.\n(3) Unless otherwise agreed by the parties, either party may amend or\nsupplement the party’s claim or defence during the course of the\narbitral proceedings, unless the arbitral tribunal considers it\ninappropriate to allow such amendment having regard to the delay in\nmaking it.\n(4) Subsection (1) does not require a statement by a claimant or\nrespondent to be in a particular form.\n","sortOrder":42},{"sectionNumber":"24","sectionType":"section","heading":"Hearings and written proceedings","content":"24 Hearings and written proceedings\n(Model Law art 24)\n(1) Subject to any contrary agreement by the parties, the arbitral tribunal\nis to decide whether to hold oral hearings for the presentation of\nevidence or for oral argument, or whether the proceedings are to be\nconducted on the basis of documents and other materials.\n(2) However, unless the parties have agreed that no hearings are to be\nheld, the arbitral tribunal must hold such hearings at an appropriate\nstage of the proceedings, if so requested by a party.\n\nPart 5 Conduct of arbitral proceedings\nSection 24A\npage 30 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(3) The parties must be given sufficient advance notice of any hearing\nand of any meeting of the arbitral tribunal for the purposes of\ninspection of goods, other property or documents.\n(4) All statements, documents or other information supplied to the\narbitral tribunal by 1 party must be communicated to the other party.\n(5) Also, any expert report or evidentiary document on which the arbitral\ntribunal may rely in making its decision must be communicated to the\nparties.\n","sortOrder":43},{"sectionNumber":"24A","sectionType":"section","heading":"Representation","content":"24A Representation\n(1) The parties may appear or act in person, or may be represented by\nanother person of their choice, in any oral hearings under section 24.\n(2) A person who is not an Australian legal practitioner does not commit\nan offence under, or breach the provisions of, the Legal Profession\nAct 2006 or any other Act merely by representing a party in arbitral\nproceedings in the ACT.\nNote There is no equivalent of this section in the Model Law.\n","sortOrder":44},{"sectionNumber":"24B","sectionType":"section","heading":"General duties of parties","content":"24B General duties of parties\n(1) The parties must do all things necessary for the proper and\nexpeditious conduct of the arbitral proceedings.\n(2) Without limitation, the parties must without undue delay—\n(a) comply with any order or direction of the arbitral tribunal with\nrespect to any procedural, evidentiary or other matter; and\n(b) take any necessary steps to obtain a decision (if required) of the\ncourt with respect to any function conferred on the court under\nsection 6.\n(3) A party must not wilfully do, or cause to be done, any act to delay or\nprevent an award being made.\nNote There is no equivalent of this section in the Model Law.\n\nConduct of arbitral proceedings Part 5\nSection 25\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 31\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":45},{"sectionNumber":"25","sectionType":"section","heading":"Default of a party","content":"25 Default of a party\n(Model Law art 25)\n(1) Unless otherwise agreed by the parties, without showing sufficient\ncause—\n(a) if the claimant fails to communicate the claimant’s statement of\nclaim in accordance with section 23 (1)—the arbitral tribunal\nmay terminate the proceedings; or\n(b) if the respondent fails to communicate the respondent’s\nstatement of defence in accordance with section 23 (1)—the\narbitral tribunal may continue the proceedings without treating\nsuch failure in itself as an admission of the claimant’s\nallegations; or\n(c) if any party fails to appear at a hearing or to produce\ndocumentary evidence—the arbitral tribunal may continue the\nproceedings and make the award on the evidence before it.\n(2) Unless otherwise agreed by the parties, if a party fails to do any other\nthing necessary for the proper and expeditious conduct of the\narbitration the arbitral tribunal may—\n(a) if satisfied that there has been inordinate and inexcusable delay\non the part of the claimant in pursuing the claim—make an\naward dismissing the claim or may give directions (with or\nwithout conditions) for the speedy determination of the claim;\nor\n(b) if without sufficient cause a party fails to comply with any order\nor direction of the arbitral tribunal—make an order requiring the\nparty to comply with the terms of the earlier order or direction\nwithin the period specified by the arbitral tribunal (a peremptory\norder).\n\nPart 5 Conduct of arbitral proceedings\nSection 26\npage 32 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(3) If a party fails to comply with a peremptory order, the arbitral tribunal\nmay do any of the following:\n(a) direct that the party in default is not to be entitled to rely on any\nallegation or material which was the subject matter of the\nperemptory order;\n(b) draw such adverse inferences from the failure to comply as the\ncircumstances justify;\n(c) proceed to an award on the basis of any materials that have been\nproperly provided to the arbitral tribunal;\n(d) without limiting section 33B (4), in making an award give any\ndirection or order that it thinks fit as to the payment of the costs\nof the arbitration incurred in consequence of the\nnon-compliance.\nNote Subsection (1) is substantially the same as the Model Law, art 25. There\nare no equivalents to the other provisions of the section in the Model Law.\n","sortOrder":46},{"sectionNumber":"26","sectionType":"section","heading":"Expert appointed by arbitral tribunal","content":"26 Expert appointed by arbitral tribunal\n(Model Law art 26)\n(1) Unless otherwise agreed by the parties, the arbitral tribunal may—\n(a) appoint 1 or more experts to report to it on specific issues to be\ndetermined by the arbitral tribunal; and\n(b) require a party to give the expert any relevant information or to\nproduce, or to provide access to, any relevant documents, goods\nor other property for the expert’s inspection.\n(2) Unless otherwise agreed by the parties, if a party so requests or if the\narbitral tribunal considers it necessary, the expert must, after delivery\nof the expert’s written or oral report, participate in a hearing where\nthe parties have the opportunity to put questions to the expert and\npresent expert witnesses in order to testify on the points at issue.\n\nConduct of arbitral proceedings Part 5\nSection 27\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 33\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":47},{"sectionNumber":"27","sectionType":"section","heading":"Court assistance in taking evidence","content":"27 Court assistance in taking evidence\n(Model Law art 27)\n(1) The arbitral tribunal or a party with the approval of the arbitral\ntribunal may request from the court assistance in taking evidence.\n(2) The court may execute the request within its competence and subject\nto and in accordance with rules of court.\n","sortOrder":48},{"sectionNumber":"27A","sectionType":"section","heading":"Parties may obtain subpoenas","content":"27A Parties may obtain subpoenas\n(1) The court may, on the application of any party, and subject to and in\naccordance with rules of court, issue a subpoena requiring a person—\n(a) to attend for examination before the arbitral tribunal; or\n(b) to produce to the arbitral tribunal the documents specified in the\nsubpoena; or\n(c) to do both of those things.\n(2) A party may only make an application to the court under\nsubsection (1) with the permission of the arbitral tribunal.\n(3) A person must not be compelled under any subpoena issued in\naccordance with subsection (1) to answer any question or produce any\ndocument that the person could not be compelled to answer or\nproduce in a proceeding before the court.\nNote There is no equivalent to this section in the Model Law.\n","sortOrder":49},{"sectionNumber":"27B","sectionType":"section","heading":"Refusal or failure to attend before arbitral tribunal or to","content":"27B Refusal or failure to attend before arbitral tribunal or to\nproduce document\n(1) For this section, a person is a person in default in relation to\nproceedings before an arbitral tribunal under an arbitration agreement\nif the person fails to—\n(a) attend before the arbitral tribunal for examination when required\nunder a subpoena or by the arbitral tribunal to do so; or\n\nPart 5 Conduct of arbitral proceedings\nSection 27B\npage 34 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(b) produce a document that the person is required under a subpoena\nor by the arbitral tribunal to produce; or\n(c) when appearing as a witness before the arbitral tribunal—\n(i) take an oath or to make an affirmation or affidavit when\nrequired by the arbitral tribunal to do so; or\n(ii) answer a question that the witness is required by the\narbitral tribunal to answer; or\n(d) do any other thing which the arbitral tribunal may require.\nNote Fail includes refuse (see Legislation Act, dict, pt 1).\n(2) Unless otherwise agreed by the parties, the court may, on the\napplication of a party or the arbitral tribunal, order a person in default\nto do any or all of the following:\n(a) attend the court to be examined as a witness;\n(b) produce the relevant document to the court;\n(c) do the relevant thing.