The ACICA News - June 2012

The ACICA News - June 2012

THE

ACICA news June 2012 Australian Centre for International Commercial Arbitration

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Leader in international dispute resolution The ACICA News June 2012 | Vol 4 | No 2 ISSN 1837-8994

Contents The ACICA News - June 2012 article PAGe President’s Report Doug Jones AO............................................................................. 1 Secretary General’s Update Michelle Sindler............................................................ 3 ACICA President Awarded Order of Australia........................................................... 5 The Australian Arbitration Option – ACICA in China................................................. 7 Book Review The Hon Michael Kirby AC CMG............................................................... 19 The International Arbitration Act 1974. A Commentary (M Holmes & C Brown); International Arbitration in Australia (L Nottage & R Garnett); Foreign Investment and Dispute Resolution Law and Practice in Asia (V Bath and L Nottage)

Chester Brown Wins OGEMID Award...................................................................... 24 ICCA 2012 Singapore John Rundell.......................................................................... 25 Philip Morris Asia Ltd v Australia Malcolm Holmes QC........................................... 27 ACICA Rules Translation Bjorn Gehle...................................................................... 35 ACICA Keith Steele Memorial Prize 2012 David Fairlie........................................... 37 Willem C Vis Moot East and West Jonathon DeBoos and James Konidaris.............. 39 Global View: Updates from The Americas Kyle Dickson-Smith............................... 43 Australian Maritime & Transport Arbitration Commission Peter McQueen.......... 45 AMTAC Annual Address 2012................................................................................... 48 Commercial Arbitration Act: South Australia..........................................................49 Commercial Arbitration Act: Western Australia.................................................... 50 12 th Annual DRBS International Conference............................................................51 Member Profile: Judith Levine................................................................................ 57 Global News.............................................................................................................. 59 Events....................................................................................................................... 60

Publisher: Australian Centre for International Commercial Arbitration Editor: Gianna Totaro Designer: Sheree Shepherdson (www.spsdesign.com.au)

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The ACICA News - June 2012

Doug Jones AO ACICA President

President’s Report Welcome to the new look quarterly update, The ACICA News, our flagship publication reflecting news from Australia and around the world. Since our last edition in March, there has been plenty of interesting news to report.

ACICA China Initiative Marking the 40th anniversary since diplomatic relations between Australia and China began, we launched our China 2012 program in Shanghai and Beijing (6 – 7 June).

With Chinese enterprises facing significant issues in many parts of the world through joint investment and trade in various sectors including commodities, infrastructure, shipping and intellectual property, it was an opportunity to promote Australia as a neutral and attractive destination for Chinese business.

Hosted by Asia’s largest law firm and ACICA Corporate Member, King & Wood Mallesons (KWM) and supported by the Australian Government and the Australian Attorney General, the events attracted senior lawyers from international and local law firms including representatives from Chinese companies, government bodies and arbitral institutions.

Speakers and topics included: The Hon Marilyn Warren AC, Chief Justice of Victoria, who delivered a keynote address,

“Australia as a ‘safe and neutral’ arbitration seat” which included an outline of the legislative and judicial role of international arbitration in Australia; Brent Stewart, Trade Commissioner, Austrade (Shanghai) and Michael Growder, Counsellor, Cultural/ Public Affairs, Australian Embassy (Beijing) who delivered the message of support from the Australian Attorney General, the Hon Nicola Roxon; KWM Partners, Meg Utterback (Shanghai) and Ariel Ye and Shouzhi Zhang (Beijing) who provided a brief overview of the work in China and an explanation of why Australia may be an option for Chinese parties trading in the region. Enforceability of Australian awards, in particular ACICA awards, in the Chinese Courts and the attitude of the Chinese Courts to enforcing foreign arbitral awards; and Peter Megens, ACICA Vice President and KMW Partner (Melbourne) who provided a legislative overview on ACICA’s role and its suite of Rules.

In addition to securing the support of our media partner, the China Business Law Journal, we attracted the attendance of local media:

The ACICA News - June 2012

China Business News, China Daily Business Weekly, China Legal Daily, The Evening Mirror News and the International Business Daily.

AAR partner, Oscar Shub who has resigned as Allens’ board representative and welcome John Cooper, another Allens Sydney-based partner.

Given the importance of China and our focus on Asia, the feedback has been exceptional.

ACICA successfully demonstrated Australia’s legal culture, arbitration laws, arbitral rules, facilities, wealth of talent among our lawyers and arbitrators.

New members: We welcome the following new individual members who have joined since late March: Fellows: James Drake QC (UK), Madan Assomull (Singapore), Glenn O’Brien (Australia). Associates: David Roberts (Australia), Lekolota (Leks) Abram Makua (South Africa), Shane Murphy (Australia) and Jonathan Barnett (Switzerland).

IFCAI and ACICA I am pleased to announce I have been elected to the Executive of the International Federation of Commercial Arbitration Institutes (IFCAI) www.institutionalarbitration.org. The IFCAI’s membership comprise over 60 international arbitration institutions including the China International Economic and Trade Arbitration Commission (CIETAC) - Beijing, International Centre for Settlement of Investment Disputes (ICSID) – Washington DC, the International Chamber of Commerce (ICC) – Paris, and the London International Court of Arbitration (LCIA) – London. I am honoured to be elected and would like to publicly thank colleagues from Australia and around the world who supported my nomination. I see this as an opportunity to advance further Australia’s position and those of our members.

APRAG 10th Anniversary ACICA will host a special international conference in March 2014 in celebration of the 10 year anniversary of APRAG’s formation. To be held in Melbourne, the event will provide a timely opportunity to reflect upon the development of international arbitration in the Asia Pacific region over the ten years of APRAG’s existence and APRAG’s contribution to that development, as well as considering future challenges and opportunities. Australia is an appropriate host for such an event as it was the site of the formation of APRAG. I would like to acknowledge the work of ACICA Deputy Secretary General, Jonathon Deboos, who coordinated the successful bid.

ACICA Membership and Board Since the Australian Government confirmed ACICA as the sole default appointing authority competent to perform the arbitrator appointment under the amended International Arbitration Act, our membership has trended substantially.

Corporate members: ACICA has strengthened its international reach with global firm Clifford Chance joining our corporate ranks; we welcome Tim Grave as the firm’s representative on the Board. Allens Arthur Robinson, in an alliance with Linklaters, has now been rebranded as Allens Linklaters. We thank

Trans-Pacific Partnership (TPP) The recent inclusion of Mexico and Canada to the Trans-Pacific Partnership (TPP) as announced during the G20 Leaders’ Summit in Los Cabos, Mexico (18 – 19 June) will result— if negotiations are successful—in a free trade area covering some 658 million people and about $20.5 trillion in economic activity.

One of the benefits of having these two economies to the group, which now accounts for nearly 30% of the global GDP, is the capacity to reach a comprehensive regional agreement that liberalises trade and investment and the lifting of restrictions on services and investment.

With predictions that region-wide integration in the Asia-Pacific will generate almost $2 trillion in additional trade by 2025, it is therefore, in my opinion, very important for the Australian government to reconsider its position on international arbitration of Investor State disputes.

Doug Jones AO Professor Doug Jones AO is the Head of the International Arbitration and Major Projects Groups of Clayton Utz.

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The ACICA News - June 2012

Michelle Sindler ACICA Secretary General

Secretary General’s Update Let me start by congratulating our President Doug Jones on being made an Officer of the Order of Australia. His significant service, dedication and commitment to the promotion of ADR and in particular arbitration, is certainly reflected in this honour.

A

s we welcome the new financial year, it was a conference exploring the shifting focus from courtroom to mediation table that heralded the “dawn of a new era” in Sydney earlier this month, capturing the interest of practitioners and business when Lawyers Weekly held its ADR seminar.

The speakers agreed that dispute resolution lawyers today need ADR skills in addition to litigation skills.

Consistent with that, we see mediation training and professional development offered at the Australian International Disputes Centre through ACDC increasing in popularity. The next training course will be 6 – 10 August in Sydney and professional development continues in July. Don’t forget that your arbitration, mediation or other ADR procedure can be comfortably accommodated in Sydney at the Centre (www disputescentre.com.au).

NSW Bar and ACICA 2012 ADR Workshop We are very pleased to be co-presenting with ACICA Corporate Member, the NSW Bar its 2012 ADR Workshop. To be held on Saturday, 4 August 2012 (9.00am – 5.00pm) at the Westin Hotel in Sydney, it has attracted senior arbitration and mediation professionals and government representatives, including the Attorney General, the Hon Nicola Roxon.

This will be the AG’s first address to an ADR audience, and we are grateful to Angela Bowne SC, NSW Bar Chair of ADR and ACICA Board Member representative for this initiative. I will chair one of the sessions at this important ADR Workshop covering the latest developments in ADR. Full attendance at the conference will accrue 7 CPD points and 5 points towards mediator accreditation (Advocacy, Ethics and Substantive Law strands). Places are strictly limited so book early. A full program including session times will be available closer to

Global arbitration expertise with local knowledge With cross-border disputes on the rise, you need a local team that not only has the legal skills but also the ability to work across countries on complex arbitration. Through the strength of our leading global arbitration network, our Australian team can advise and represent you on all types of disputes, no matter where the problem has arisen.

Ben Luscombe, Perth, +61 8 9262 5511, ben.luscombe@cliffordchance.com Tim Grave, Sydney, +61 2 8922 8028, tim.grave@cliffordchance.com Nathan Landis, Perth, +61 8 9262 5512, nathan.landis@cliffordchance.com Julia Dreosti, Sydney, +61 2 8922 8072, julia.dreosti@cliffordchance.com

www.cliffordchance.com

The ACICA News - June 2012

the workshop date and posted in the Events section of the ACICA website. Click here

ACICA Voluntary Intern Scheme In conjunction with the AIDC, the ACICA volunteer intern scheme continues to operate well and to attract interest domestically and internationally, providing essential assistance with case management and administration.

Current interns are Rowan Platt from Allens Linklaters and Oma Lee from Hong Kong who is with us until the end of June. In the latest edition of The AIDC Bulletin, Oma shares a perspective on Med-Arb as practised in China. While Med-Arb has generated a degree of controversy in Australia, Oma says that Med-Arb has been embraced in China and is destined to play an increasing role in both domestic and international commercial cases there.

International Commercial Arbitration in Japan and Australia

Page 4: The Hon Nicola Roxon, Attorney General of Australia

ACICA member Professor Luke Nottage, in conjunction with Professors Tatsuya Nakamura and Romesh Weeramantry will present a public seminar at JCAA in Tokyo on 20 July to compare recent developments in Japan, Hong Kong and Australia, all jurisdictions that have based their arbitration legislation on the UNCITRAL Model Law. A follow-up seminar on 13 September in Sydney organised by Sydney Law School will be hosted by new ACICA Corporate Member, Clifford Chance. Registration is free but places are limited: RSVP by 7 September 2012 to kylie.kolts@cliffordchance.com. Professors Nakamura and Nottage will also participate in an interactive AFIA (Australasian Forum for International Arbitration) symposium hosted on 12 September in Brisbane by ACICA Corporate member, Corrs Chambers

Australian International Disputes Centre A: Level 16, 1 Castlereagh Street Sydney NSW 2000 P: +61 (0) 2 9239-0700 F: +61 (0) 2 9223-7053 E: info@disputescentre.com.au Visit and Book Online disputescentre.com.au

Westgarth. These events are part of a joint research project, “Fostering a Common Culture in Cross-Border Dispute Resolution: Australia, Japan and the Asia-Pacific�, supported by the Commonwealth through the Australia-Japan Foundation and the Department of Foreign Affairs and Trade.

ICC Australia The ICC Australia 2012 roadshows (running from 23 July - 1 August 2012, visiting Sydney, Brisbane, Perth, Melbourne and Canberra) will focus on business relationships with China and commercial dispute resolution as its two major themes. As well as a focus on China and Chinese arbitration, there will be a panel session at each seminar on the developments and increasing links between Australian and Chinese business. Click here

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The ACICA News - June 2012

L-R: Lord Peter Goldsmith QC , The Hon James Spigelman AC QC; The Hon Murray Gleeson AC, Doug Jones AO and the Hon Justice James Allsop

ACICA President Made an Officer of the Order of Australia Queen’s Birthday Honours 2012 Professor Douglas Samuel JONES AM RFD, Darling Point, NSW. For distinguished service to the law as a leader in the areas of arbitration and alternative dispute resolution, to policy reform, and to national and international professional organisations.

