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Arbitration in Australia
The most significant development for domestic commercial arbitration in Australia has been the 2009 decision by the Standing Committee of Attorneys-General (the national body of senior law officers in each State) to develop a new Uniform Commercial Arbitration Act based on the UNCITRAL Model Law. The objective is to ensure that domestic commercial arbitration legislation is consistent with the recently amended International Arbitration Act (Cth).

A draft proposed Bill was distributed for comment in late 2009. IAMA made a joint submission with the Chartered Institute of Arbitrators. The preparation of the final draft Bill is underway.

A landmark decision of the NSW Court of Appeal in Gordian Runoff Ltd v Westport Insurance Corp [2010] NSWCA 57 (1 April 2010) is most welcome. In overturning an application for leave to appeal and the appeal of an Award by senior arbitrators, his Honour Allsop P explained the limited circumstances in which a court should intervene on the basis of a “manifest error on the face of the award” and “strong evidence of an error of law”. Significantly the judgment found that the often criticised Victorian Court of Appeal decision in Oil Basins Limited v BHP Billiton Ltd 18 VR 246, to the effect that arbitrators had equivalent duty to provide reasons as applied to judges, was clearly wrong and should not be followed.

An additional positive decision in Victoria of AED Oil Ltd v Puffin FPSO Ltd [2010] VSCA 37 (5 March 2010) in which the Court of Appeal overruled an order refusing a stay of Court proceedings when the disputes were referable to international arbitration. The basis of refusing the stay application at first instance was that the relief sought fell within the commonly included preservation of a right to seek “urgent interlocutory or declaratory relief”. The decision addressed the power of arbitrators to make declarations when necessary.

An even more recent decision, but equally encouraging, is that of Justice Croft in the Victorian Supreme Court in Arnwell Pty Ltd v Teilaboot Pty Ltd [2010] VSC 123 (12 April 2010) in which his Honour refused to intervene in circumstances where the eminent arbitrator had refused an application for an adjournment. His Honour concluded that it was not appropriate for the Court to intervene merely because there was the potential for procedural misconduct or the absence of procedural fairness. If necessary, these matters might arise after the conclusion of the arbitration proceedings.


Arbitration in Brunei
The previous legislation in Brunei on the Recognition and Enforcement of Foreign Arbitral Awards is the Arbitration Act 1994. As to-date, the Brunei Arbitration Order 2009 regulates domestic arbitrations and the International Arbitration Order 2009 regulates international arbitration. Both statutes are based on the UNCITRAL Model Law on international commercial arbitration. They also follow the basic principle that Brunei courts may only support, but not interfere with, the arbitration process.

The Arbitration Association Brunei Darussalam (AABD) has been statutorily appointed as the default appointing body in the event of default or failure by the parties to appoint. The AABD was formed just after review of the Brunei constitution and laws in 2004, which provided for complete immunity by the Government of Brunei Darussalam from lawsuits before the Brunei law courts.


Arbitration in Hong Kong
Based upon the English Arbitration Act 1950, Hong Kong first enacted the Arbitration Ordinance (Cap. 341) in 1963. As a result of the recommendations in the Report on Adoption of the Report UNCITRAL Model Law of Arbitration, there were separate regimes for the conduct of domestic and international arbitrations respectively. In 1990, the Model Law was adopted for International Arbitration. In the light of the publication of the new draft English Arbitration Act in 1992, some recommendations were made and subsequently implemented by way of the Arbitration (Amendment) Ordinance1996. In gist, it promoted greater party autonomy, vested primary authority in arbitral tribunals and limited the scope of court intervention. In 2003, the HKIArb Committee issued the Report of Committee on Hong Kong Arbitration Law and recommended a unitary regime with Model law governing both domestic and international arbitrations. A consultation Paper on Reform of the Law of Arbitration in Hong Kong and Draft Arbitration Bill was published by the Department of Justice in 2007. The consultation was concluded in 2008.

Previously, administered arbitration in Hong Kong generally adopted the HKIAC Procedures of the Administration of International Arbitration (2005) and UNCITRAL Arbitration Rules. However, since 1 September 2008, this arrangement has been replaced by the HKIAC Administered Arbitration Rules which adopts a “light touch” administered approach. With an intention to be as user friendly as possible, the HKIAC Administered Arbitration Rules are written in plain language that can be easily understood by parties. Besides, much emphasis has been put on the party autonomy in individual cases. All these improvements make the HKIAC Administered Arbitration Rules more consistent with international practice and legislative development. Overall, the effect is that arbitration proceedings can be conducted in a more efficient and cost effective manner.