\n(3) A party may only make an application to the court under\nsubsection (2) with the permission of the arbitral tribunal.\n(4) The court must not make an order under subsection (2) in relation to\na person who is not a party to the arbitral proceedings unless—\n(a) before the order is made, the person is given an opportunity to\nmake representations to the court; and\n(b) the court is satisfied that it is reasonable in all the circumstances\nto make the order.\n(5) A person must not be compelled under an order made under\nsubsection (2) to answer any question or produce any document\nwhich the person could not be compelled to answer or produce in a\nproceeding before the court.\n\nConduct of arbitral proceedings Part 5\nSection 27C\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 35\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(6) If the court makes an order under subsection (2), it may in addition\nmake orders for the transmission to the arbitral tribunal of any of the\nfollowing:\n(a) a record of any evidence given under the order;\n(b) any document produced under the order or a copy of any such\ndocument;\n(c) particulars of any thing done under the order.\n(7) Any evidence, document or thing transmitted under subsection (6) is\ntaken to have been given, produced or done (as the case requires) in\nthe course of the arbitral proceedings.\nNote There is no equivalent to this section in the Model Law.\n","sortOrder":50},{"sectionNumber":"27C","sectionType":"section","heading":"Consolidation of arbitral proceedings","content":"27C Consolidation of arbitral proceedings\n(1) Unless otherwise agreed by the parties, a party to arbitral proceedings\nmay apply to the arbitral tribunal for an order under this section in\nrelation to those proceedings and other arbitral proceedings (whether\nbefore that tribunal or any other tribunal) on the ground that—\n(a) a common question of law or fact arises in all those proceedings;\nor\n(b) the rights to relief claimed in all those proceedings are in respect\nof, or arise out of, the same transaction or series of transactions;\nor\n(c) for some other reason specified in the application, it is desirable\nthat an order be made under this section.\n(2) In this section, 2 or more arbitral proceedings that are the subject of\nan application under subsection (1) are called the\nrelated proceedings.\n\nPart 5 Conduct of arbitral proceedings\nSection 27C\npage 36 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(3) The following orders may be made under this section in relation to\nthe related proceedings:\n(a) that the proceedings be consolidated on terms specified in the\norder;\n(b) that the proceedings be heard at the same time or in a sequence\nspecified in the order;\n(c) that any of the proceedings be stayed pending the determination\nof any of the other proceedings.\n(4) If all the related proceedings are being conducted by the same\ntribunal, the tribunal may make any order under this section that it\nthinks fit in relation to those proceedings and, if an order is made, the\nproceedings must be dealt with in accordance with the order.\n(5) If 2 or more arbitral tribunals are conducting the related\nproceedings—\n(a) the tribunal that received the application must communicate the\nsubstance of the application to the other tribunals concerned;\nand\n(b) the tribunals must, as soon as practicable, deliberate jointly on\nthe application.\n(6) If the tribunals agree, after deliberation on the application, that a\nparticular order under this section should be made in relation to the\nrelated proceedings—\n(a) the tribunals are to jointly make the order; and\n(b) the related proceedings are to be dealt with in accordance with\nthe order; and\n(c) if the order is that the related proceedings be consolidated—the\narbitrator or arbitrators for the consolidated proceedings are to\nbe appointed, in accordance with section 10 and section 11, from\nthe members of the tribunals.\n\nConduct of arbitral proceedings Part 5\nSection 27C\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 37\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(7) If the tribunals are unable to make an order under subsection (6), the\nrelated proceedings are to proceed as if no application has been made\nunder subsection (1).\n(8) Before making an order under this section, the arbitral tribunal or\ntribunals concerned must take into account whether any party would,\nor might suffer substantial hardship if the order were made.\n(9) This section does not prevent the parties to related proceedings from\nagreeing to consolidate them and taking necessary steps to effect that\nconsolidation.\nNote There is no equivalent to this section in the Model Law.\n\nPart 5 Conduct of arbitral proceedings\nSection 27D\npage 38 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":51},{"sectionNumber":"27D","sectionType":"section","heading":"Power of arbitrator to act as mediator, conciliator or other","content":"27D Power of arbitrator to act as mediator, conciliator or other\nnon-arbitral intermediary\n(1) An arbitrator may act as a mediator in proceedings relating to a\ndispute between the parties to an arbitration agreement (mediation\nproceedings) if—\n(a) the arbitration agreement provides for the arbitrator to act as\nmediator in mediation proceedings (whether before or after\nproceeding to arbitration, and whether or not continuing with the\narbitration); or\n(b) each party has consented in writing to the arbitrator so acting.\n(2) An arbitrator acting as a mediator—\n(a) may communicate with the parties collectively or separately;\nand\n(b) must treat information obtained by the arbitrator from a party\nwith whom he or she communicates separately as confidential,\nunless that party otherwise agrees or unless the provisions of the\narbitration agreement relating to mediation proceedings\notherwise provide.\n(3) Mediation proceedings in relation to a dispute terminate if—\n(a) the parties to the dispute agree to terminate the proceedings; or\n(b) any party to the dispute withdraws consent to the arbitrator\nacting as mediator in the proceedings; or\n(c) the arbitrator terminates the proceedings.\n(4) An arbitrator who has acted as mediator in mediation proceedings that\nare terminated may not conduct subsequent arbitration proceedings in\nrelation to the dispute without the written consent of all the parties to\nthe arbitration given on or after the termination of the mediation\nproceedings.\n\nConduct of arbitral proceedings Part 5\nSection 27E\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 39\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(5) If the parties consent under subsection (4), no objection may be taken\nto the conduct of subsequent arbitration proceedings by the arbitrator\nsolely on the ground that he or she has acted previously as a mediator\nin accordance with this section.\n(6) If the parties do not consent under subsection (4), the arbitrator’s\nmandate is taken to have been terminated under section 14 and a\nsubstitute arbitrator is to be appointed in accordance with section 15.\n(7) If confidential information is obtained from a party during mediation\nproceedings as referred to in subsection (2) (b) and the mediation\nproceedings terminate, the arbitrator must, before conducting\nsubsequent arbitration proceedings in relation to the dispute, disclose\nto all other parties to the arbitration proceedings so much of the\ninformation as the arbitrator considers material to the arbitration\nproceedings.\n(8) In this section, a reference to a mediator includes a reference to a\nconciliator or other non-arbitral intermediary between parties.\nNote There is no equivalent to this section in the Model Law.\n","sortOrder":52},{"sectionNumber":"27E","sectionType":"section","heading":"Disclosure of confidential information","content":"27E Disclosure of confidential information\n(1) The provisions of this section apply in arbitral proceedings unless\notherwise agreed by the parties.\n(2) The parties must not disclose confidential information in relation to\nthe arbitral proceedings unless—\n(a) the disclosure is allowed under section 27F; or\n(b) the disclosure is allowed under an order made under section 27G\nand no order is in force under section 27H prohibiting that\ndisclosure; or\n(c) the disclosure is allowed under an order made under section 27I.\n\nPart 5 Conduct of arbitral proceedings\nSection 27F\npage 40 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(3) An arbitral tribunal must not disclose confidential information in\nrelation to the arbitral proceedings unless—\n(a) the disclosure is allowed under section 27F; or\n(b) the disclosure is allowed under an order made under section 27G\nand no order is in force under section 27H prohibiting that\ndisclosure; or\n(c) the disclosure is allowed under an order made under section 27I.\nNote There is no equivalent to this section in the Model Law.\n","sortOrder":53},{"sectionNumber":"27F","sectionType":"section","heading":"Circumstances in which confidential information may be","content":"27F Circumstances in which confidential information may be\ndisclosed\n(1) This section sets out the circumstances in which confidential\ninformation in relation to arbitral proceedings may be disclosed by—\n(a) a party; or\n(b) an arbitral tribunal.