The Sydney Morning Herald 11 June 2012 The ACICA Board of Directors, Secretariat and ACICA Members extend their congratulations to Doug Jones AO for being made an Officer of the Order of Australia.

Pre-eminent Clayton Utz lawyer receives Queen’s Birthday Honours

This Australian firm is renowned for its work as counsel and as arbitrator.

Chambers Asia, 2009

• Experienced International Arbitration and ADR practitioners • End-to-end advice on complex cross-border transactions • Effective mechanisms for risk management and structuring foreign investments

www.claytonutz.com

The ACICA News - June 2012

Off the Press

LAFFAIRS LAFFAIRS

LEGALAFFAIRS AVIATION INSIDE

UK MOVE TRIGGERS PUSH FOR CHANGE

PETER BARTLETT Why a federal privacy tort is overkill { P30 }

LEGAL AFFAIRS EDITOR

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THE British government’s decision to introduce US-style contingency fees has triggered a push for Australian lawyers to be given the same right to take a proportion of what their clients win in court.

The move for contingency fees, outlawed in every state, is backed by top lawyers from plaintiff firm Slater & Gordon and corporate firm Clayton Utz. Slater & Gordon managing director Andrew Grech and Clayton Utz chief operating officer Stuart Clark both said contingency fees were a way of putting lawyers on the same footing as litigation-financing companies that already took a proportion of their clients’ damages awards.

Mr Grech said the changes in Britain were a response to concern about ‘‘the gradual dismantling’’ of civil legal aid, which had also taken place in Australia.

He said contingency fees were a fairer way of rewarding lawyers who took on high-risk cases against big companies.

He said they were not needed in personal injury cases, but would ensure solicitors were properly compensated for the risk involved in financing high-risk class actions against big companies.

Mr Clark said Australian companies in Britain would face an increased risk of litigation because of the introduction of contingency fees. ‘‘There is no doubt that this is yet another step towards American-style litigation,’’ he said. ‘‘There is no doubt that it will drive an increase in litigation.’’

But the fact that litigationfunding companies in Australia were taking a proportion of what their clients won in court meant contingency fees had already arrived. ‘‘I can’t understand why it is considered bad for lawyers to use contingency fees while it is considered good for litigationfunding companies to do the same thing,’’ Mr Clark said. ‘‘If it is good enough for a publicly owned corporation to enter into contingency fee arrangements with their clients, what on earth are the policy reasons for prohibiting lawyers from entering into the same arrangement? ‘‘I would prefer to see lawyers entering into contingency fee arrangements rather than publicly owned corporations that are not bound by the ethical considerations of a lawyer.’’

Mr Clark, also a senior litigator

Roxon orders review of aid funding NICOLA BERKOVIC

www.theaustralian.com.au/business/legal-affairs

19 June 2012

Arbitrators eye regional market

spent only on commonwealth legal matters. Since then the states have been forced to make up the shortfall.

While before 1997 the commonwealth provided most funding to the sector, in 2010-11 its funding of $193 million was eclipsed by $256m from the states.

After Victorian legal bodies warned of an impending crisis for legal aid services, state Attorney-General Robert Clark this week announced an extra $26m a year for legal aid over four years. He attacked the Gillard government’s ‘‘costshifting’’ on legal aid, and called on it to contribute its fair share to the sector.

But the national partnership agreement between the commonwealth and the legal assistance sector is not up for review until next year, and expectations are low that next week’s federal budget — in which the government has vowed to achieve a $40bn fiscal turnaround to deliver a surplus — will contain new goodies for the sector.

In 2010, former attorneygeneral Robert McClelland announced a $154m injection of new funding to legal aid, community legal centres and Aboriginal legal services over four years. But there was a tussle over the way in which the money was divided between the states.

Clayton Utz partner and global arbitral figure CallJones for has become the first Australian to Doug model sit on the board of a major arbitral association.

FRIDAY, MAY 4, 2012 P29

www.theaustralian.com.au/business/legal-affairs

Contingency Arbitrators eye regional market fees back eye onregional market Arbitrators the agenda CHRIS MERRIT

Justin Whealing - Editor

FRIDAY, MAY 4, 2012 P29 Lawyers FRIDAY, MAY Weekly 4, 2012 P29

www.theaustralian.com.au/business/legal-affairs

PETER BARTLETT Why a federal privacy tort is overkill { P30 }

PETER BARTLETT Why a federal privacy tort is overkill { P30 }

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ACICA head earns Australian first

litigant Jones (pictured), the head of the Australian Call for review Centre for International Commercial Arbitration (ACICA), has been appointed to the executive model Call for of the International Federation of Commercial litigant Arbitration Institutions (IFCAI). model IFCAI’s members comprise the leading litigant review international arbitration institutions, including CHRIS MERRITT

THE Rule of Law Institute has called for an early review of the federal government’s model litigant rules after the High Court ruled in the James Hardie litigation that the Australian Securities & Investments Commission should not be penalised for failing to call a key witness.

The institute’s chief executive, Richard Gilbert, said the ASIC decision had ‘‘cleared the decks for an independent review of the model litigant rules, preferably by the Australian Law Reform Commission’’.

The High Court overturned a of the NSW Court of CHRIS MERRITT decision Appeal that ASIC’s evidence against seven former nonexecutive directors of James THE Rule of Law Institute has be discounted Hardie should because corporate regulator called for an early review ofthe the had breached its duty to act fairly federal government’s model by failing litito call the witness.

The witness was former Algant rules after the High Court lens partner David Robb, who had beenlitidescribed by the Court ruled in the James Hardie of Appeal as an important and gation that the Australian available witness.

TheComHigh Court ruled that Securities & Investments failing to call Mr Robb to give mission should not be evidence penalised about disputed board minutes had caused no unfor failing to call a key witness. fairness to seven former nonThe institute’s chief execuexecutive directors of James tive, Richard Gilbert,Hardie saidwho thewere facing legal action by ASIC. And, even if it ASIC decision had ‘‘cleared the had caused unfairness, it would be wrong to decks for an independent reviewrespond by discounting other evidence. of the model litigant rules, The prefsix-judge majority judgment concluded that it was erably by the Australian Law neither necessary nor desirable Reform Commission’’. to explore in any detail the source and content of the duty to The High Court overturned a act fairly. decision of the NSW Court of litigant rules, The model are part of the Legal SerAppeal that ASIC’s which evidence vices Directions administered by against seven former nonthe Attorney-General’s Department, require all federal agencies executive directors of James to conduct their legal affairs with efficiency and fairness.

Hardie should be discounted The call for a review of the because the corporate rules regulator comes soon after the govrejected criticism of the had breached its duty toernment act fairly DAN HIMBRECHTS way its agencies conducted by failing to call the witness. themselves in court and asserted Doug Jones, the president of the Australian Centre for International Commercial Arbitration, in Sydney yesterday that just one The witness was former Al-federal agency had breached the model litigant rules available for private commercial persuading that country’s lawyers in the Asia-Pacific region, Mr CHRIS MERRITT partner David Robb, who is spreading the word that in the past two years. arbitration and attract more and business leaders to include Joneslens of thatbeen work should stay in by the MrCourt Gilbert said the rules had arbitration clauses in new inter- morehad international arbitration work. described not been reviewed for many Bills enacting the new laws are national contracts naming Aus- the region instead of creating AFTER years of effort, Australia asofan important for Appeal the arbitrators Paris years andand there were issues that is on the brink of establishing the either in force or before parlia- tralia as the venue for resolving workof and London. needed to be resolved. national legal infrastructure that ment in every state except disputes. available witness.

In this market, some may view The government’s assertion He sees this — rather than is intended to give this country a Queensland, where a delay due to The HighKong Court ruled that and Hong as of just one breach of the rules in greater share of the booming the state election is expected to be attempting to undertake com- Singapore rivals, to but call on another twoto years was contained in a resmercial arbitrations within India potential market for international com- overcome soon. failing Mr Robb give ponse in February to questions Much of the lobbying that led — as the most promising aspect of level Mr Jones believes the intermercial arbitration. evidence about disputed board ests of all three jurisdictions are in on notice from the opposition. the Indian market.

Right around the nation, legis- to the new network was underLate last year, the Rule of Law ‘‘The thing about India is that alignment. lation governing commercial taken by Doug Jones, who is the minutes had causedInstitute no un‘‘Singapore and Hong Kong presented the governarbitration has been overhauled president of the Australian there are a hell of a lot of good toofseven nondone a great job building former ment with a series of judgments and brought into line with inter- Centre for International Com- lawyers. And taking lawyers to have fairness in which federal and state judges India is a bit like taking coals to themselves as credible centres of mercial Arbitration. national standards. executive directors of James arbitration within the region. And had accused several government ‘‘If we can rise to the challenge Newcastle, in my view,’’ he said.

The new laws are based on the we are competing, we facing agencies of not acting fairly in Success in this venture is diffi- although Hardie who were legal rules of the UN Commission on of using the model law to offer innovative processes, we will cult to gauge because of the inevi- are all, together, trying to draw to International Trade Law. action by ASIC. And, court. evenThe if itgovernment responded by asserting that the That network is intended to compete more effectively within table time lag between the in- our region the disputes arising the trade in our region. of the judiciary were not clusion of an ‘‘Australia clause’’ from had ensure that Australian commer- the region,’’ he said. caused unfairness,views it would ‘‘The opportunity of doing that conclusive on whether agencies To help ensure Australian ar- and the need for that clause to be cial arbitrators develop expertise be wrong to respond dis-the rules. is enhanced by the existence of a hadby breached bitrators do tap that regional exercised. in the UNCITRAL rules. of credible,other neutral seats But, with the growing number number Over time, the goal is to market, Mr Jones was part of a recounting evidence.‘‘The ball is with the AttorneyGeneral,’’ Mr Gilbert said. deepen the pool of expertise cent delegation to India aimed at of commercial transactions with- for arbitration.’’

London International Court of Arbitration reviewthe and the China International Economic and Trade CHRIS MERRITT

Arbitration Commission.

THE Rule of Law Institute has called early review of to the be elected to the Board and...

“I for amanhonoured federal government’s model litigant rules after the High Court Read ruled in theMore James Hardie litigation that the Australian Securities & Investments Commission should not be penalised for failing to call a key witness.

The institute’s chief executive, Richard Gilbert, said the ASIC decision had ‘‘cleared the Alex Boxsell - Legal Affairs Editor decks for an independent review The Australian Review of the model litigant rules,Financial preferably by the Australian Law 15 June 2012 Reform Commission’’.

The High Court overturned a A smattering of the decision of the NSW Court of legal profession’s finest were Appeal that ASIC’s evidence recognised in the Queen’s Birthday honour list against seven former nonexecutive directorsTop of James this week. of the pops was West Australian The states shoulder the burden Income sources for legal aid commissions Hardie should be discounted Income $m Chief Wayne Martin, who now has an AC State grants 300 because the Justice corporate regulator 250 hadto breached to act fairly after receiving a companion add itstoduty his name Commonwealth grants 200 by failing to call the witness.

150 in the general division of the Order of Australia.

The witness was former Al100 Other income lens partner David Robb, who 50 Clayton Utz partner and international arbitration had been described by the Court 0 19969806080004100297 99 07 09 01 of Appeal an important and got an AO, as did former 05 11 03 guruasDoug Jones Source: National Legal Aid. Excludes funding for Community Legal Centres available witness. president ofruled the that WA Court of Appeal, Christopher The High Court In that case, more than 2000 and head of an industry lobby group for large law firms, said his victims of last year’s Brisbane failing to call MrQC. Robb to give views were not the official pos- floods have signed funding agreeSteytler, ments with IMF (Australia) that ition of the large law firm group. evidence about disputed board But if lawyers could use contin- would give it up to 30 per cent of minutes had caused no ungency fees, the extra competition any ex-gratia payments received would force litigation-funding after January 1 next year, or after fairness to seven former noncompanies to reduce their the company began proceedings.

