1FNotes

1F Notes (1) A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes. (2) In this section: note includes material enclosed in brackets in section headings. Note Some sections of this Act contain bracketed notes under their headings (eg Model Law art 1) drawing attention to equivalent or comparable (though not necessarily identical) provisions of the UNCITRAL Model Law on International Commercial Arbitration. General Provisions Part 1 Section 1 R3 02/07/19 Commercial Arbitration Act 2017 Effective: 02/07/19 page 5 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 1 General Provisions 1 Scope of application (Model Law art 1) (1) This Act applies to domestic commercial arbitrations. Note The International Arbitration Act 1974 (Cwlth) covers international commercial arbitrations and the enforcement of foreign arbitral awards. (2) The provisions of this Act, except section 8, section 9, section 17H, section 17I, section 17J, section 35 and section 36, apply only if the place of arbitration is in the ACT. (3) An arbitration is domestic if— (a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in Australia; and (b) the parties have (whether in the arbitration agreement or in any other document in writing) agreed that any dispute that has arisen or may arise between them is to be settled by arbitration; and (c) it is not an arbitration to which the Model Law (as given effect by the International Arbitration Act 1974 (Cwlth)) applies. (4) For subsection (3)— (a) if a party has more than 1 place of business, the place of business is that which has the closest relationship to the arbitration agreement; and (b) if a party does not have a place of business, reference is to be made to the party’s habitual residence. (5) This Act does not affect any other Act by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Act. Part 1 General Provisions Section 2 page 6 Commercial Arbitration Act 2017 Effective: 02/07/19 R3 02/07/19 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (6) Subject to subsection (5), this Act applies to arbitrations provided for in any other Act as if— (a) the other Act were an arbitration agreement; and (b) the arbitration were pursuant to an arbitration agreement; and (c) the parties to the dispute which, by virtue of the other Act, is referred to arbitration were the parties to the arbitration agreement; except in so far as the other Act otherwise indicates or requires. Note 1 A note to the model law states that the term ‘commercial’ should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business co-operation; carriage of goods or passengers by air, sea, rail or road. Note 2 This section differs from the Model Law to the extent necessary to apply art 1 as incorporated in this Act to domestic commercial arbitrations. Section 40 contains provisions that also relate to the application of this Act. 2 Rules of interpretation (Model Law art 2) (1) [omitted] Note This section differs from the Model Law to the extent that the definitions in art 2 (1) are set out in the dictionary to this Act. (2) Where a provision of this Act, except section 28, leaves the parties free to determine a certain issue, such freedom includes the right of the parties to authorise a third-party, including an institution, to make that determination. General Provisions Part 1 Section 2A R3 02/07/19 Commercial Arbitration Act 2017 Effective: 02/07/19 page 7 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (3) Where a provision of this Act refers to the fact that the parties have agreed or that they may agree or in any other way refers to an agreement of the parties, such agreement includes any arbitration rules referred to in that agreement. (4) Where a provision of this Act, other than section 25 (1) (a) and section 32 (2) (a), refers to a claim, it also applies to a counter-claim, and where it refers to a defence, it also applies to a defence to such counter-claim.