\n(2) The information may be disclosed with the consent of all the parties\nto the arbitral proceedings.\n(3) The information may be disclosed to a professional or other adviser\nof any of the parties.\n(4) The information may be disclosed if it is necessary to ensure that a\nparty has a reasonable opportunity to present the party’s case and the\ndisclosure is no more than reasonable for that purpose.\n(5) The information may be disclosed if it is necessary for the\nestablishment or protection of a party’s legal rights in relation to a\nthird-party and the disclosure is no more than reasonable for that\npurpose.\n(6) The information may be disclosed if it is necessary for the purpose of\nenforcing an arbitral award and the disclosure is no more than\nreasonable for that purpose.\n\nConduct of arbitral proceedings Part 5\nSection 27G\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 41\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(7) The information may be disclosed if it is necessary for this Act and\nthe disclosure is no more than reasonable for that purpose.\n(8) The information may be disclosed if the disclosure is in accordance\nwith an order made or a subpoena issued by a court.\n(9) The information may be disclosed if the disclosure is authorised or\nrequired by a relevant law or required by a competent regulatory\nbody, and the person making the disclosure gives written details of\nthe disclosure (including an explanation of the reasons for the\ndisclosure) to—\n(a) if the person is a party—the other parties and the arbitral\ntribunal; and\n(b) if the arbitral tribunal is making the disclosure—all the parties.\n(10) In this section:\nrelevant law means—\n(a) a law of the Territory (other than this Act); and\n(b) a law of the Commonwealth; and\n(c) a law of a State or another Territory.\nNote There is no equivalent to this section in the Model Law.\n","sortOrder":54},{"sectionNumber":"27G","sectionType":"section","heading":"Arbitral tribunal may allow disclosure of confidential","content":"27G Arbitral tribunal may allow disclosure of confidential\ninformation in certain circumstances\n(1) An arbitral tribunal may make an order allowing a party to arbitral\nproceedings to disclose confidential information in relation to the\nproceedings in circumstances other than those mentioned in\nsection 27F.\n(2) An order under subsection (1) may only be made at the request of 1 of\nthe parties and after giving each of the parties the opportunity to be\nheard.\nNote There is no equivalent to this section in the Model Law.\n\nPart 5 Conduct of arbitral proceedings\nSection 27H\npage 42 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":55},{"sectionNumber":"27H","sectionType":"section","heading":"Court may prohibit disclosure of confidential information","content":"27H Court may prohibit disclosure of confidential information\nin certain circumstances\n(1) The court may make an order prohibiting a party from disclosing\nconfidential information in relation to the arbitral proceedings if the\ncourt is satisfied, in the circumstances of the particular case, that—\n(a) the public interest in preserving the confidentiality of arbitral\nproceedings is not outweighed by other considerations that\nrender it desirable in the public interest for the confidential\ninformation to be disclosed; and\n(b) the disclosure is no more than reasonable for that purpose.\n(2) An order under subsection (1) may only be made on the application\nof a party to the arbitral proceedings and after giving each of the\nparties to the arbitral proceedings the opportunity to be heard.\n(3) A party may only apply for an order under subsection (1) if the\narbitral tribunal has made an order under section 27G (1) allowing\ndisclosure of the information.\n(4) The court may order that the confidential information not be disclosed\npending the outcome of the application under subsection (2).\n(5) An order of the court under this section that is made within the limits\nof the authority of the court is final.\nNote There is no equivalent to this section in the Model Law.\n\nConduct of arbitral proceedings Part 5\nSection 27I\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 43\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":56},{"sectionNumber":"27I","sectionType":"section","heading":"Court may allow disclosure of confidential information in","content":"27I Court may allow disclosure of confidential information in\ncertain circumstances\n(1) The court may make an order allowing a party to disclose confidential\ninformation in relation to the arbitral proceedings in circumstances\nother than those mentioned in section 27F if the court is satisfied, in\nthe circumstances of the particular case, that—\n(a) the public interest in preserving the confidentiality of arbitral\nproceedings is outweighed by other considerations that render it\ndesirable in the public interest for the confidential information\nto be disclosed; and\n(b) the disclosure is no more than reasonable for that purpose.\n(2) An order under subsection (1) may only be made on the application\nof a person who is or was a party to the arbitral proceedings and after\ngiving each person who is or was a party to the arbitral proceedings\nthe opportunity to be heard.\n(3) A party to arbitral proceedings may only apply for an order under\nsubsection (1) if—\n(a) the mandate of the arbitral tribunal has been terminated under\nsection 32; or\n(b) a request by the party to the arbitral tribunal to make an order\nunder section 27G has been refused.\n(4) An order of the court under this section that is made within the limits\nof the authority of the court is final.\nNote There is no equivalent to this section in the Model Law.\n\n","sortOrder":57},{"sectionNumber":"Part 5","sectionType":"part","heading":"Conduct of arbitral proceedings","content":"Part 5 Conduct of arbitral proceedings\nSection 27J\npage 44 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":58},{"sectionNumber":"27J","sectionType":"section","heading":"Determination of preliminary point of law by court","content":"27J Determination of preliminary point of law by court\n(1) Unless otherwise agreed by the parties, on an application to the court\nmade by any of the parties to an arbitration agreement the court has\njurisdiction to determine any question of law arising in the course of\nthe arbitration.\n(2) An application under this section may be made by a party only with\nthe consent of—\n(a) an arbitrator who has entered on the reference; or\n(b) all the other parties;\nand with the leave of the court.\nNote There is no equivalent to this section in the Model Law.\n\nMaking of award and termination of proceedings Part 6\nSection 28\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 45\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nPart 6 Making of award and termination\nof proceedings\n","sortOrder":59},{"sectionNumber":"28","sectionType":"section","heading":"Rules applicable to substance of dispute","content":"28 Rules applicable to substance of dispute\n(Model Law art 28)\n(1) The arbitral tribunal must decide the dispute in accordance with such\nrules of law as are chosen by the parties as applicable to the substance\nof the dispute.\n(2) Any designation of the law or legal system of a given State or\nTerritory must be construed, unless otherwise expressed, as directly\nreferring to the substantive law of that State or Territory and not to its\nconflict of laws rules.\n(3) Failing any designation by the parties, the arbitral tribunal must apply\nthe law determined by the conflict of laws rules which it considers\napplicable.\n(4) The arbitral tribunal must decide the dispute, if the parties so agree,\nin accordance with such other considerations as are agreed to by the\nparties.\n(5) In all cases, the arbitral tribunal must decide in accordance with the\nterms of the contract and must take into account the usages of the\ntrade applicable to the transaction.\nNote This section (other than s (4)) is substantially the same as the Model Law,\nart 28.\n","sortOrder":60},{"sectionNumber":"29","sectionType":"section","heading":"Decision-making by panel of arbitrators","content":"29 Decision-making by panel of arbitrators\n(Model Law art 29)\n(1) In arbitral proceedings with more than 1 arbitrator, any decision of\nthe arbitral tribunal must be made, unless otherwise agreed by the\nparties, by a majority of all its members.\n(2) However, questions of procedure may be decided by a presiding\narbitrator, if so authorised by the parties or all members of the arbitral\ntribunal.\n\nPart 6 Making of award and termination of proceedings\nSection 30\npage 46 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":61},{"sectionNumber":"30","sectionType":"section","heading":"Settlement","content":"30 Settlement\n(Model Law art 30)\n(1) If, during arbitral proceedings, the parties settle the dispute, the\narbitral tribunal must terminate the proceedings and, if requested by\nthe parties and not objected to by the arbitral tribunal, record the\nsettlement in the form of an arbitral award on agreed terms.