The changes in Britain, due to charges. executive directors of James ‘‘With a lack of competition, come into force next April, will see Hardie who were facing legal the proportion of damages that the introduction of a contingency funders can demand increases — fee system known as damagesaction by ASIC. And, even if it a good example is the Brisbane based agreements.

The Law Society Gazette of flood litigation,’’ he said. ‘‘It’s had caused unfairness, it would Continued on Page 30 pretty hefty.’’

The six-judge be majority judgwrong to respond by disment concluded that it other was evidence. counting neither necessary nor desirable The six-judge majority judgto INTEREST explore inMONITOR any Chris detail theMerritt - Legal Affairs Editor PUBLIC ment that it was source and content of theconcluded duty to The Victorian Government is seeking expressions of interest for neither necessary nor desirable appointment as the Principal Public Interest Monitor and Deputy Public The Australian act fairly.

Interest Monitors under the Public Interest Monitor Act 2011 (the Act). to explore in any detail the litigant The object of theThe Act is to model provide an additional safeguard rules, in relation to applications for warrants, orders or approvals to useMay certain covert2012 There is a lot to be said for credrafted’’. In a letter to opposition expressly address the sensitivities source andandcontent of the duty to part ofsurveillance the4Legal or coercivewhich investigativeare powers, such as devices SerCHRIS MERRITT legal affairs spokesman Paul ANDREW LYNCH that arise in cases of judicial ating some anterior process of intelecommunication intercepts. vices Directions administered act fairly. by quiry to assist the parliament.

Lynch, Mr Dowd says the comincapacity.

The Act requires a person making a relevant application to provide specified information to a But any body established for This weakness is hard to exTHE NSW Law Society believes mittees believe that when parliathe Attorney-General’s DepartPublic Interest Monitor. The functions of a Public Interest Monitor are to: The model years litigant of rules, plain given the publicity sur- this purpose cannot go so far as to planned changes to the NSW ment is determining a complaint AFTER effort, Australia is on the brink • appear at any hearing of a relevant application to test the content and sufficiency of require all federal agencies rounding moves to remove from usurp the parliament’s conJudicial Commission will give the against a judge ‘‘it is not unreasoninformation relied on and the ment, circumstances of the application; and which are part of the Legal Serthe bench some state judicial offi- stitutional responsibilities under state government too much access able to know about the existence • for the purposes of testing theto content and sufficiency of information relied on and the conduct their legal affairs with of establishing the circumstance of the application, to ask questions of any person giving information in section 72. cers suffering mental illness. to information about the way of other complaints’’. vices Directions administered by national legal infrastructure relation to the application, andefficiency to make submissions as to the appropriateness of granting the The difficulty of treading that However, they believe that the Additionally, the bills show complaints against judges are and fairness. application. the that Attorney-General’s Departbill should be ‘‘more circumlittle sign of benefiting from fine line was clear in the drawnbeing handled. is The Monitor call isfor a review ofannually the Under the Act, the Principal Public Interest responsible for reporting on intended to give this country a greater engagement with international out investigation, through two The changes, outlined in legis- scribed’’ to allow the attorneyrequire all federal agencies the operation of the Public Interest Monitors, and may issue Guidelines a Deputy protection for persons with dis- Senate committee inquiries and lation before the NSW parliament, general to obtain information rules comes soonment, afterabout thehowgovPublic Interest Monitor is to perform his or her functions. have triggered a warning from the from the Judicial Commission in THERE has been much debate on abilities, despite these being em- then a special parliamentary comshare oflegal the booming market for international to conduct their affairs with A Public Interest Monitor will need to respond to relevant applications at short of notice, ernment rejected criticism the opposition that the scheme risks only two circumstances: what should be done about House bedded in the government’s Aus- mission, of allegations of misincluding out of hours applications.

DAN HIMBRECHTS efficiency and fairness.

Human Rights behaviour against the late High eroding the perception the When parliament is addressing a of Representatives Speaker Peter tralian way its agencies conducted Public Interest Monitors will also be subject to statutory confidentiality provisions, be commercial arbitration.

Court judge Lionel Murphy in the complaints-handling system for complaint, the attorney-general Slipper while serious allegations Framework. obliged to avoid actual or potential conflicts of interests and required to adhere to strictfor a review of the The call themselves in court and asserted Doug Jones, the president of the Australian Centre for International Commercial Arbitration, in Sydney yesterday At present, section 72 of the early 1980s. the judiciary is independent of should be able to ask the commis- about his conduct persist. security standards.

More importantly, the Murphy government.

Coincidentally, how federal Constitution alone governs what sion if other complaints exist. that just onelegal federal agency rules comes after the govA successful candidate will need to be an Australian practitioner and must nothad be: soon a The changes are contained in When the existence of a judges should be treated when happens when allegations are affair highlighted the undesiraround the nation, legislation governing Member of Parliament; the Director of Public Prosecutions, SolicitorRight for Public Prosecutions, theproAsia-Pacific region, Mr under thebreached theActmodel litigant rules persuading that country’s lawyers private commercial of having in to graft against a member of the ability the Judicial Officers Amendment complaint about a available are similarly under what made judicial officerforthey any person appointed Public Prosecutions 1994ernment or employed in, orrejected seconded to, criticism of the CHRIS MERRITT the Office ofthat Public Prosecutions; personpast who is two eligibleyears. to make a relevant application or cedures on to the basic parliamenfederal judiciary.

It provides that Bill introduced to parliament by is in the public arbitration Gillard refers to as ‘‘a dark domain, the Julia Jones is spreading the word inathe and attract more and business leaders to include DAN HIMBRECHTS way conducted who is employed in or by, or seconded to, a body that is eligible to make aits relevantagencies application. commercial arbitration has been overhauled and Attorney-General Greg Smith. attorney-general should be able to cloud’’ is the subject of two bills be- he or she may be removed by the tary process after a controversy stay Mrrelevant Gilbert theandrules arbitration clauses in new inter- more of that work should international arbitration work.

Candidates willin be required to undertake securitysaid clearances, may be had appointed has flared.

Governor-General in council If enacted, the bill would give ask for information federal parliament. about that fore themselves in court and asserted Doug Jones,thethe president of the Australian Centre for International Commercial Arbitration, inDunSydney yesterday for up to three years on a full-time or part-time basis. Terms and conditions of appointment Former Labor minister after bothcontracts houses of parliathe attorney-general to Australia The the bills are the laws Judicialare Mis- only complaint. the region instead ofwill creating been reviewedbrought for many into line with international standards. national naming AusBills enacting new AFTER years ofpower effort, be set out in the instrumentnot of appointment. can Kerr SC, now appointed to the obtain information from the Mr Dowd says that the legis- behaviour and Incapacity (Parlia- ment are satisfied. that De just one federal agency had Expressions of interest should be submitted by 18 there May 2012 were to Marisa issues Cicco, Executive work for of Paris years and that tralia as the venue for resolving eitherstate initforce or Commissions) before parliais on Commission the brinkonof establishing the expressly Federal Court of Australia, once the arbitrators The principle of judicial indepJudicial whether a lation should mentary Bill and Director, Strategic Policyregion, and Legislation,Mr Department of Justice, Level 26/121 Exhibition in the Asia-Pacific breached the model litigant rules persuading country’s lawyers available for state private commercial expressed his reliefand that the swift means it should not bethat complaint hadlegal been made about a does not the Courts Legislation Amend- endence empowerment the attorneyStreet, MELBOURNE 3000, orneeded via email Marisa.DeCicco@justice.vic.gov.au.

London. to be resolved. disputes. in every except national infrastructure that The laws are based on the rules of the UN easy for governments to force collapse of the allegations of misjudicial officer,MERRITT the subject matter general to direct the Judicial Com- ment (Judicial Complaints) Bill.

CHRIS Respondents are requested indicate whether they are interested the position Jonessome is spreading the toword that in inthe pastofnew two years. and business leaders include arbitration and attract In this may view The government’s assertion He sees this —currather than where athey delay due to more isthe intended to give a to Queensland, conduct againstto High Court judge market, judges off the bench, but the of complaint and how it this was country Together aim to provide mission on how deal with comPrincipal and / or Deputy Public Interest Monitor, and whether they are Michael Kirby in 2002interspared an bills aimarbitration to address two per-clauses resolved. processes work. plaints. Mr Lynch said the letter clear and certain available on a full / or part-time basis. A position descriptionof may more of that work should in Mr in new international arbitration Singapore and Hong Kong asand of stay just one breach theGilbert rules in said the rules attempting to undertake comthe state election is expected to befor rent greater share of the booming Commission on had International Trade Law. ‘‘unready’’ parliament from havLaw Society president Justin indicated that the Law Society was handling complaints about fed- ceived deficiencies of section 72. also be obtained from the above address. the but region instead ofbecreating not reviewed for many national naming Aus- rivals, enacting the new lawsmercial are potential on another twotoyears was contained in a resAFTER years ofcrimieffort, Australia within India ing to debate the issue. soon.

First, it isarbitrations hard to argue contracts that market for international comDowd said that the society’s eral judges. echoing some of hisovercome concerns. Bills Confidential enquiries may made Ms De Cicco on (03) 8684 0803been The Parliamentary Commis0411 020 795. nal law and family issues comThey largely succeed in this either house is an ideal forum to ‘‘The fact that the Law Society level Mr Jones believes the interin February toThat questions — asallegations thetralia mostofpromising aspect ofset resolving Much of in the lobbying that led handle mercial arbitration. work for orthe arbitratorsponse of Paris years and there were issues that as the venue for or before is onhad the brink sions Bill will up a mechanism misbehavmittees examined theof bill establishing and regards the billthe aim,force but a criticism that can beparliaas drafted either way too network is intended to ensure that Continued on Page 30 network Continued iour incapacity exclusively. believed thataround itlegal was ‘‘too widely made the bills is their failure to estsonofPageall30three jurisdictions on notice from the opposition. theorIndian market. to the new was underRight the nation, legis-that and London. are in needed to be resolved. disputes. ment in ofevery state except national infrastructure alignment. last year, theThe Rule of Law ‘‘The thing

by Doug Jones, whoa is the due to lation governing Australian commercial arbitrators develop In this market, some mayLate view government’s assertion Heabout seesIndia this is—that rather than Queensland, where delay is intended to givecommercial this country ataken ‘‘Singapore and Hongand Kong Institute the governthere a hell of a lot good the Australian arbitration has been overhauled Singapore Hong Kong aspresented of just one breach of rulesUNCITRAL in attempting to of undertake comthe stateofelection is expected to be are greater share of the boomingpresident inthethe rules. ment with a series ofexpertise judgments and brought into line with inter- Centre for International Com- lawyers. And taking lawyers to have done a great job of building potential rivals, of but on in another twostate years was contained in a reswithin India as overcome soon. market standards. for international com-mercial themselves credible centres which federal and judges India is mercial a bit like arbitrations taking coals to Arbitration. national level Mr Jones believes the interponse in February to questions — as the most promising aspect of Much of the lobbying that led mercial arbitration. arbitration within the region. And had accused several government ‘‘If we can rise to the challenge Newcastle, in my view,’’ he said.

The new laws are based on the Over time, the goal is to deepen the pool of all three jurisdictions are in of not acting on notice from theinIndian market. to the network Right around the nation,on legis-of using areof competing, we agencies fairly in the opposition.

Success this venture is diffi- although weests thenew model law to was offerunderrules of the UN Commission expertise available for private commercial alignment.

Late lastreyear, the Rule of Law thing about Indiaareisall, that taken byprocesses, Doug Jones, who iscult theto gauge‘‘The lation governing commercialinnovative together, trying to draw to court. The government because of the ineviwe will International Trade Law. ourgood region the‘‘Singapore disputes arising sponded thatpresented the table time lag are between and Hong Kong by asserting Institute the governmore effectively there a hellthe of ina lot of That network is intended to compete president of the within Australian arbitration has been overhauled arbitration and attract more international from the trade in our region. views of the judiciary were not clusion of an ‘‘Australia clause’’ the region,’’ he said. ensure that Australian commerment with a series of judgments and brought into line with inter- Centre for International Com- lawyers. And taking lawyers to have done a great job of building ‘‘The of doing that conclusive agencies be coals To help ensure Australian ar- and the need cial arbitrators develop expertise themselves as credible centres of on whether in which federal and state judges Indiaforisthat a bitclause like to taking toopportunity mercial Arbitration. national standards. arbitration work. is enhanced by the existence of a had breached the rules. exercised. bitrators do tap that regional in the UNCITRAL rules. arbitration within the region. And had accused several government ‘‘If we can rise to the challenge Newcastle, in my view,’’ he said.

