34Application for setting aside as exclusive recourse

34 Application for setting aside as exclusive recourse against arbitral award (Model Law art 34) (1) Recourse to the court against an arbitral award may be made only by an application for setting aside in accordance with subsections (2) and (3) or by an appeal under section 34A. Note The Model Law does not provide for appeals as under s 34A. (2) An arbitral award may be set aside by the court only if— (a) the party making the application furnishes proof that— (i) a party to the arbitration agreement referred to in section 7 was under some incapacity, or the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication in it, under the law of the Territory; or (ii) the party making the application was not given proper notice of the appointment of an arbitral tribunal or of the arbitral proceedings or was otherwise unable to present the party’s case; or (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or Part 7 Recourse against award Section 34 page 54 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 (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Act from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Act; or (b) the court finds that— (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of the Territory; or (ii) the award is in conflict with the public policy of the Territory. (3) An application for setting aside may not be made after 3 months have elapsed from the date on which the party making that application had received the award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal. (4) The court, when asked to set aside an award, may, where appropriate and so requested by a party, suspend the setting aside of proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside. Recourse against award Part 7 Section 34A R3 02/07/19 Commercial Arbitration Act 2017 Effective: 02/07/19 page 55 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au