\n(2) An award on agreed terms is to be made in accordance with section 31\nand must state that it is an award.\n(3) Such an award has the same status and effect as any other award on\nthe merits of the case.\n","sortOrder":62},{"sectionNumber":"31","sectionType":"section","heading":"Form and contents of award","content":"31 Form and contents of award\n(Model Law art 31)\n(1) The award must be made in writing and must be signed by the\narbitrator or arbitrators.\n(2) In arbitral proceedings with more than 1 arbitrator, the signatures of\nthe majority of all members of the arbitral tribunal suffices, provided\nthat the reason for any omitted signature is stated.\n(3) The award must state the reasons upon which it is based, unless the\nparties have agreed that no reasons are to be given or the award is an\naward on agreed terms under section 30.\n(4) The award must state its date and the place of arbitration as\ndetermined in accordance with section 20.\n(5) The award is taken to have been made at the place stated in the award\nin accordance with subsection (4).\n(6) After the award is made, a copy signed by the arbitrators in\naccordance with subsection (1) must be delivered to each party.\n\nMaking of award and termination of proceedings Part 6\nSection 32\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 47\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":63},{"sectionNumber":"32","sectionType":"section","heading":"Termination of proceedings","content":"32 Termination of proceedings\n(Model Law art 32)\n(1) The arbitral proceedings are terminated by the final award or by an\norder of the arbitral tribunal in accordance with subsection (2).\n(2) The arbitral tribunal is to issue an order for the termination of the\narbitral proceedings when—\n(a) the claimant withdraws his or her claim, unless the respondent\nobjects and the arbitral tribunal recognises a legitimate interest\non the respondent’s part in obtaining a final settlement of the\ndispute; or\n(b) the parties agree on the termination of the proceedings; or\n(c) the arbitral tribunal finds that the continuation of the\nproceedings has for any other reason become unnecessary or\nimpossible; or\n(d) the arbitral tribunal makes an award under section 25 (2) (a)\ndismissing the claim.\n(3) The mandate of the arbitral tribunal terminates with the termination\nof the arbitral proceedings, subject to section 33 and section 34 (4).\n","sortOrder":64},{"sectionNumber":"33","sectionType":"section","heading":"Correction and interpretation of award, and making","content":"33 Correction and interpretation of award, and making\nadditional award\n(Model Law art 33)\n(1) Within 30 days of receipt of the award, unless another period of time\nhas been agreed on by the parties—\n(a) a party, with notice to the other party, may request the arbitral\ntribunal to correct in the award any errors in computation, any\nclerical or typographical errors or any errors of similar nature;\nand\n(b) if so agreed by the parties, a party, with notice to the other party,\nmay request the arbitral tribunal to give an interpretation of a\nspecific point or part of the award.\n\nPart 6 Making of award and termination of proceedings\nSection 33A\npage 48 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(2) If the arbitral tribunal considers a request under subsection (1) to be\njustified, it must make the correction or give the interpretation within\n30 days of receipt of the request.\n(3) The interpretation forms part of the award.\n(4) The arbitral tribunal may correct any error of the type referred to in\nsubsection (1) (a) on its own initiative within 30 days of the date of\nthe award.\n(5) Unless otherwise agreed by the parties, a party, with notice to the\nother party, may request, within 30 days of receipt of the award, the\narbitral tribunal to make an additional award as to claims presented\nin the arbitral proceedings but omitted from the award.\n(6) If the arbitral tribunal considers the request to be justified, it must\nmake the additional award within 60 days.\n(7) The arbitral tribunal may extend, if necessary, the period of time\nwithin which it may make a correction, interpretation or an additional\naward under subsection (2) or (5).\n(8) Section 31 applies to a correction or interpretation of the award or to\nan additional award.\n","sortOrder":65},{"sectionNumber":"33A","sectionType":"section","heading":"Specific performance","content":"33A Specific performance\nUnless otherwise agreed by the parties, the arbitrator has the power\nto make an award ordering specific performance of any contract if the\ncourt would have power to order specific performance of that\ncontract.\nNote There is no equivalent to this section in the Model Law.\n\nMaking of award and termination of proceedings Part 6\nSection 33B\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 49\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":66},{"sectionNumber":"33B","sectionType":"section","heading":"Costs","content":"33B Costs\n(1) Unless otherwise agreed by the parties, the costs of an arbitration\n(including the fees and expenses of the arbitrator or arbitrators) are to\nbe in the discretion of the arbitral tribunal.\n(2) Unless otherwise agreed by the parties, the arbitral tribunal may direct\nthat the costs of an arbitration, or of any part of the arbitral\nproceedings, are to be limited to a specified amount.\n(3) A direction under subsection (2) may be varied at any stage, but this\nmust be done sufficiently in advance of the incurring of costs to which\nit relates, or the taking of any steps in the proceedings which may be\naffected by it, for the limit to be taken into account.\n(4) The arbitral tribunal may, in making an award—\n(a) direct to whom, by whom, and in what manner, the whole or any\npart of the costs that it awards are to be paid; and\n(b) tax or settle the amount of costs to be paid or any part of those\ncosts; and\n(c) award costs to be taxed or settled as between party and party or\nas between legal practitioner and client.\n(5) Any costs of an arbitration (other than the fees or expenses of an\narbitrator) that are directed to be paid by an award are, to the extent\nthat they have not been taxed or settled by the arbitral tribunal, to be\nassessed in accordance with section 33C.\n(6) If no provision is made by an award with respect to the costs of the\narbitration, a party may, within 14 days after receiving the award,\napply to the arbitral tribunal for directions as to the payment of those\ncosts.\n\nPart 6 Making of award and termination of proceedings\nSection 33C\npage 50 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(7) The arbitral tribunal must, after hearing any party who wishes to be\nheard, amend the award by adding to it such directions as the arbitral\ntribunal thinks proper with respect to the payment of the costs of the\narbitration.\nNote There is no equivalent to this section in the Model Law.\n33C Application of Legal Profession Act 2006\nFor section 33B (5), the costs of an arbitration are to be assessed in\naccordance with the Legal Profession Act 2006, division 3.2.7.\nNote There is no equivalent to this section in the Model Law.\n","sortOrder":67},{"sectionNumber":"33D","sectionType":"section","heading":"Costs of abortive arbitration","content":"33D Costs of abortive arbitration\n(1) Unless otherwise agreed in writing by the parties, if an arbitration is\ncommenced but for any reason fails, the court may, on the application\nof a party or the arbitral tribunal made within 6 months after the\nfailure of the arbitration, make such orders in relation to the costs of\nthe arbitration as it thinks just.\n(2) For the purposes of this section, an arbitration is taken to have failed\nif—\n(a) a final award is not made by the arbitral tribunal before the\narbitration terminates; or\n(b) an award made is wholly set aside by the court.\n(3) If the failed arbitration is a related proceedings (within the meaning\nof section 27C), the court may stay proceedings on the application\nunder subsection (1) pending the determination of the other\narbitration proceedings to which the failed arbitration is related.\nNote There is no equivalent to this section in the Model Law.\n\nMaking of award and termination of proceedings Part 6\nSection 33E\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 51\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":68},{"sectionNumber":"33E","sectionType":"section","heading":"Interest up to making of award","content":"33E Interest up to making of award\n(1) Unless otherwise agreed by the parties, where an arbitral tribunal\nmakes an award for the payment of money (whether on a claim for a\nliquidated or an unliquidated amount), the arbitral tribunal may\ninclude in the sum for which the award is made interest, at such\nreasonable rate as the arbitral tribunal determines—\n(a) on the whole or any part of the money; and\n(b) for the whole or any part of the period between the date on which\nthe cause of action arose and the date on which the award is\nmade.\n(2) Subsection (1) does not—\n(a) authorise the awarding of interest on interest awarded under this\nsection; or\n(b) apply in relation to any amount on which interest is payable as\nof right whether because of an agreement or otherwise; or\n(c) affect the damages recoverable for the dishonour of a bill of\nexchange.