The new laws are based on the ‘‘The ball is with the AttorneyBut, with the growing number number of credible, neutral seats Over time, the goal is to market, Mr Jones was part of a rewe agencies of not acting fairly in Success in this venture is diffi- although we are competing, rules of the UN Commission on of using the model law to offer General,’’ Mr GilbertRead said. deepen the pool of expertise cent delegation to India aimed at of commercial transactions with- for arbitration.’’

More court. The government reinnovative processes, we will cult to gauge because of the inevi- are all, together, trying to draw to International Trade Law. sponded by asserting that the That network is intended to compete more effectively within table time lag between the in- our region the disputes arising views of the judiciary were not clusion of an ‘‘Australia clause’’ from the trade in our region. ensure that Australian commer- the region,’’ he said. ‘‘The opportunity of doing that conclusive on whether agencies To help ensure Australian ar- and the need for that clause to be cial arbitrators develop expertise is enhanced by the existence of a had breached the rules. bitrators do tap that regional exercised. in the UNCITRAL rules.

PUBLIC MONITOR number of credible, neutral seats ‘‘The ball is with the AttorneyBut, with the growing number INTEREST Over time, the goal is to market, Mr Jones was part of a reThe Victorian is seeking expressions of interest for for arbitration.’’

General,’’ Mr Gilbert said. with-Government deepen the pool of expertise cent delegation to India aimed at of commercial transactions ATTORNEY-General Nicola Roxon has ordered a major review of legal aid funding, ahead of next week’s tight federal budget.

Allen Consulting Group will conduct the independent review of the commonwealth’s investment in the legal assistance sector.

Ms Roxon said the review, to be completed by June 30 next year, was aimed at ensuring the commonwealth delivered the most cost-effective legal assistance to those most in need. ‘‘Labor has a strong tradition of providing better access to justice for Australian families,’’ Ms Roxon said. ‘‘Our commitment of more than $1.3 billion in legal assistance funding is the largest commitment in over a decade and is making a real difference around the country.’’

The cash-strapped sector has long complained about the commonwealth’s contribution to legal aid funding, which was slashed during the Howard government era and subjected to restrictive rules enabling commonwealth funding to be

Matter of honour

Arbitrators eye regional market

Concerns on changes to complaints process

Federal bill is silent on how to handle issue of judicial incapacity

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The ACICA News - June 2012

Page 7: Beijing L-R: Michael Growder (Counsellor, Cultural /Public Affairs, Australian Embassy), Peter Megens (ACICA Vice President), Doug Jones AO (ACICA President), The Hon Marilyn Warren AC (Chief Justice of Victoria), Ariel Ye (KWM Partner) and Shouzhi Zhang (KWM Partner) Page 8: Peter Megens and Jack Tang (Senior Trade and Investment Officer, NSW Government, Shanghai)

The Australian Arbitration Option: ACICA in China Shanghai, 6 June 2012

Host:

King & Wood Mallesons International Commerce Center Shanghai

Chair

Meg Utterback, Partner, King & Wood Mallesons

Speakers

The Hon Marilyn Warren AC, Chief Justice of Victoria Professor Doug Jones AO, ACICA President Peter Megens, ACICA Vice President Brent Stewart, Trade Commissioner, Austrade (Shanghai)

Beijing, 7 June 2012

Host:

King & Wood Mallesons World Financial Center Beijing

Chair

Ariel Ye, Partner, King & Wood Mallesons

Speakers

The Hon Marilyn Warren AC, Chief Justice of Victoria Professor Doug Jones AO, ACICA President Peter Megens, ACICA Vice President Shouzhi Zhang, Senior Partner, King & Wood Mallesons Michael Growder, Counsellor, Cultural/Public Affairs, Australian Embassy (Beijing)

The ACICA News - June 2012

Off the Press Oz arbitrators spruik wares in Asia Leanne Mezrani Lawyers Weekly 8 June 2012 The chief justice of Victoria, the Hon Marilyn Warren AC, was among the speakers who talked up Australia’s international arbitration credentials at events in Shanghai and Beijing this week (6 and 7 June).

Read More

Oz arbitrators eye Chinese market Leanne Mezrani Lawyers Weekly 24 May 2012 The Australian Centre for International Commercial Arbitration (ACICA) will hold events in Shanghai and Beijing this June in an attempt to attract a greater share of the booming international arbitration market.

The not-for-profit body will tout the benefits of...

Read More

AIDC to set up Vic hub Alex Boxsell - Legal Affairs Editor The Australian Financial Review 8 June 2012 Melbourne could soon join Sydney as an international disputes hub, with plans under way to open a Victorian branch of the Australian International Disputes Centre.

The Victorian government supports the idea and is expected to soon announce when the opening will take place and where it will be based.

Victorian Chief Justice Marilyn Warren told an arbitration conference in China this week that the proposed Melbourne centre would add to “a national facility of great significance”. A similar centre was opened in Sydney in 2010.

Chief Justice Warren said Victorian AttorneyGeneral Robert Clark had suggested the William Cooper Justice Centre as the base for the AICD office.

“It is a modern facility in the heart of Melbourne’s legal precinct,” she said.

“The facility is under active consideration. I expect an announcement very soon.”

Australia’s role in international dispute resolution The Herald Sun 29 June 2012 Read More

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The ACICA News - June 2012

Doug Jones AO outlining the advantages of Australia as a neutral venue and the premier one stop full ADR service and facilities of Australian International Disputes Centre

The Hon Chief Justice Marilyn Warren AC delivering her keynote address: Australia as a ‘safe and neutral’ arbitration seat

The ACICA News - June 2012

Ariel Ye explaining the enforceability of Australian awards, in particular ACICA awards, in the Chinese Courts and the attitude of the Chinese Courts to enforcing foreign arbitral awards

Peter Megens explaining the legislative overview on ACICA’s role and its suite of rules

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11 The ACICA News - June 2012

Shouzhi Zhang (KWM Senior Partner, Beijing) providing an overview of the firm’s international arbitration work

Michael Growder (Counsellor, Cultural/Public Affairs, Australian Embassy), delivering a message of support of behalf of the Australian Attorney General, the Hon Nicola Roxon

The ACICA News - June 2012

L-R: James O’Loughlin (Executive Director, Austcham Shanghai) Mark Schaub (KWM Partner) Meg Utterback (KWM Partner) The Hon Marilyn Warren AC (Chief Justice of Victoria) Doug Jones AO (ACICA President), Peter Megens (ACICA Vice President) and Brent Stewart (Trade Commissioner, Austrade - Shanghai)

Both Shanghai and Beijing events attracted senior lawyers from international and local law firms including representatives from Chinese companies, government bodies and arbitral institutions

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13 The ACICA News - June 2012

Doug Jones AO fielding questions from delegates during Q and A session

Beijing Partner for Gide Loyrette Nouel AARPI, Zheng Yu, who specialises in foreign direct investments, mergers and acquisitions, banking and dispute resolution

The ACICA News - June 2012

Shanghai-based KMW Partner, Meg Utterback: “Next 10 years, transition as ‘old’ Western economies adjust. World Bank sees Australia as the leading country in this transition , largely because of its proximity to Asia”

Claudius Triebold, Partner & Head of International Arbitration, Eversheds and China-based, Senior Dispute Resolution lawyer, Monique Carroll

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15 The ACICA News - June 2012

Beijing- based, Managing Partner and Head of Asia for Dechert LLP, Jingzhou Tao and Doug Jones AO

Jason Qian, Chairman of Legal Focus Group, British Chamber of Commerce and Helen Tang, Senior Associate, Herbert Smith LLP

THE NEW LEGAL POWERHOUSE IN THE ASIA PACIFIC

Acknowledged as leaders in International Arbitration in Australia, Hong Kong and China, our team is ready to advise you on your most significant cross-border transactions

www.kwm.com

The ACICA News - June 2012

Mingchao Fan, Arbitrator and Special Advisor to the Secretary-General of the Shanghai Arbitration Commission and Doug Jones AO

L-R: Beijing-based KMW Partner, David Olsson, Jonathan Barnett (Senior Associate, Eversheds) and Armstrong Chen, Deputy Director, Supervisory Rules & Regulations Dept, China Banking Regulatory Commission

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17 The ACICA News - June 2012

The Australian Arbitration Option: ACICA in China Chinese enterprises are facing increasing amount of international arbitration since the financial crisis (Wang Shifeng, Senior Business Journalist, China Business News, 21 June 2012).

O

ver the past decade and more, an increasing number of foreign companies and Chinese enterprises doing business together have lead to a large amount of disputes being settled by arbitration. A trend appears to be emerging that the vast majority of arbitration results majority end up be determined against the Chinese side. Since the global financial crisis, the amount of maritime and trade disputes with Chinese companies have jumped. To answer how we should treat the development of arbitration cases after the financial crisis, the reporter interviewed a Member of the International Federation of Commercial Arbitration Institutions, Australian Centre For International Commercial Arbitration President Doug Jones.

China Business News: In your opinion, since the financial crisis is there any change to the number of international arbitration cases and types of industries engaged in arbitration?

Pr Jones: There has been a significant increase in the number of international disputes since the financial crisis. The GFC has seen substantial commodity price volatility, and impacted on ship building, infrastructure, property development in particular, as well as many others. The spike in case numbers has now levelled off, but are maintaining at an elevated position compared to before the crisis.

News: With the accelerated pace of Chinese overseas investment, do you think Chinese enterprises are facing a greater risk of

legal disputes, including arbitration? What industries or types of disputes would Chinese enterprises encounter most in leading with overseas business, and in particular with Australian business?

Pr Jones: I certainly think this is the case.

Chinese enterprises face significant issues in many parts of the world as they invest in intellectual property, construction, mining and processing, oil and gas. As foreign direct investment increases Chinese enterprises must become more sophisticated in the use of the different types of arbitration (commercial and investor state). In particular, it would be useful to be well informed about potential venues for arbitration. Companies should look for institutions offering neutrality, and legal regimes that are supportive of international arbitration. Australia is an example of a neutral venue for resolving disputes Chinese enterprises have in trading with counterparts in North and South America, Asia, and the Middle East.

News: Over the past decade, Chinese State Owned Enterprises and private enterprises have been in a rush to invest in Australia’s resources industry. However, as the Chinese economy is moving to a downstream growth period from 2012, and with a deceleration happening more quickly than estimates, do you think there will be a greater risk of disputes springing from this Chinese-Australian investment?

Pr Jones: I think that is certainly correct.

As Chinese companies adjust to changes in

The ACICA News - June 2012

economic growth there will potentially be more disputes relating to contract renegotiation and adjustment of investments.

News: Why is the amount of money disputed in arbitrations involving Chinese companies increasing? And why is it that most international arbitration involving Chinese parties ultimately fail as a final result? What do you think are the reasons behind this?

Pr Jones: Taking into account the growing demand on Chinese companies to be involved in international arbitration, Chinese companies will need to seriously listen to and embrace the

rich experience of international arbitration that arbitration organizations have.

News: Some Chinese enterprises say that the time taken by foreign arbitration institutions is too long. What do you think about this problem?

Pr Jones: The length of arbitration is an issue, as is enforcement of decisions in some countries. It is very important to choose a arbitration rules which provide speedy resolution. The Australian Centre for International Arbitration Rules, and a venue in Australia, would probably minimises the delay commonly seen.