Based on case statistics from the Hong Kong International Arbitration Center (“the HKIAC”), in 2009 the HKIAC handled 649 dispute cases. There are in addition 97 cases from the HKIAC Maritime Arbitration Group. This gives a total of 746 dispute cases. These included 429 arbitration cases, 140 domain name cases, 159 mediations and 18 adjudications. The case figures do not include ad hoc arbitration and mediation proceedings or arbitrations conducted under the ICC or other institutional rules where the HKIAC's premises were used but where the HKIAC otherwise had no involvement. Of the 429 arbitration cases in 2009, 309 cases were international in nature and 120 were domestic. Of the total, 29 cases were fully administered by the HKIAC in accordance with its rules. Of the total number of arbitration cases, 93 involved construction disputes, 182 involved commercial disputes and 154 involved shipping.


Arbitration in Indonesia
Since the promulgation of new Arbitration Law (Law Nr. 30 of 1999), there is growing interest for arbitration in Indonesia as an alternate settlement for dispute resolution. This may be seen by increased number of cases registered in BANI. For example, in the 2009, the number of cases registered for arbitration is fourty four cases, compare to averaged twenty cases per year in the last five years previously. The dispute cover wider sectors of business, involving trade, industry and financing, with the majority is related to construction (40%).

Arbitration in Malaysia
Malaysia has since 2005 enacted UNCITRAL Model law based legislation the Arbitration Act 2005. The leading center in Malaysia is the Kuala Lumpur Regional Center for Arbitration (KLRCA) (http://www.rcakl.org.my), a body founded under international treaty. In keeping with Model Law principles, the Malaysian Arbitration Act 2005 seeks to minimise Court intervention and allows for greater party autonomy as regards the conduct of the Arbitration.

Arbitration in Philippines
The Republic of the Philippines has had an Arbitration Law since 1953, i.e. Republic Act No. 876 or The Arbitration Law (“RA 876”). In 2004, the Philippines Congress passed Republic Act No. 9285 (“RA 9285”) or the Alternative Dispute Resolution Act of 2004 - providing for a more comprehensive and current ADR legal regime.

Under RA 9285, the former Arbitration Law (i.e. RA 876) continues to apply to Domestic Arbitrations. International Commercial Arbitrations, on the other hand, are now governed generally by the provisions of the United Nations Commission on International Trade Law (“UNCITRAL”) Model Law.

Notably, Philippines Law distinguishes Construction Arbitrations from either Domestic or International Commercial Arbitrations. Construction Arbitrations are governed by Executive Order No. 1008 which gives the Construction Industry Arbitration Commission (CIAC) original and exclusive jurisdiction over construction disputes, where the parties thereto have agreed to submit their dispute to arbitration.

Foreign Arbitral Awards rendered in States which are signatories to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards may be recognized and enforced in the Philippines. But if rendered in a Non-Convention State, such recognition and enforcement may be made only on the basis of comity or reciprocity.


Arbitration in Singapore
The Arbitration Laws of Singapore

The laws governing private commercial arbitration in Singapore are divided into the international and domestic regimes, with a third regime dealing with ICSID investment disputes - the Arbitration (International Investment Disputes) Act.

Leaving aside investment disputes, every arbitration in Singapore must be governed by either the International Arbitration Act (“IAA”) or the Arbitration Act (“AA”) Arbitration Act (“AA”). The AA will also apply where the IAA does not, or where parties to an international arbitration which is otherwise subject to the IAA opt out of the IAA.

International arbitration is governed by the IAA. Enacted in 1994, it gives force of law to the UNCITRAL Model Law on International Commercial Arbitration (“the Model Law”), with some modifications and also gives effect to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (“the New York Convention”).

Domestic arbitration is governed by the AA, initially based on pre-1996 UK legislation but was revised completely in 2002 to harmonise the laws relating to domestic arbitration to those governing international arbitration. Nonetheless, Singapore keeps the two regimes separate so that the courts could continue to exercise a greater degree of supervision over domestic arbitrations. Thus, the AA but not the IAA permits appeal to the court on a point of law, subject to certain conditions being met. Another is the possibility of referring a question of law to the court under the AA to decide as a preliminary issue to assist the arbitration proceedings.

Note : The full article can be found in www.siarb.org.sg