\nNote There is no equivalent to this section in the Model Law.\n","sortOrder":69},{"sectionNumber":"33F","sectionType":"section","heading":"Interest on debt under award","content":"33F Interest on debt under award\n(1) This section applies if—\n(a) an arbitral tribunal makes an award for the payment of an\namount of money; and\n(b) under the award, the amount is to be paid by a particular day (the\ndue date);\nunless otherwise agreed by the parties.\n(2) The arbitral tribunal may direct that interest, including compound\ninterest, is payable if the amount is not paid on or before the due date.\n\n","sortOrder":70},{"sectionNumber":"Part 6","sectionType":"part","heading":"Making of award and termination of proceedings","content":"Part 6 Making of award and termination of proceedings\nSection 33F\npage 52 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(3) The arbitral tribunal may set a reasonable rate of interest.\n(4) The interest is payable—\n(a) from the day immediately following the due date; and\n(b) on so much of the money as remains unpaid.\n(5) The direction is taken to form part of the award.\nNote There is no equivalent to this section in the Model Law.\n\nRecourse against award Part 7\nSection 34\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 53\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nPart 7 Recourse against award\n","sortOrder":71},{"sectionNumber":"34","sectionType":"section","heading":"Application for setting aside as exclusive recourse","content":"34 Application for setting aside as exclusive recourse\nagainst arbitral award\n(Model Law art 34)\n(1) Recourse to the court against an arbitral award may be made only by\nan application for setting aside in accordance with subsections (2) and\n(3) or by an appeal under section 34A.\nNote The Model Law does not provide for appeals as under s 34A.\n(2) An arbitral award may be set aside by the court only if—\n(a) the party making the application furnishes proof that—\n(i) a party to the arbitration agreement referred to in section 7\nwas under some incapacity, or the arbitration agreement is\nnot valid under the law to which the parties have subjected\nit or, failing any indication in it, under the law of the\nTerritory; or\n(ii) the party making the application was not given proper\nnotice of the appointment of an arbitral tribunal or of the\narbitral proceedings or was otherwise unable to present the\nparty’s case; or\n(iii) the award deals with a dispute not contemplated by or not\nfalling within the terms of the submission to arbitration, or\ncontains decisions on matters beyond the scope of the\nsubmission to arbitration, provided that, if the decisions on\nmatters submitted to arbitration can be separated from\nthose not so submitted, only that part of the award which\ncontains decisions on matters not submitted to arbitration\nmay be set aside; or\n\nPart 7 Recourse against award\nSection 34\npage 54 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(iv) the composition of the arbitral tribunal or the arbitral\nprocedure was not in accordance with the agreement of the\nparties, unless such agreement was in conflict with a\nprovision of this Act from which the parties cannot\nderogate, or, failing such agreement, was not in accordance\nwith this Act; or\n(b) the court finds that—\n(i) the subject-matter of the dispute is not capable of\nsettlement by arbitration under the law of the Territory; or\n(ii) the award is in conflict with the public policy of the\nTerritory.\n(3) An application for setting aside may not be made after 3 months have\nelapsed from the date on which the party making that application had\nreceived the award or, if a request had been made under section 33,\nfrom the date on which that request had been disposed of by the\narbitral tribunal.\n(4) The court, when asked to set aside an award, may, where appropriate\nand so requested by a party, suspend the setting aside of proceedings\nfor a period of time determined by it in order to give the arbitral\ntribunal an opportunity to resume the arbitral proceedings or to take\nsuch other action as in the arbitral tribunal’s opinion will eliminate\nthe grounds for setting aside.\n\nRecourse against award Part 7\nSection 34A\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 55\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":72},{"sectionNumber":"34A","sectionType":"section","heading":"Appeals against awards","content":"34A Appeals against awards\n(1) An appeal lies to the court on a question of law arising out of an award\nif—\n(a) the parties agree, before the end of the appeal period referred to\nin subsection (6), that an appeal may be made under this section;\nand\n(b) the court grants leave.\n(2) An appeal under this section may be brought by any of the parties to\nan arbitration agreement.\n(3) The court must not grant leave unless it is satisfied—\n(a) the determination of the question will substantially affect the\nrights of 1 or more of the parties; and\n(b) the question is one which the arbitral tribunal was asked to\ndetermine; and\n(c) on the basis of the findings of fact in the award—\n(i) the decision of the tribunal on the question is obviously\nwrong; or\n(ii) the question is one of general public importance and the\ndecision of the tribunal is at least open to serious doubt;\nand\n(d) despite the agreement of the parties to resolve the matter by\narbitration, it is just and proper in all the circumstances for the\ncourt to determine the question.\n(4) An application for leave to appeal must identify the question of law\nto be determined and state the grounds on which it is alleged that\nleave to appeal should be granted.\n(5) The court is to determine an application for leave to appeal without a\nhearing unless it appears to the court that a hearing is required.\n\n","sortOrder":73},{"sectionNumber":"Part 7","sectionType":"part","heading":"Recourse against award","content":"Part 7 Recourse against award\nSection 34A\npage 56 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(6) An appeal may not be made under this section after 3 months have\nelapsed from the date on which the party making the appeal received\nthe award or, if a request had been made under section 33, from the\ndate on which that request had been disposed of by the arbitral\ntribunal (in this section referred to as the appeal period).\n(7) On the determination of an appeal under this section the court may by\norder—\n(a) confirm the award; or\n(b) vary the award; or\n(c) remit the award, together with the court’s opinion on the\nquestion of law which was the subject of the appeal, to the\narbitrator for reconsideration or, where a new arbitrator has been\nappointed, to that arbitrator for consideration; or\n(d) set aside the award in whole or in part.\n(8) The court must not exercise its power to set aside an award, in whole\nor in part, unless it is satisfied that it would be inappropriate to remit\nthe matters in question to the arbitral tribunal for reconsideration.\n(9) Where the award is remitted under subsection (7) (c) the arbitrator\nmust, unless the order otherwise directs, make the award within\n3 months after the date of the order.\n(10) The court may make any leave which it grants under\nsubsection (3) (c) subject to the applicant complying with any\nconditions it considers appropriate.\n(11) Where the award of an arbitrator is varied on an appeal under this\nsection, the award as varied has effect (except for this section) as if it\nwere the award of the arbitrator.\nNote There is no equivalent to this section in the Model Law.\n\nRecognition and enforcement of awards Part 8\nSection 35\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 57\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nPart 8 Recognition and enforcement of\nawards\n","sortOrder":74},{"sectionNumber":"35","sectionType":"section","heading":"Recognition and enforcement","content":"35 Recognition and enforcement\n(Model Law art 35)\n(1) An arbitral award, irrespective of the State or other Territory in which\nit was made, is to be recognised in the ACT as binding and, on\napplication in writing to the court, is to be enforced subject to the\nprovisions of this section and section 36.\n(2) The party relying on an award or applying for its enforcement must\nsupply the original award or a copy of the original award.\n(3) If the award is not made in English, the court may request the party\nto supply a translation of it into English.\nNote So much of the Model Law, art 35 (2) as provides for the translation of\nan award that is not in the official language of the enforcing State has\nbeen modified.