ACICA gratefully acknowledges the assistance of Nicholas Rudd, Lawyer, Clayton Utz with the provision of the English translation of the following article published in the China Business News, 21 June 2012

金融危机以来中国企业面临的国际仲裁风险增大 过 去十多年间，越来越多的外国企业对中国企业发起了仲裁申请，不仅仲裁金额节节攀升，而且仲裁结果绝大多数以中 方失利告终。国际金融危机发生后，与中国企业有关的海事纠纷、贸易纠纷进入了一个高发期。如何看待金融危机后 的仲裁案例发展，记者专访了国际商事仲裁机构联合会委员、澳大利亚国际贸易仲裁中心主席多格·琼斯。 第一财经日报：在你看来，国际金融危机前后，国际仲裁中的案件数量和行业分布有哪些变化？ 琼斯：在国际金融危机之后，确实有一个十分明显的仲裁案件的数量增长现象，特别是与大宗商品价格变动、造船、 基础设施、财产变动的领域。现在案件增长的高峰已经过去，只是案件的数量与国际金融危机之前相比仍在高位。 日报：随着中国海外投资的步伐加快，你认为中国企业出海是否面临更大的法律挑战？哪些行业的企业的海外业务容 易出现纠纷？ 琼斯：我个人认为，面临更大法律挑战的问题是肯定会出现的情况。现在中国企业已经深度参与国际上的半导体、建 筑、矿产开采和加工、石油和天然气等行业中。随着中国对海外直接投资的增加，中国的企业需要更为娴熟地掌握国 际商务和投资者的仲裁。因此，需要充分了解如何选择合适的仲裁地点，以确保该仲裁地能保持中立态度并支持国际 仲裁法律制度。我所在的澳大利亚恰好为中国企业提供了从北美和南美、从亚洲和中东的商务伙伴交易的中立仲裁地 点。 日报：在过去的十年中，看中中国当时的资源高需求，中国国有企业和民营企业在澳大利亚资源行业掀起投资高潮。 然而，由于中国经济从2012年开始放缓，对海外资源的需求增速下滑，请问在这样的情况下，中国前期在澳投资是否 会面临更多的纠纷风险？ 琼斯：我想的确是的。随着中国企业自身随着中国经济增长的变化进行调整，我想将有可能引发关于合同再谈判或者 前期投资修整方面的潜在纠纷。 日报：有数据显示，目前涉及中国的国际仲裁案例中绝大多数都以中国企业失败告终，请问你对此有何建议？ 琼斯：考虑到中国方面在国际仲裁上日益增加的需求，为赢得仲裁，我想中国企业需要切实听取并采纳富有经验的国 际仲裁组织的意见来让中国企业的仲裁赢面最大化。 日报：一些中国企业反映，国外仲裁机构的执行时间太长，而且过长的时间会降低他们选择国际仲裁机构的意愿？你 怎么看这个问题？ 琼斯：仲裁的时间长度是一个问题，这同一国政府对决定的执行力有很大关系。因为是在一些国家决定的执行。在实 际仲裁中，选择能提供快速仲裁的仲裁地和适用规则是非常重要的。我们澳大利亚国际贸易仲裁中心已经通过各种措 施最大限度地减少了可能带来的延迟情况。

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19 The ACICA News - June 2012

The Hon Michael Kirby AC CMG ACICA Fellow and Board member

Book Review Malcolm Holmes Q.C and Chester Brown

The International Arbitration Act 1974: A Commentary (LexisNexis Butterworth’s, Australia 2011) ISBN: 978 0409 32 747 2 (pbk)

RRP$120.00

Luke Nottage and Richard Garnett, (Eds.)

International Arbitration in Australia (The Federation Press, Sydney, 2010) ISBN: 978 186287 805 1 (hbk)

RRP$145.00

Vivienne Bath and Luke Nottage, (Eds.)

Foreign Investment and Dispute Resolution Law and Practice in Asia, (Routledge, London, 2011) ISBN 178 0 415 61074 2 (hbk)

RRP$127.94

T

he commentary text by Malcolm Holmes and Chester Brown is an excellent book, mainly addressed to legal practitioners who may become involved in international commercial arbitration. Whereas other areas of legal practice, which afforded profitable opportunities and remuneration in earlier decades, have lately receded, professional work before arbitrators, mediators and other dispute resolution mechanisms is on the increase. An investment in this book, and a willingness to grasp every opportunity, is obviously an attractive course for Australian legal practitioners to take today.

Australian legislative regime, introduced by the International Arbitration Amendment Act 2010 (Cth). Whereas Nottage and Garnett adopt a style of descriptive chapters, written by individual authors with specialised knowledge in the several subjects dealt with, Holmes and Brown adopt an unabashedly practitioner-oriented approach. Theirs is essentially a highly detailed annotation of the governing Australian statute, with copious references to local and overseas authorities and cross references to other works, including international documents, foreign case law, local and international texts and legal commentaries.

The book is one of three that have lately been published which together afford an extremely useful insight into the developing world of international commercial and investment arbitration. Overlapping to some extent the subject matter of the book by Holmes and Brown is a text, edited by Prof. Luke Nottage (University of Sydney) and Prof. Richard Garnett (Melbourne University), International Arbitration in Australia. Cross references are handily provided to this work in Holmes and Brown. Both of these texts are designed to guide practitioners and parties engaged in international arbitration concerning the effect of substantial amendments to the

The third book in the series: Vivienne Bath and Luke Nottage (Eds), Foreign Investment and Dispute Resolution Law and Practice in Asia is not specifically addressed to Australian international arbitrations. Substantially, it comprises chapters by the editors, each of whom is a Professor at the University of Sydney, and by chosen collaborators, working in the field of international and Asian and Pacific law. The principal authors of this work also have practitioner experience.

For a rounded understanding of contemporary elements in, and arrangements for, international commercial and investment arbitration in Australia and its geographical

The ACICA News - June 2012

region, each of these three books affords an up-to-date, accurate and detailed analysis of what is clearly a game-changing shift in the way large and serious disputes of an international character are now being resolved. Even in countries, like Australia, where the judiciary is respected, professional and uncorrupted and can usually rise above purely nationalistic and parochial attitudes, litigation and the court system have simply not proved capable of responding adequately to the disputes and conflicts that inevitably arise (often of great magnitude) between contracting parties based in different jurisdictions.

With the growth of modern means of communications and transport and the rapid expansion of financial markets and capital flows between jurisdictions, trade and services between nations have vastly increased. The parties to these expanded dealings have generally been unwilling to tolerate the cost, delay, legal uncertainty and sometimes unreliability that judicial resolution of disputes exacts. In consequence, the international community has responded by offering international legal regimes to support procedures involving speedy, cost effective and hopefully predictable outcomes to commercial and investment disputes. This is where international arbitration and mediation come in.

Australia is no exception to these pressures.

Although its practitioners are aware of the merits of their litigious methods of dispute resolution, increasingly they are looking to the advantages of non-court determination of contests. If this has been a relatively slow development on the national scene, it has produced substantial and relatively speedy mechanisms in the world of international commerce and investment. It is to these developments that the three recent Australian texts address themselves.

This review is mainly concerned with the annotated legislative text produced by Holmes and Brown. As with the other two texts, the authors bring to their approach both the background of a busy legal practice as barristers and the discipline of teaching aspects of international commercial arbitration in Australian and other universities.

Malcolm Holmes, a senior counsel at the NSW and an arbitrator member of 20 Essex Street chambers in London and Singapore. He teaches at the University of Sydney and at UNSW and the University of Queensland. Chester Brown practises at the NSW and English Bar as well as in Singapore. Substantially, his day job is Associate Professor of Law at the University of Sydney. Clearly, that University, like others in Australia and elsewhere, has mapped out

a strategy to expand rapidly the instruction of future legal practitioners in the opportunities, and the knotty problems, presented by international commercial and investment arbitration.

As Australia’s AttorneyGeneral Lionel Murphy said 40 years ago, “Lawyers are survivors.

When one door closes, another is vigorously pushed open”. Not all arbitrators, mediators and ADR practitioners are lawyers. But many are.

And Holmes and Brown are at pains to demonstrate that the field of international arbitration presents many traps for new players. Their text, in particular, is designed to provide a readily accessible means whereby an intelligent person, venturing into the field, will have an instant resource of guidance on the statutory provisions that will govern them for Australia-based arbitrations and a sound background in the three important areas of international law that are now given effect by the Australian federal statute.

The most important comment to be made about the text by Holmes and Brown is that it has been produced with a particular reader in mind. Although on its cover the authors have declared, fairly, that it is “an essential inclusion in the library of anyone teaching, practising or working in international arbitration in Australia”, the real target of this book is a busy Australian reader (probably a legal practitioner but possibly a company officer, consultant, academic or student) who needs to have an answer to the question: what does the recently amended federal statute, the International Arbitration Act 1974 (Cth), have to say about a particular and specific subject that needs to be resolved. And needs to be resolved at once!

This is the added value of Holmes and Brown.

The layout of their book is quite excellent. The structure follows the several Parts of the 1974 updated Australian statute. To those sections is added three separate parts dealing with

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21 The ACICA News - June 2012

the three international sources found in the Schedules to the federal Act:

• The table of statutes is similarly well referenced;

• Schedule 1: The New York Convention (Convention on the recognition and enforcement of Foreign Arbitral Awards, made in New York on 10 June 1958); • Schedule 2: The Model Law: (The 1985 United Nations Commission on International Trade Law, Model Law on International Commercial Arbitration); and • Schedule 3: The ICSID Convention: (Convention on the Settlement of Investment Disputes between States and Nationals of other States, opened for signature 1965 and entered into force 1966).

That the foregoing was the structure of this text was virtually inevitable, given that it is a commentary on the updated1974 federal statute. To this extent, the structure of the text does no more than to reflect the structure of the statute.

• The description of the legislative background, given by the authors, is outstanding and essential because of the rapid changes that have been introduced to commercial arbitration, both international and national in Australia by reforming federal, State and Territory legislation in recent years: The text of the federal legislation is then set out, with ensuing remarks after each provision, including detailed commentary after each provision of the international sources collected in the three Schedules;

However, the merits and advantages of the text extend beyond the structure: • There is an excellent foreword by Justice James Allsop, President of the NSW Court of Appeal, a noted expert on international arbitrations. Many of his decisions are cited throughout the text (see e.g. Comandate (2006) in [s17-4] and Lipman’s case (2011) [s7-11]). Justice Allsop, at the threshold, explains why international commercial arbitration is so important and of benefit not just to lawyers and disputants but to the nation, its economy and “high national public policy”; • There is a splendid and very detailed table of cases with excellent cross references to help a practitioner track down the many citations that, in a statutory commentary, necessarily contains references to the same cases in different contexts;

L-R: Dr Chester Brown and Malcolm Holmes QC with CIArb Aust President and ACICA Fellow John Wakefield at their book launch

• In the margin, a dark side heading identifies the Part or Schedule to the federal Act that is being dealt with. This used to be a feature, much loved by judges and practitioners, of the publications of CCH Limited. Obviously, it has now spread to other legal publishers, even the distinguished and formerly somewhat traditional English house of Butterworth’s in Chancery Lane (now LexisNexis); • The header to each page contains in bold type the precise part and section of the Act to which the page refers; and • The index that brings the work to a close is also outstanding. It is detailed and extends in fine print over 10 pages with references to the appropriate paragraph numbers.

There are tiny quibbles. For example, the Index refers, in the German language, to the jurisdictional principle “kompetenzkompetenz”, whereas in several points of the text the principle is identified in the French language. But this is unimportant.

In a complex mass of legal data, a lengthy index covering the numerous repetitions of similar ideas (especially in the statute, the commentaries and the schedules) is absolutely imperative.

Not only do Holmes and Brown provide cross references to recent Australian works such as Nottage and Garnett. Correctly, they give references throughout to important and respected international commentaries on the Model Law (for example, HM Holtzmann and JE Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration, 1989 and C. Schreuer et al, The ICSID Convention: a Commentary (Second ed 2009)). But the authors have recognised that many Australian practitioners will not have immediate access to these texts. They have endeavoured in their commentary to cover the bases that a practitioner will need to know, at least before getting too deeply enmeshed in an international commercial dispute, governed the federal statute.

The ACICA News - June 2012

The Hon Michael Kirby AC CMG with from left to right: Editors of Foreign Investment and Dispute Resolution Law and Practice in Asia, Professors Vivienne Bath and Luke Nottage; Allens Partner, Nicola Nygh and Chapter author, Dr Salim Farrar

At the heart of the rapid development of international commercial and investment disputes are a number of problems which, correctly, the authors have addressed in their commentary, by reference to the many cases and textual citations that need to be read. One of these relates the need to ensure quality, integrity, competence and lack of bias in the arbitrator and the process. For all their imperfections of cost and delay, national judiciaries (at least in the most highly developed countries such as Australia) are chosen from a relatively small pool of lawyers, hopefully to ensure that these qualities are present. Without such pre-requisites, this is not invariable in the case of international arbitrators. In particular, a large number of those who are nominated by country parties to participate in investment disputes bring in decisions, almost inevitably, that are favourable to the nominator. The same has been true of Ad hoc judges of the International Court of Justice.

Shortly before Holmes and Brown’s text was published, the High Court of Australia delivered its anxiously awaited decision in Westport Insurance Corp v Gordian Runoff Ltd [2011] HCA 37. This is dealt with in the commentary on Sch 2, 31-3. The authors put the best face on the decision, emphasising that a number of the judges expressly stated that “the proper construction of the federal Act and the Model Law may be left for determination on another occasion”. But

other commentators, including the Attorney General of Singapore in an address to the ICCA conference in 2012, have picked up the conclusion of the High Court that the arbitral tribunal had given “inadequate reasons bearing in the mind the nature of the dispute and the particular circumstances of the case”.

Finding the right balance between a domestic court’s constitutional duties and a proper deference to international arbitration is vital to the economy and “high public policy”. It is not always easy. Overseas commentaries have picked up and quoted Heydon J’s remarks at [111] of Gordian Runoff, described as “scathing .... about the merits of arbitration”. Needless to say, the Singapore Attorney noted this in the context of describing the balance generally observed in his own country.

As a textual commentary, Holmes and Brown is thus an excellent book. For those who thirst for a more discursive commentary and reflection on the big themes Nottage and Garnett can be accessed. For those who want a supplement on the approaches in Asia to investment disputes, Bath and Nottage will provide excellent additional reading.

Because of the rapid growth of international commercial and investment arbitrations, it can be expected that future editions of all three texts will appear before long. This is a fast moving field, ever expanding. One idea for the second edition of Holmes and Brown would be an even more detailed general index.

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23 The ACICA News - June 2012

Another could be the addition, in the statutory commentaries, of cross references to the equivalent provisions of the legislation in force in the major trading partners and rivals in the region: including Hong Kong, Singapore, Malaysia and ROC. Each publisher has done an excellent job with these books. However, in reprinting Holmes and Brown, it might consider printing the actual text of the legislative provisions in darker typeface so that it is more readily distinguishable from the commentary.

There are useful references in Holmes and Brown to the role of the Australian Centre for International Commercial Arbitration (ACICA) as a “specified authority” under the federal Act, by force of the International Arbitration Regulations 2011 (Cth). More details about the ACICA Rules could be beneficial. Given that the book, as printed, closes with 10 blank pages, my own preference would have been for a bit more white on the pages, to allow a rest for the eyes in absorbing the content and the layout.

Dare I say it again; this has been a beneficial feature of CCH Ltd publications. While some lawyers might think this envisages ‘dumbing down’ legal texts, anything that can be done, particularly in statutory commentaries, to help the reader’s comprehension would be appreciated.

Finally, in a future edition, Holmes and Brown, with their considerable knowledge and experience, should be encouraged to begin a shopping basket for any future amendments to the federal statute that will be needed, as experience is gathered on the operation of the Act and of any teething problems that may arise. One beneficial idea could be to annex a good illustration of documents in a typical international case: supplementing the model for the Arbitration Agreement [Sch 2 art71] with a good illustration of a Model Award, illustrating what parties and their lawyers should be looking for and thus able to help all those engaged in the process to reach the

desired conclusive destination.

All three of the foregoing texts are excellent and useful additions to the practitioners’ library. The commentary by Holmes and Brown is deliberately practical and practitioneroriented. A knowledgeable and well armed legal profession is essential if Australia is to achieve its objective as a competitive venue for international commercial and investment arbitrations. Each of these books is an excellent contribution to achieving that worthwhile objective.

When he resigned in February 2009, from his office as a Justice of the High Court of Australia, Michael Kirby was Australia’s longest serving judicial officer. He had served successively as a Deputy President of the Australian Conciliation & Arbitration Commission (1975-83); Chairman of the Australian Law Reform Commission (1975-84); Judge of the Federal Court of Australia (1983-4), President of the Court of Appeal of New South Wales (1984-1996) and President of Court of Appeal of Solomon Islands (1995-6). He also served in many international bodies, including in OECD, the Commonwealth Secretariat, WHO, ILO, UNESCO, UNDP, UNODC and UNAIDS. He was president of the International Commission of Jurists (1995-8) and UN Special Representative for Human Rights in Cambodia (1993-6). Since his retirement from the High Court of Australia, he has served as President of the Institute of Arbitrators & Mediators Australia (IAMA) (200910); as General Editor of The Laws of Australia (2009-); Director and Fellows of the Australian Centre for International Commercial Arbitration (ACICA); as an honorary professor at 11 Australian and overseas universities; as a member of the UNDP Global Commission on HIV and the Law (2010-); appointed to the ICSID arbitration panel for the World Bank; and as a member of the Eminent Persons Group of the Commonwealth Secretariat on the future organisation of the Commonwealth. In June 2010, he was named co-winner of the Gruber Justice Prize.

Visit www.michaelkirby.com.au for more details.

The ACICA News - June 2012

chester brown ACICA Fellow

Chester Brown Wins OGEMID Award Evolution in Investment Treaty Law and Arbitration, Chester Brown and Kate Miles (eds.), (CUP 2011) has won the OGEMID Book of the Year.

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he OGEMID (Oil-Gas-Energy-Mining-Infrastructure-Disputes), a global online publication, brings together the world’s experienced professionals in the field of international dispute management, mainly arbitration, mediation, negotiation, with a particular emphasis on investment disputes.

Dr Brown, an Associate Professor at the Faculty of Law, University of Sydney, where he is a Program Coordinator for the Master of International Law, co-edited the book with colleague Kate Miles. ABC Chairman and former NSW Chief Justice, the Hon James Spigelman AC QC, launched the book on 17 April at the Sydney premises of ACICA Corporate member, King & Wood Mallesons.

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25 The ACICA News - June 2012

John Rundell ACICA Fellow

ICCA 2012 Singapore Over 1000 delegates from around the world descended upon Singapore to attend the 21st ICCA Conference, making it the largest international arbitral conference ever held.

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he who’s who of the international arbitration community was in attendance; with over 40 countries represented, from Austria to Zambia.

Approximately 150 Australians, many from ACICA, also attended.

Held at the Marina Bay Sands Integrated Resort from 10 - 13 June 2012, the conference provided an opportunity to meet and network with many of the leading international arbitrators and senior practitioners of the global law firms specialising in international arbitration.

The event was opened by the Prime Minister of Singapore, Mr Lee Hsien Loong. The strong support by the government and judiciary of Singapore was evident. Singapore has actively promoted itself as a supportive seat for arbitration. The Singapore International Arbitration Centre (SIAC) was heavily involved in the organisation and its chairman, Professor Dr Michael Pryles, was also the chair of the ICCA conference organising committee.

The theme of the conference was “International Arbitration: the coming of a New Age for Asia (and elsewhere)?” I think an exclamation mark would have been more appropriate than a question mark.

The Attorney General of Singapore, the Hon Sundaresh Menon SC, delivered the opening address and challenged the audience as to the need for greater regulation of arbitrators.

He also attributed arbitration’s rising popularity to its critical role in supporting the globalisation of trade; this coupled with the growing harmonisation of the ‘look and feel’ of arbitration, have made it “the natural choice

of dispute resolution mode that is written into international contracts”.

The address was followed by a panel discussion which featured global arbitration luminaries such as Gerold Hermann (Austria), Doug Jones AO (Australia), Julian Lew (UK), Kevin Kim (Sth Korea), Michael Moser (Hong Kong), Alexis Mourre (France), Lucy Reed (USA), Makhdoom Ali Khan (Pakistan) David Williams (New Zealand) and Ariel Ye (China).

The conference then broke into two streams: one focused on the arbitral process and the other on the legal regulatory and enforcement processes across jurisdictions.

One of the more interesting sessions was on lessons for the new technology age of international arbitration, moderated by William Slate from AAA. The title was “Let not what happened to newspaper-owners, book publishers and candlestick makers happen to arbitration practitioners….”

In addition to the interesting sessions and official functions, there were many social events hosted by various institutions to enjoy a drink and allow free flowing discussions.

John Rundell is Managing Director of Stratica International Pty Limited

The ACICA News - June 2012

The Prime Minister of Singapore, Mr Lee Hsien Loong, delivering the opening address for ICCA Singapore 2012-06-28

Over 1000 delegates attended the ICCA 2012 representative of over 40 countries including Australia

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27 The ACICA News - June 2012

Malcolm Holmes QC ACICA Board Member and Fellow

Philip Morris Asia Ltd v Australia On 15 May 2012 an international arbitration panel comprising Dr Karl-Heinz Bockstiegel (Germany, as chair), Professor Gabrielle Kaufman-Kohler (Switzerland) and Professor Donald McRae (Canada), was established to hear the Investor/State arbitration claim brought by Philip Morris Asia Limited, a Hong Kong based company, against Australia.

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his arbitration is the latest front in a long running global war between the tobacco industry and various government health authorities. This paper is to introduce the reader to Investor/ State arbitration and to the claim brought against Australia in the tobacco arbitration.

This requires first, a consideration of some of the basic concepts of Investor/State arbitration and secondly, an outline of the recent background leading to the claim against Australia.

parties and the BIT will contain promises of standards of protection which each state party will afford investors of the other state parties.

Basic Concepts

It is the dispute settlement provisions of the BIT which give rise to claims being made by individual investors of one contracting state party against the other contracting state party for a claimed breach of the BIT. The BIT thereby provides a means to enforce the substantive obligations imposed on the contracting states under the BIT by conferring on individual investors from a contracting state a private right to bring arbitration proceedings against the other contracting state in the event of a breach of the BIT.

Investor/State arbitration most commonly arises from the making, and subsequent alleged breach, of a bilateral investment treaty (BIT) made between two sovereign states (or, a MIT in the case of a multilateral investment treaty between several states such as the North America Free Trade Agreement, NAFTA and the Energy Charter Treaty, ECT). A BIT is no more than an agreement between two sovereign states and is subject to the principles of public international law.

Accordingly, Investor/State arbitration by bringing together aspects of both public and private international law, is a different kind of adjudication to international commercial arbitration.

The investor is not a contracting party to the BIT and this has given rise to the description that it is “arbitration without privity.�2 The claimant is always an individual investor and the respondent is always the host state. The host state is the place where the foreign investor has made its investment. The investor is a national of the other contracting state sometimes referred to as the investor’s home state. The host state and the home state are the contracting state parties to the BIT. The sovereign state involvement and the accompanying heightened public interest, usually results in the material relating to an Investor/State arbitration process being readily accessible on the internet.3

A BIT is generally designed to promote trade and investment between the contracting state

These substantive obligations and the right to bring a claim against the host state can act as

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a considerable inducement for international investors. An investor may make its investment in a particular host state through a vehicle set up and located in a contracting state party to take advantage of the protection afforded to investors from that state by the host state under an applicable BIT.

Off the Press

The Recent Background

The Commonwealth government and one of the world’s toughest litigators – Big Tobacco – this week squared off in the High Court in the opening round of the most legally and politically significant pieces of litigation in Australia this year.

In September 2009, Nicola Roxon, the then Minister for Health in the Australian Government, and now Attorney General, released the report of the National Preventative Health Taskforce which recommended plain packaging of tobacco products as part of a comprehensive regime of measures to reduce smoking in Australia. This followed a period when increasing measures had been taken to restrict the marketing of tobacco products in Australia. These measures initially including mandatory warnings and progressed to a prohibition of advertising these products and memorably in 1992, the banning of sports sponsorship by tobacco companies and their products (the end of the Winfield Cup for rugby league).4

The Proposed Legislation On 29 April 2010, Kevin Rudd, the then Prime Minister, and Nicola Roxon, then Minister for Health, jointly announced the adoption of the measures recommended by the National Preventative Health Taskforce. Their stated reason for these measures was the fact that: “Smoking kills over 15,000 Australians every year and is the largest preventable cause of disease and preventable death in Australia.