\n","sortOrder":75},{"sectionNumber":"36","sectionType":"section","heading":"Grounds for refusing recognition or enforcement","content":"36 Grounds for refusing recognition or enforcement\n(Model Law art 36)\n(1) Recognition or enforcement of an arbitral award, irrespective of the\nState or Territory in which it was made, may be refused only—\n(a) at the request of the party against whom it is invoked, if that\nparty furnishes to the court proof that—\n(i) a party to the arbitration agreement was under some\nincapacity, or the arbitration agreement is not valid under\nthe law to which the parties have subjected it or, failing any\nindication in it, under the law of the State or Territory\nwhere the award was made; or\n(ii) the party against whom the award is invoked was not given\nproper notice of the appointment of an arbitrator or of the\narbitral proceedings or was otherwise unable to present the\nparty’s case; or\n\n","sortOrder":76},{"sectionNumber":"Part 8","sectionType":"part","heading":"Recognition and enforcement of awards","content":"Part 8 Recognition and enforcement of awards\nSection 36\npage 58 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(iii) the award deals with a dispute not contemplated by or not\nfalling within the terms of the submission to arbitration, or\nit contains decisions on matters beyond the scope of the\nsubmission to arbitration, provided that, if the decisions on\nmatters submitted to arbitration can be separated from\nthose not so submitted, that part of the award which\ncontains decisions on matters submitted to arbitration may\nbe recognised and enforced; or\n(iv) the composition of the arbitral tribunal or the arbitral\nprocedure was not in accordance with the agreement of the\nparties or, failing such agreement, was not in accordance\nwith the law of the State or Territory where the arbitration\ntook place; or\n(v) the award has not yet become binding on the parties or has\nbeen set aside or suspended by a court of the State or\nTerritory in which, or under the law of which, that award\nwas made; or\n(b) if the court finds that—\n(i) the subject-matter of the dispute is not capable of\nsettlement by arbitration under the law of the Territory; or\n(ii) the recognition or enforcement of the award would be\ncontrary to the public policy of the Territory.\n(2) If an application for setting aside or suspension of an award has been\nmade to a court referred to in subsection (1) (a) (v), the court may, if\nit considers it proper, adjourn its decision and may also, on the\napplication of the party claiming recognition or enforcement of the\naward, order the party to provide appropriate security.\n\nMiscellaneous Part 9\nSection 37\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 59\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nPart 9 Miscellaneous\n","sortOrder":77},{"sectionNumber":"37","sectionType":"section","heading":"Death of party","content":"37 Death of party\n(1) Unless otherwise agreed by the parties, if a party to an arbitration\nagreement dies the agreement is not discharged (either as respects the\ndeceased or any other party) and the authority of an arbitral tribunal\nis not revoked by the death but that agreement is enforceable by or\nagainst the personal representative of the deceased.\n(2) Nothing in subsection (1) affects the operation of any enactment or\nrule of law by virtue of which a right of action is extinguished by the\ndeath of a person.\nNote There is no equivalent to this section in the Model Law.\n","sortOrder":78},{"sectionNumber":"38","sectionType":"section","heading":"Interpleader","content":"38 Interpleader\nWhere relief by way of interpleader is granted in any court and it\nappears to that court that the claims in question are matters to which\nan arbitration agreement (to which the claimants are parties) applies,\nthe court must, unless it is satisfied that there is sufficient reason why\nthe matters should not be referred to arbitration in accordance with\nthe agreement, make an order directing the issue between the\nclaimants to be determined in accordance with the agreement.\nNote There is no equivalent to this section in the Model Law.\n","sortOrder":79},{"sectionNumber":"39","sectionType":"section","heading":"Immunity","content":"39 Immunity\n(1) An arbitrator is not liable for anything done or omitted to be done in\ngood faith in his or her capacity as arbitrator.\n(2) An entity that appoints, or fails to appoint, a person as arbitrator is\nnot liable in relation to the appointment, failure or refusal if done in\ngood faith.\n\n","sortOrder":80},{"sectionNumber":"Part 9","sectionType":"part","heading":"Miscellaneous","content":"Part 9 Miscellaneous\nSection 40\npage 60 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(3) In this section, a reference to an arbitrator includes an arbitrator\nacting as a mediator, conciliator or other non-arbitral intermediary\nunder section 27D.\nNote There is no equivalent to this section in the Model Law.\n","sortOrder":81},{"sectionNumber":"40","sectionType":"section","heading":"Court rules","content":"40 Court rules\n(1) Rules of court may be made under the Court Procedures Act 2004 for\ncarrying the purposes of this Act into effect and, in particular, for or\nwith respect to the following:\n(a) applications to a court under this Act and the costs of such\napplications;\n(b) the payment or bringing of money into and out of a court in\nsatisfaction of claims to which arbitration agreements apply and\nthe investment of that money;\n(c) the examination of witnesses before a court or before any other\nperson and the issue of commissions or requests for the\nexamination of witnesses outside the Territory, for an\narbitration;\n(d) offers of compromise in relation to claims to which arbitration\nagreements apply;\n(e) any other matter or thing for or with respect to which rules are\nby this Act authorised or required to be made by a court.\n(2) Subsection (1) does not limit the rule-making powers conferred on a\ncourt by any other Act.\nNote There is no equivalent to this section in the Model Law.\n\nMiscellaneous Part 9\nSection 41\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 61\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":82},{"sectionNumber":"41","sectionType":"section","heading":"Regulation-making power","content":"41 Regulation-making power\nThe Executive may make regulations for this Act.\nNote 1 A regulation must be notified, and presented to the Legislative Assembly,\nunder the Legislation Act.\nNote 2 There is no equivalent to this section in the Model Law.\n\nDictionary\npage 62 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nDictionary\n(see s 1E)\nNote 1 The Legislation Act contains definitions and other provisions relevant to\nthis Act.\nNote 2 For example, the Legislation Act, dict, pt 1, defines the following terms:\n• exercise\n• function\n• oath\n• person\n• Supreme Court\n• the Territory.\nNote 3 The Model Law does not include definitions of the following terms:\n• arbitration agreement\n• confidential information\n• disclose\n• domestic commercial arbitration\n• exercise\n• function\n• interim measure\n• Model Law\n• party\n• the court.\narbitral tribunal means a sole arbitrator or a panel of arbitrators.\narbitration means any domestic commercial arbitration whether or\nnot administered by a permanent arbitral institution.\narbitration agreement—see section 7 (1).\n\nDictionary\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 63\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nconfidential information, in relation to arbitral proceedings, means\ninformation that relates to the arbitral proceedings or to an award\nmade in those proceedings and includes the following:\n(a) the statement of claim, statement of defence and all other\npleadings, submissions, statements or other information\nsupplied to the arbitral tribunal by a party;\n(b) any information supplied by a party to another party in\ncompliance with a direction of the arbitral tribunal;\n(c) any evidence (whether documentary or otherwise) supplied to\nthe arbitral tribunal;\n(d) any notes made by the arbitral tribunal of oral evidence or\nsubmissions given before the arbitral tribunal;\n(e) any transcript of oral evidence or submissions given before the\narbitral tribunal;\n(f) any rulings of the arbitral tribunal;\n(g) any award of the arbitral tribunal.\ndisclose, in relation to confidential information, includes publishing\nor communicating or otherwise supplying the confidential\ninformation.\ndomestic, in relation to an arbitration—see section 1 (3).\ninterim measure—see section 17.\nModel Law means the UNCITRAL Model Law on International\nCommercial Arbitration (as adopted by the United Nations\nCommission on International Trade Law on 21 June 1985, and as\namended by the United Nations Commission on International Trade\nLaw on 7 July 2006).\n\nDictionary\npage 64 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nparty means a party to an arbitration agreement and includes—\n(a) any person claiming through or under a party to the arbitration\nagreement; and\n(b) in any case where an arbitration does not involve all of the\nparties to the arbitration agreement, those parties to the\narbitration agreement who are parties to the arbitration.\nthe court means, subject to section 6 (2), the Supreme Court.\n\nEndnotes\nAbout the endnotes 1\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 65\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nEndnotes\n1 About the endnotes\nAmending and modifying laws are annotated in the legislation history and the\namendment history. Current modifications are not included in the republished law\nbut are set out in the endnotes.\nNot all editorial amendments made under the Legislation Act 2001, part 11.3 are\nannotated in the amendment history. Full details of any amendments can be\nobtained from the Parliamentary Counsel’s Office.