The social costs of smoking (including health costs) are estimated at $31.5 billion each year.”5 Included in the measures they announced, was “a world first”; a requirement that all cigarettes be sold in plain packaging by mid 2012. Legislation would “remove one of the last frontiers for cigarette advertising” and introduce plain packaging of tobacco products. The legislation would prohibit tobacco industry logos, brand imagery, colours and any promotional text on cigarette packets or individual cigarette sticks.

On 7 April 2011, the new Attorney General, Nicola Roxon6, released the draft legislation for plain packaging of tobacco products. In response Philip Morris Asia Limited (PM Asia) announced on 29 June 2011 that it would bring Investor/State arbitration proceedings against the Australian government under the bilateral investment treaty (BIT) made between Hong Kong and Australia.

No smoke without fire Marcus Priest The Australian Financial Review 27 January 2012

For the beleaguered Gillard government, not only is the future of its plain packaging legislation on the line but also the broader issue of its competence is in play – another loss in the High Court would be disastrous.

Having singled out the tobacco packaging litigation when appointing Nicola Roxon – who had carriage of the legislation as Health Minister – as Attorney-General, Prime Minister Julia Gillard has also made it a key test of the new first law officer – a former lawyer at plaintiff firm Maurice Blackburn.

For tobacco companies their ability to create the type of brand loyalty that has long been used to promote cigarettes through the likes of the Malboro Man and Joe Camel is at stake.

Beyond Australian shores, Big Tobacco may face similar public health measures elsewhere if the legislation is successful.

As a result, tobacco companies are fighting hard on a range of fronts. In the High Court, four tobacco companies – British American Tobacco Australia, Philip Morris, Imperial Tobacco Australia and Japan Tobacco International – are challenging the constitutional validity of the legislation claiming it acquires their intellectual property and trademarks associated with cigarette packaging without just terms compensation.

The tobacco companies can be expected to spend millions on the legal challenges as British American Tobacco Australia did in its fight with the estate of cancer victim Rolah McCabe over its “document management” policy. Last year, BAT gave a taste of things to come in the Administrative Appeals Tribunal and the Federal Court where it fought the Commonwealth’s claim of legal professional privilege over a piece of 1995 advice.

In the High Court, Big Tobacco has spared no expense – ITA is using Mallesons Stephen Jaques, JTI is using Johnson Winter Slattery, Philip Morris is using its long-term law firm Allens Arthur Robinson, while BATA is again using Corrs Chambers Westgarth, as it did in the McCabe case. Three of the country’s highestpaid barristers – Alan Archibald, QC, Allan Myers, QC, and Bret Walker, SC – have also been engaged.

The High Court has indicated the case can be heard in April, with all four applications being heard together. After a directions hearing this week before Justice William Gummow, the Commonwealth has until February 7 to serve its defence and the proposed facts of the special case to be heard.

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29 The ACICA News - June 2012

Australian AttorneyGeneral, the Hon Nicola Roxon, outside the High Court of Australia in Canberra

The Legislation PM Asia’s announcement did not stop the introduction of the legislation and on 6 July 2011 the Tobacco Plain Packaging Bill 2011 and the Trademarks Amendment (Tobacco Plain Packaging) Bill were introduced into the Australian Parliament. Both Houses of Parliament passed the Bills in November 2011, although because of a delay in enacting the legislation, the implementation of plain packaging was delayed until the end of 2012.7 The requirements of new legislation include; 1. no decorative ridges, no embossing and only rigid cardboard packs, 2. no colour packaging - all outer surfaces “must be drab dark brown” or as prescribed (s 19(2)(b)(ii)) 3. no use of Trade Marks- only the brand and any variant name and on one line 4. graphic health warnings - cover 75% on front and 90%on back

The Hong Kong-Australia BIT The Hong Kong Australia BIT, or more accurately, the “Agreement between the Government of Australia and the Government of Hong Kong for the promotion and protection of investments” was made between the two States in 1993.

The recitals to the Hong Kong Australia BIT record that the contracting parties desired “to create favourable conditions for greater investment by investors of one contracting

party in the area of the other” and that the contracting parties recognised that “the encouragement and reciprocal protection under agreement of such investments will be conducive to the stimulation of individual business initiative and will increase prosperity in both areas”.

The Substantive Obligations on the Host State The BIT contains a number of substantive or operative provisions including the agreement of both contracting parties that “investors of either contracting party shall not be deprived of their investments nor subjected to measures having effect equivalent to such deprivation in the area of the other contracting party except under due process of law, for a public purpose related to the internal needs of that Party, on a non-discriminatory basis, and against compensation” (Article 6(1) Expropriation). Expropriation in the sense used in Article 6(1) requires consideration as to whether there has been the deprivation or dispossession of property, whereas in contrast, the issues raised in the recent High Court proceedings brought by a group of tobacco companies including Philip Morris Limited, are concerned as to whether or not the legislation effects the “acquisition” of property “by” the Commonwealth without just compensation as required by s 51(xxxi) of the Constitution.

The contracting parties also agreed (Article 2(2)) to accord investments and return of

The ACICA News - June 2012

investors of each contracting party “fair and equitable treatment” and promised that such investments and returns “shall enjoy full protection and security”. The contracting parties agreed that they would not “in any way impair by unreasonable … measures the management, maintenance, use, enjoyment or disposal of investments in its area of investors of the other contracting party”.

Finally, Article 2(2) recorded the agreement between the contracting parties that they “shall observe any obligation it may have entered into with regard to investments of investors of the other contracting party.” A clause of this type, which seeks to bring other obligations such as arising under a private contract under the protection of the BIT, is known as an umbrella clause.

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Off the Press Who’s who in the battle over plain packaging Alex Boxsell The Australian Financial Review 18 April 2012

The Investor/State Arbitration Provision Article 10 of the BIT provides that any disputes between an investor of one contracting party and the other contracting party which has not been settled amicably, shall, after a period of 3 months from written notification of the claim, be submitted to arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL). Unlike some other BITs 8, the clause does not contain any condition precedent relating to a requirement to commence or exhaust remedies in the local courts before commencing an arbitration.

The Notification of the Claim Thus PM Asia on 27 June 2011 gave notification of a claim against Australia in which it stated that it was willing to meet and confer in an effort to achieve an amicable settlement, but if not settled in 3 months, then it intended to go to arbitration under the UNCITRAL Arbitration Rules of 2011. The notice, tacitly accepting that the three months of negotiations would be unproductive, proposed that in the event of arbitration Singapore would be the seat of the arbitration, there be three arbitrators and the Permanent Court of Arbitration at The Hague should be the default appointment authority.

Bret Walker outside the High Court on April 17. Photos: Penny Bradfield

The federal government is doing battle with some of Australia’s sharpest constitutional law minds as it seeks to defend its cigarette plain packaging legislation in the High Court.

A coalition of Big Tobacco companies with deep pockets has lined up in support of British American Tobacco Australasia, which lodged the initial claim against the government.

Also taking part is the Cancer Council of Australia and the attorneys-general of Queensland, the Northern Territory and the ACT. Bret Walker, SC, acting for Van Nelle Tabak and Imperial Tobacco Australia, is a regular name mentioned in any short list for appointments to the High Court when vacancies arise.

The Claimant: Philip Morris Asia Limited The Notice of Arbitration advised that the proposed claimant was PM Asia, which had been incorporated under the Hong Kong Companies Ordinance on 8 November 1994.

PM Asia was claiming as an investor as it was the owner of 100% of the shares in Philip

Allan Myers outside the High Court on April 17. Photos: Penny Bradfield

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Morris (Australia) Ltd (PM Australia) which in turn owned 100% of the shares in Philip Morris Ltd (PML) which is the owner or licensee of the intellectual property rights in Australia.

PM Asia’s investments in Australia, which it either owned or controls, were said to be PM Australia, PML and the intellectual property and goodwill. It was these investments, which it was said that Australia had undertaken to protect under the Hong Kong Australia BIT.

of Intellectual Property (the TRIPS Agreement, under Article 20 of TRIPS, the parties to this multi-national agreement agreed that the use of a trademark in the course of trade shall not be unjustifiably encumbered) and the Paris Convention for the Protection of Industrial Property (the Paris Convention) and the Agreement on Technical Barriers to Trade (TBT).

The main issues relating to the expropriation clause were twofold;

The Notice of Arbitration

did the BIT include indirect expropriation through the over-regulation of the product?

And,

There was no amicable settlement, the battle lines were drawn, and on 21 November 2011 PM Asia served a Notice of Arbitration pursuant to Article 10 of the BIT and Article 3 of the UNCITRAL Arbitration Rules on Australia. The notice claimed “Australia’s plain packaging legislation virtually eliminates Philip Morris’ branded business by expropriating its valuable intellectual property”. The notice went on to allege that through the plain packaging legislation Australia has violated the BIT by: i. substantially depriving PM Asia of the real value of its investments in Australia (para 7.3 of the Notice, a breach of the expropriation clause); ii. treating PM Asia’s investments unfairly and inequitably in the sense that the legislation was contrary to both the obligation not to impose disproportionate measures and the obligation to respect the investor’s legitimate expectations when it made its investment. The new legislation is unfair because it “has no demonstrable utility to improve public health” (para 7.7); iii. unreasonably impairing the full use and enjoyment of the investments (not impair the use of investments); iv. failing to provide full protection and security for the investments (full protection and security); and v. breaching its obligations under other international agreements (a breach using the umbrella clause). The other international agreements included the Agreement on Trade-Related Aspects

was such indirect expropriation, and if it was found, outside of the coverage of the BIT because it was designed and applied to protect legitimate public health and welfare objectives?

The relief claimed in the Notice was for compensatory damages “to be quantified but of the order of billions of Australian dollars” (Clause 8.3). The claim and the potential liability for Australia were a reminder that BITs although public law instruments, are like contracts, they are not photo opportunities between trade ministers, and they need to be precisely drafted so that both parties can confidently enter into them knowing the full extent of their obligations and potential liabilities. There was a suggestion that such a lesson had been learnt by Australia because in Australia’s later free trade agreement with Chile signed in 2008 the expropriation clause had an additional addendum, which stated: “Except in rare circumstances, nondiscriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment do not constitute indirect expropriations.”9

The Preliminary Jurisdictional Issues Australia’s Response to the Notice of Arbitration filed on 21 December 2011 raised

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a number of preliminary jurisdictional issues.

These included first, the claim by PM Asia was inadmissible because PM Asia did not have an investment at the time the dispute arose. the Response argued that the alleged investment, the claim and Australia’s enactment of plan packaging laws, must be considered against the backdrop of the Australian Government’s longstanding regulation and control of tobacco in Australia and its ratification of the World Health Organisation Framework Convention on Tobacco Control (the Framework Convention). The Framework Convention was adopted by the WHO in May 2003 and has since been signed by 174 State parties. Australia ratified the Convention on 27 October 2004 and it entered into force on 27 February 2005. The Framework Convention includes an obligation on each party to “undertake a comprehensive ban of all tobacco advertising, promotion and sponsorship” (Article 13(2)). The Guidelines for implementing Article 13 adopted in 2008 recommend that parties should consider a suite of measures including plain packaging.

This regulation of tobacco products was manifest in the announcement on 29 April 2010 of Australia’s decision to implement the plain packaging legislation, and the objections and complaints about the plain packaging legislation in the course of the remainder of 2010 and early 2011 by PM Australia, PML and also Philip Morris International Inc – the ultimate holding company for the Philip Morris Group. The response alleged that as PM Asia had only acquired its shareholding in PM Australia on 23 February 2011, the claim

by PM Asia was inadmissible. PM Asia did not have an investment at the time the dispute arose.

In brief, Australia claimed, “Article 10 of the BIT does not confer jurisdiction on an arbitral tribunal to determine pre-existing disputes that have been repackaged as BIT claims many months after the relevant government measure has been announced”.10 The Response claimed that the plain packaging legislation could not be regarded as a breach of the substantive obligations of the BIT because PM Asia made the decision to acquire the shares in PM Australia in full knowledge that the legislation had been announced. An investor cannot make a claim for a breach in circumstances where the host State has announced that it is going to take certain regulatory measures in protection of public health and the prospective investor fully advised of the facts then acquire some form of interest in the object of the regulatory measures, and the host State then acts exactly in the manner in which it said it was going to act.