\nUncommenced amending laws are not included in the republished law. The details\nof these laws are underlined in the legislation history. Uncommenced expiries are\nunderlined in the legislation history and amendment history.\nIf all the provisions of the law have been renumbered, a table of renumbered\nprovisions gives details of previous and current numbering.\nThe endnotes also include a table of earlier republications.\n","sortOrder":83},{"sectionNumber":"2","sectionType":"section","heading":"Abbreviation key","content":"2 Abbreviation key\nA = Act NI = Notifiable instrument\nAF = Approved form o = order\nam = amended om = omitted/repealed\namdt = amendment ord = ordinance\nAR = Assembly resolution orig = original\nch = chapter par = paragraph/subparagraph\nCN = Commencement notice pres = present\ndef = definition prev = previous\nDI = Disallowable instrument (prev...) = previously\ndict = dictionary pt = part\ndisallowed = disallowed by the Legislative r = rule/subrule\nAssembly reloc = relocated\ndiv = division renum = renumbered\nexp = expires/expired R[X] = Republication No\nGaz = gazette RI = reissue\nhdg = heading s = section/subsection\nIA = Interpretation Act 1967 sch = schedule\nins = inserted/added sdiv = subdivision\nLA = Legislation Act 2001 SL = Subordinate law\nLR = legislation register sub = substituted\nLRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced\nmod = modified/modification or to be expired\n\nEndnotes\n3 Legislation history\npage 66 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":84},{"sectionNumber":"3","sectionType":"section","heading":"Legislation history","content":"3 Legislation history\nCommercial Arbitration Act 2017 A2017-7\nnotified LR 4 April 2017\ns 1A, s 1B commenced 4 April 2017 (LA s 75 (1))\nremainder commenced 1 July 2017 (s 1B and CN2017-1)\nas amended by\nRed Tape Reduction Legislation Amendment Act 2018 A2018-33\nsch 1 pt 1.4\nnotified LR 25 September 2018\ns 1, s 2 commenced 25 September 2018 (LA s 75 (1))\nsch 1 pt 1.4 commenced 23 October 2018 (s 2 (4))\n\nEndnotes\nAmendment history 4\nR3\n02/07/19\nCommercial Arbitration Act 2017\nEffective: 02/07/19\npage 67\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":85},{"sectionNumber":"4","sectionType":"section","heading":"Amendment history","content":"4 Amendment history\nCommencement\ns 1B om LA s 89 (4)\nDefinition and form of arbitration agreement\ns 7 am A2018-33 amdt 1.9\nRepeal and consequential amendments\npt 10 hdg om LA s 89 (3)\nLegislation repealed\ns 42 om LA s 89 (3)\nLegislation amended—sch 1\ns 43 om LA s 89 (3)\nTransitional\npt 20 hdg exp 1 July 2019 (s 203)\nDefinitions—pt 20\ns 200 exp 1 July 2019 (s 203)\nArbitration under repealed Act\ns 201 exp 1 July 2019 (s 203)\nTransitional regulations\ns 202 exp 1 July 2019 (s 203)\nExpiry—pt 20\ns 203 exp 1 July 2019 (s 203)\nConsequential amendments\nsch 1 om LA s 89 (3)\n\nEndnotes\n5 Earlier republications\npage 68 Commercial Arbitration Act 2017\nEffective: 02/07/19\nR3\n02/07/19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n","sortOrder":86},{"sectionNumber":"5","sectionType":"section","heading":"Earlier republications","content":"5 Earlier republications\nSome earlier republications were not numbered. The number in column 1 refers to\nthe publication order.\nSince 12 September 2001 every authorised republication has been published in\nelectronic pdf format on the ACT legislation register. A selection of authorised\nrepublications have also been published in printed format. These republications are\nmarked with an asterisk (*) in column 1. Electronic and printed versions of an\nauthorised republication are identical.\nRepublication\nNo and date\nEffective Last\namendment\nmade by\nRepublication\nfor\nR1\n1 July 2017\n","sortOrder":87},{"sectionNumber":"1","sectionType":"section","heading":"July 2017–","content":"1 July 2017–\n22 Oct 2018\nnot amended new Act\nR2\n23 Oct 2018\n","sortOrder":88},{"sectionNumber":"23","sectionType":"section","heading":"Oct 2018–","content":"23 Oct 2018–\n30 June 2019\nA2018-33 amendments by\nA2018-33\n","sortOrder":89},{"sectionNumber":"6","sectionType":"section","heading":"Expired transitional or validating provisions","content":"6 Expired transitional or validating provisions\nThis Act may be affected by transitional or validating provisions that have expired.\nThe expiry does not affect any continuing operation of the provisions (see\nLegislation Act 2001, s 88 (1)).\nExpired provisions are removed from the republished law when the expiry takes\neffect and are listed in the amendment history using the abbreviation ‘exp’ followed\nby the date of the expiry.\nTo find the expired provisions see the version of this Act before the expiry took\neffect. The ACT legislation register has point-in-time versions of this Act.\n\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n© Australian Capital Territory 2019","sortOrder":90}],"analysis":{"kimi_summary":{"_metrics":{"completionTokens":769},"content_quality":"ok","complexity_score":6,"scope_assessment":{"changed":false,"description":"The legislation remains focused on its original purpose: providing a comprehensive framework for domestic commercial arbitration in the ACT. While it includes substantial additional provisions beyond the UNCITRAL Model Law (such as confidentiality, consolidation, costs, and appeals), these are ancillary mechanisms supporting the core arbitration function rather than scope expansion into unrelated areas."},"complexity_factors":["Extensive cross-referencing to the UNCITRAL Model Law with notes explaining deviations","Multiple conditional triggers (e.g., 'unless otherwise agreed by the parties' appears in dozens of sections)","Nested confidentiality regime with tribunal orders, court prohibitions, and court permissions — sections 27E-27I","Dual court jurisdiction (Supreme Court default, Magistrates Court by agreement) — section 6","Parallel enforcement regimes for interim measures (Part 4A Div 4) and final awards (Part 8)","Time limits scattered throughout (14, 15, 30, 60, 90 days) with exceptions","Appeal mechanism on questions of law with four cumulative threshold tests — section 34A(3)"],"plain_english_summary":"**What this Act does:**\n\nThis is the ACT's law for **domestic commercial arbitration** — a private, court-alternative way to resolve business disputes. It sets up a complete framework for how businesses can agree to have their disagreements decided by one or more independent decision-makers (arbitrators) instead of going to court.\n\n**Who it affects:**\n- **Businesses and individuals** in the ACT who agree to arbitrate their commercial disputes\n- **Arbitrators** — the people who hear and decide these disputes\n- **The ACT Supreme Court and Magistrates Court** — which have limited supervisory roles\n\n**Key features:**\n\n- **Arbitration agreements must be in writing** (including electronically) — section 7\n- **Parties choose their arbitrator(s)** — if they can't agree, the court appoints one — sections 10-11\n- **Arbitrators must be independent and impartial** — they can be challenged if there's a \"real danger of bias\" — sections 12-13\n- **Arbitrators can order interim measures** — like freezing assets or preserving evidence — Part 4A\n- **Proceedings are confidential** — with limited exceptions for things like enforcing an award or protecting legal rights — sections 27E-27I\n- **Arbitrators can act as mediators** — but need fresh consent to return to arbitration — section 27D\n- **Awards are final and binding** — courts can only set them aside on limited grounds (like procedural unfairness or public policy) — sections 34-36\n- **Parties can appeal on questions of law** — but only with agreement and court leave — section 34A\n\n**Why it matters:**\n\nArbitration offers businesses a **faster, cheaper, and private** alternative to court litigation. This Act ensures arbitrations are conducted fairly while keeping court intervention to a minimum. It closely follows the **UNCITRAL Model Law** (an international standard) but adapts it for purely domestic ACT disputes.\n\n**Notable ACT-specific additions:**\n- Consolidation of related arbitrations — section 27C\n- Detailed costs and interest provisions — sections 33B-33F\n- Specific performance orders — section 33A\n- Immunity for arbitrators — section 39"},"flash_summary":{"complexity_score":7,"scope_assessment":{"changed":true,"description":"This Act adapts the international UNCITRAL Model Law for the domestic ACT context and explicitly modifies, omits or adds provisions (Part 1A note; notes under numerous sections). Key scope changes from the Model Law in the source text include: applying the regime to domestic (not international) commercial arbitrations (s1 and Part 1A note); changing defaults such as a sole arbitrator where parties do not decide (s10(2)); omitting certain Model Law articles (for example art 11(1), arts 17B and 17C are omitted as noted in section notes); and adding ACT-specific provisions on confidentiality (s27E–s27I), consolidation of related arbitrations (s27C), tribunal mediation roles (s27D), costs of abortive arbitrations (s33D), and conditional appeals on questions of law (s34A). These changes narrow the Model Law’s international focus and expand procedural and court-interaction detail for domestic application in the ACT."},"complexity_factors":["Adoption and selective modification of the UNCITRAL Model Law with multiple listed omissions and variations (Part 1A note; notes under many sections).","Dual decision-makers with overlapping roles: broad tribunal discretion (s19, s17) alongside specified court functions and supervisory/ enforcement powers (s6, s35, s36).","Detailed interim-measures regime, including tribunal-ordered measures, requirements for grant (s17A), security and court recognition/enforcement (s17E, s17H, s17I).","Confidentiality regime with enumerated exceptions and separate tribunal and court procedures for permitting or prohibiting disclosure (s27E–s27I).","Costs regime largely in tribunal discretion with specific mechanisms for limiting costs, taxing/settling costs and court powers for abortive arbitrations (s33B–s33D, s33C).","Multiple procedural choices for parties (number of arbitrators, seat, language, rules) and fallback rules if parties do not agree (s10, s11, s19, s20, s22).","Cross-jurisdiction recognition and enforcement of awards and interim measures across Australian States/Territories with specified grounds for refusal (s17H, s35, s36).","Additional ACT-specific provisions not in the Model Law (e.g. consolidation of arbitrations s27C, tribunal acting as mediator s27D, representation by non-lawyers s24A), increasing the statute’s breadth.","Limited but detailed judicial review and appeal routes (exclusive setting-aside regime s34 plus conditional appeals on questions of law s34A) which require careful procedural timing (3-month limits in s34(3), s34A(6)).","Interplay with other legislation and court rules (application to arbitrations provided for in other Acts s1(5)–(6); rule-making under Court Procedures Act s40)."],"plain_english_summary":"### What this law does, who it affects, and how it works\n\n- What it is: The Commercial Arbitration Act 2017 sets out how commercial disputes are to be resolved by private arbitral tribunals in the Australian Capital Territory (ACT). It adapts many provisions of the UNCITRAL Model Law for application to domestic commercial arbitrations in the ACT (see Part 1A note; s1). The Act governs formation of arbitration agreements, the constitution and powers of tribunal(s), interim orders, conduct of hearings, confidentiality, costs, and how awards are challenged and enforced.\n\n- Who it affects: The Act primarily affects parties to commercial contracts who agree to arbitrate their disputes (s7), arbitrators and arbitral institutions, and the courts (which retain a defined supervisory and enforcement role under the Act) (s6, s35). It also touches third parties who may be subpoenaed or otherwise required to produce documents (s27A, s27B).\n\n- Key mechanical changes and options it creates\n  - Parties may choose to resolve commercial disputes by arbitration and must record the arbitration agreement in writing (s7). An arbitration clause in a contract or an exchange of pleadings can fulfil the writing requirement (s7(2)–(7)).\n  - Parties are largely free to design the arbitration (number of arbitrators, procedure, place, language, rules) and to authorise third parties or institutions to make procedural determinations (s10, s11(2), s19, s20, s22; s2(2)–(3)).\n  - The arbitral tribunal has broad powers to run the process, decide admissibility and weight of evidence, order examinations on oath, and issue interim measures on request (s19(3)–(5); s17). The tribunal may also appoint experts (s26) and act as a mediator if parties consent (s27D).\n  - The tribunal can grant interim measures (freeze assets, preserve evidence, security for costs, discovery, etc.) but the requesting party must satisfy substantive tests for certain measures (harm not adequately reparable, balance of harm, reasonable prospect of success) (s17; s17A). The tribunal may require security for measures and may modify or terminate them (s17E, s17D, s17G).\n  - Courts retain specific supervisory and enforcement roles: they make or decide on appointments in some circumstances (s11(3)–(6)), hear challenges to arbitrators (s13(4)), decide on termination of mandates (s14(2)), recognise and enforce interim measures and awards (s17H, s35), and have limited jurisdiction to set aside awards or hear appeals on questions of law where the parties so agree (s34, s34A). The general rule is minimal court intervention except where the Act provides (s5).\n  - Confidentiality is defined and regulated: the Act defines “confidential information” (dictionary), prohibits disclosure except in listed circumstances or by order (s27E–s27I), and gives courts the power to prohibit or allow disclosure in specified cases (s27H, s27I).\n\n- Who pays and who decides (mechanically)\n  - Costs of arbitration (including arbitrators’ fees) are generally at the discretion of the arbitral tribunal; the tribunal can direct who pays and in what manner and may limit costs (s33B(1)–(4)). If no award on costs is made, parties can apply to the tribunal for directions (s33B(6)). The court may make orders about costs of abortive arbitrations on application (s33D).\n  - A party who requests an interim measure may be held liable for costs and damages caused by the measure if it should not have been granted (s17G(1)–(2)). Courts can require security for enforcement of measures or awards (s17H(4); s36(2) power to order security where appropriate).\n  - Parties decide on many procedural choices (s19, s20, s22). The arbitral tribunal decides day-to-day procedure and evidence questions unless the parties agree otherwise (s19). Courts exercise functions specifically allocated to them by the Act (s6 lists sections for court functions).\n\n- Behavioural and compliance effects\n  - Parties who include arbitration clauses generally move resolution out of standard court pathways and into private arbitration (s8; s1C object). That shifts decision-making to selected arbitrators and reduces routine court involvement, though courts remain involved for certain supervisory and enforcement tasks (s5; s6; s35).\n  - Parties must comply with tribunal orders, procedural directions and disclosure obligations; the Act authorises tribunals to make enforceable orders (s24B; s19(6)). Non-compliance exposes a party to tribunal sanctions (peremptory orders, adverse inferences, costs orders) and to court-ordered enforcement where necessary (s25; s27B(2)–(6)).\n  - Confidentiality is the default, but the Act lists specific, limited circumstances allowing disclosure (s27F) and provides routes for tribunal or court-ordered disclosure or prohibition (s27G–s27I).\n\n- Enforcement, finality and review\n  - Awards are to be in writing, reasoned unless parties agree otherwise, and delivered to parties (s31). An award is final subject to limited recourse: applications to set aside on specified grounds (procedural invalidity, lack of jurisdiction, public policy) (s34), or an appeal on a question of law only if the parties agree and the court gives leave (s34A).\n  - An award made anywhere in Australia (any State or Territory) is recognisable and enforceable in the ACT subject to specified grounds for refusal (s35; s36).\n\n- Trade-offs, incentives and implementation points to note (source-grounded)\n  - The stated object is to facilitate fair and final resolution of commercial disputes by arbitral tribunals without unnecessary delay or expense (s1C). Achieving that depends on parties electing arbitration, tribunals exercising broad procedural discretion (s19), and tribunals and courts enforcing orders and awards (s6, s35). Those arrangements concentrate procedural control in private tribunals but preserve judicial oversight in narrowly defined areas (s5; s6).\n  - The Act gives tribunals discretion to allocate costs and to limit costs (s33B). That creates an incentive for parties to frame procedural agreement and to manage arbitrator fees and disclosure scope; it also gives tribunals tools to deter dilatory conduct (s24B; s25). The Act also makes the requester of an interim measure liable for adverse costs/damages if the measure is later found unjustified (s17G), which affects the calculus of seeking emergency relief from a tribunal.\n  - The Act expands tribunal powers beyond the Model Law in several areas relevant to practice in the ACT (see notes to various sections), for example by providing for consolidation of related arbitrations (s27C), tribunal-appointed experts and their involvement (s26), and particular confidentiality rules (s27E–s27I). Those additions change how parties will plan dispute-resolution clauses and how tribunals and courts will implement procedures.\n\nSources cited: Commercial Arbitration Act 2017 (select sections cited above), and accompanying notes in the Act that explain differences from the UNCITRAL Model Law (Part 1A note and notes under many sections)."}},"importantCases":[],"_links":{"self":"/api/acts/commercial-arbitration-act-2017","history":"/api/acts/commercial-arbitration-act-2017/history","analysis":"/api/acts/commercial-arbitration-act-2017/analysis","conflicts":"/api/acts/commercial-arbitration-act-2017/conflicts","importantCases":"/api/acts/commercial-arbitration-act-2017/important-cases","documents":"/api/acts/commercial-arbitration-act-2017/documents"}}