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Off the Press Hard road for tobacco firms’ barristers Marcus Priest The Australian Financial Review 19 April 2012 Some of Australia’s top barristers struggled yesterday to convince openly sceptical High Court judges that the federal government’s plan to remove branding from cigarette packets was equivalent to stealing tobacco companies’ property rights.

Senior counsel for JTI International, British American Tobacco, Philip Morris, Van Nelle Tabak and Imperial Tobacco argued plainpackaging legislation deprived them of their ability to use their trademarks and that it acquired space on their cigarette packets without proper compensation.

In a hearing in which judges were given cigarette packs to examine, six of the seven judges appeared unconvinced by the arguments of tobacco companies. Several asked whether the government had acquired any property of tobacco companies by the legislation. Under the section 51(31) of the Constitution, the government can only acquire property on “just terms”.

“The Commonwealth does not have a right to use your trademark as a result of the legislation,” Justice Robert French said.

“Yes . . . but it deprives it of any value and it places its material in the place of our mark,” said Allan Myers QC, British American Tobacco’s barrister.

Judge Susan Crennan said the tobacco companies still retained the ability to use the trademark name, such as “Camel”, on a cigarette package, even though the typeface and size of the wording was determined by the new law.

“The name itself would be important to potential sale,” Justice Crennan said.

A number of judges compared the law to requiring the manufacturer of rat poison Rat Sack to display poison warnings on its products.

The Tobacco Plain Packaging Act 2011 prevents tobacco company using branding, logos, symbols and other forms of advertising on cigarettes or their packaging and enables the government to decide what will appear on the packaging.

JTI’s barrister, Gavan Griffith, QC, said the legislation would eliminate from the commercial landscape of Australia the application of the trademark and the distinctive packaging or “get up” of cigarette packets. As a result, it reduced tobacco company property rights to a “husk”.

“The Commonwealth law by its terms arrogates the power to substitute whatever message it chooses [on the package] which we say . . . is our billboard,” Mr Griffith said.

“It could have a message saying ‘pay your tax on time’ or ‘drive safely’.”

Bret Walker, SC, Imperial Tobacco’s barrister, said the space on the cigarette packages was ­valuable property which the government should pay to use to place public health warnings.

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The Response also argued that PM Asia’s investment did not qualify as an investment under the BIT because any such investment was required to be “admitted by the …

Contracting [State] Party subject to its law and investment policies applicable from time to time (Article1(e), definition of investment).

the Government’s laws.” As the plain packaging legislation was a valid law this substantive clause could not apply. As the legislation was the exercise of a discretion to regulate and introduce measures which are demonstrably reasonable, there could be no unreasonable measure as claimed by Philip Morris.

Australia also challenged the allegation that there had been a breach of the umbrella clause. The Response claimed that an arbitral tribunal established under Article 10 does not have jurisdiction under TRIPS, the TBT Agreement or Paris Convention because these treaties all contain their own dispute settlement mechanisms and it is not the function of Article 10 of the BIT to confer a “roving” jurisdiction on a BIT tribunal to make a determination that could potentially conflict with the determinations of the agreed settlement bodies which are given exclusive jurisdiction to determine disputes arising under those treaties11.

Full protection and security – The Response claimed that this provision is not a due diligence obligation to prevent damage and does not extend beyond an obligation to take reasonable steps to provide physical protection for investments.

In addition, Australia raised other grounds of defence on the merits including; Expropriation – there had been no deprivation of the investment and the legislative measures are non-discriminatory regulatory actions which do not amount to expropriation.

Fair and equitable treatment – PM Asia acquired its investment in the full knowledge and expectation that plain packaging measures would be introduced. As the government did exactly what it said it was going to do and there could be no legitimate expectation other than the government would act in accordance with its announcement. The measure was based on a broad range of studies and reports on which the Australian Government relied in good faith and was supported by leading Australian and international public health experts, and was adopted following a transparent process which included consultations with the tobacco industry.

Impairment by unreasonable measures – The claim ignored the express qualification contained in the BIT which added the rider to the substantive provision; “without prejudice to

New South Wales Bar Association Selborne Chambers 174 Phillip Street Sydney, New South Wales, 2000 Ph: +61 2 9232 4055 Fax: +61 2 9221 1149 | DX 1204 Sydney

Umbrella clause – The Response claimed that on a proper construction of the operative clause, it does not encompass general obligations in multilateral treaties and further, the particular treaties are not “entered into with regard to investments of investors in Hong Kong” and as a result do not fall within the wording of the clause.

The Uruguay Arbitration In hindsight, parallels can be drawn with an Investor/State arbitration arising out of a request for arbitration filed by Philip Morris (Switzerland) in February 2010 against the Republic of Uruguay12 when Uruguay enacted legislation requiring tobacco companies to comply with strict packaging measures.

The bilateral investment treaty involved in the Uruguay proceedings was made in 1991 between Switzerland and Uruguay. The investment (the tobacco company in Uruguay) was originally owned by a US corporation, Philip Morris Inc, from about 1979 and later transferred to a Swiss parent company. Some commentators have observed that sometime between 1999 and 2008 its ownership was moved to the Swiss-based holding company which then objected under the Swiss Uruguay BIT to Uruguay’s tobacco packaging legislation introduced in 2008 and 2009. The investor state arbitration was initiated against Uruguay in 2010 and a number of preliminary jurisdiction points have been taken by Uruguay and a decision by the tribunal on jurisdiction is awaited13.

The ACICA News - June 2012

An ICSID Arbitration In contrast to the Australian arbitration proceedings which are being conducted under the UNCITRAL Arbitration Rules (as might apply to any international commercial arbitration), the Uruguay arbitration proceedings have been brought under the International Convention on the Settlement of Investment Disputes between States and National of Other States (the ICSID Convention). The contracting state parties to the ICSID Convention agree under Article 25 to arbitrate “any legal dispute arising directly out of an investment, between a Contracting State … and a national of another Contracting State, which the parties to the dispute consent in writing to submit” to the International Centre for Settlement of Investment Disputes (ICSID).

In the Uruguay arbitration, the consent is found in the applicable BIT.

been taken by Uruguay. The issue relates to whether there is an investment as required by the ICSID Convention. Uruguay claims that the legislative measures were taken to combat the clear and present public health danger caused by tobacco use.

The Health Costs and an Investment

Uruguay alleges that there cannot be an investment because on one well established view an investment must contribute positively and significantly to the economic development of the host State.14 Accordingly, Uruguay has argued that there cannot be an “investment” as the tobacco interests actively impede and interfere with such development and the net effect of their presence is to harm Uruguay’s development. The health costs linked to smoking in Uruguay are said to amount to approximately $150 million a year and “more than 5,000 people die each year from smoking related illness.”15 The proceedings commenced on 26 March 2010 and last submission on the preliminary issues was filed with the tribunal on 20 April 2012. A decision on these preliminary issues is awaited.

As noted at the outset, the health costs occasioned by smoking were given as a reason for the Australian legislation. Interestingly in the Uruguay proceedings, the health costs of smoking form part of one of a number of preliminary jurisdictional points which have

Malcolm Holmes QC is a senior counsel based in Sydney (www.elevenwentworth.com.au) and is an arbitrator member of chambers at 20 Essex Street in London (www.20essexst.com)

1. A CPD paper presented to the NSW Bar Association on 18 June 2012. I would like to thank Hernan Pintos-Lopez for his assistance in preparing this paper.

2. “Arbitration Without Privity”, Jan Paulsson, 10 ICSID Review- Foreign Investment Law Journal 232-257 (1995) 3. In the present case see e.g.; http://www.ag.gov.au/Internationallaw/Pages/Investor-State-Arbitration---Tobacco-Plain-Packaging.aspx; and http://www.iareporter.com/articles/20111231_8, and http://www.smoke-free.ca/plain%2Dpackaging/history.htm.

4. e.g., Tobacco Advertising Prohibition Act 1992 (Cth) 5. Joint Press Release, 29 April 2010 6. A change brought about following the election on 21 August 2012 7. The legislation also included the Trade Marks Amendment (Tobacco Plain Packaging) Act 2011 (Cth) which included a “Henry VIII Clause” in s 231A, under which regulations may be made which may clarify or state the effect of the Tobacco Plain Packaging Act and may “be inconsistent with or prevail over the Act” (i.e., the Trade Marks Act).

8. E.g., Article 10(2) of the Switzerland-Uruguay BIT “… the dispute shall be submitted to the competent courts of the Contracting Party in the territory in which the investment is made. If within a period of 18 months after the proceedings have been instituted no judgment has been passed, the investor concerned may appeal to an arbitral tribunal which decides on the dispute in all its aspects.”

9. See also the carve out in Article 2(1) of the Switzerland Uruguay BIT which states relevantly “the Contracting Parties recognize each other’s right not to allow economic activities for reasons of public security and order, public health or morality, as well as activities which by law are reserved to their own investors”.

10. Para 7(a) of the Response. For a discussion of the distinction between “prospective nationality planning made in good faith before an investment” and an alleged abuse of process, see Pac Rim Cayman LLC v Republic of El Salvador, ICSID Case ARB/09/12, decision on jurisdiction, 1 June 2012, at para 2.19-2.20 and 2.99-2.100 11. Subsequently, Ukraine and Honduras requested WTO dispute consultations with Australia on 13 March and 4 April 2012 respectively in relation to Australia’s measures on tobacco plain packaging. Australia held consultations in Geneva with Ukraine on 12 April and Honduras on 1 May 2012 , see; http://www.dfat.gov.au/trade/negotiations/disputes/index.html 12. Philip Morris Brand Sàrl (Switzerland), Philip Morris Products S.A. (Switzerland) and Abal Hermanos S.A. (Uruguay) v. Oriental Republic of Uruguay (ICSID Case No. ARB/10/7) 13. The final submissions were filed on 20 April 2012 with the tribunal, Piero Bernardini (Italy) chair, and Gary B. Born (U.S.) and James R. Crawford (Australia) arbitrators.

14. Salini Construttori S.P.A. and Italistrade S.P.A. v Kingdom of Morocco, ICSID Case No ARB/00/4, Decision on Jurisdiction, 23 July 2001 (Briner, Cremades, Fadlallah) 6 ICSID Reports 398 at para. 52 15. Uruguay’s Memorial on Jurisdiction, paragraph 170

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35 The ACICA News - June 2012

Bjorn GehlE acica member

ACICA Rules Translation ACICA Arbitration Rules, incorporating the Emergency Arbitrator Provision, is now available in Arabic, Chinese and Korean - a first for an Australian institute.

A

fter several months of work we are proud to announce the publishing of the first foreign language translations of the new ACICA Arbitration Rules with the aim of making the rules accessible to a wider group of user from non-English speaking markets.

In addition to English the ACICA Arbitration Rules are how also available in Arabic, Korean and in Chinese. The main reason for choosing these languages as a first step is the growing markets for commercial dispute resolution in those countries and regions. Over the past decade Australia has significantly strengthened its relationships with those countries both on a political and commercial level. It is therefore a good time to expand these relationships and offer ACICA’s first class arbitration services to businesses in those regions. Given the language barriers that sometimes exist between those markets and the English speaking world we hope that the translations will make it easier for users in those countries to see the benefit in opting for arbitration proceedings under the ACICA Arbitration Rules where this becomes necessary.

The translation of legal text such as the arbitration rules brings about its own challenges. Terms that exists in one language down necessary exists in others or has carries a very different meaning. A good example is the translation of the provisions on the Emergency Arbitrator which were recently incorporated into the ACICA Arbitration Rules.

There is no unequivocal translation of the term Emergency Arbitrator in Arabic and one therefore has to find alternative ways of describing or defining this word. Similar

challenges have arisen during the translation into Chinese and Korean.

All translations have been prepared by native speakers and peer reviewed by at least two other legally trained native speakers so as to warrant that the legal terminology used in the translation is coherent with the interpretation in the relevant language. However, in order to avoid any dispute over ambiguities between the translated and the English versions, each translation contains a note that in the event of any inconsistency or difference between the English version and the translated version, the English version will prevail.

As both, Chinese and Arabic, are official languages of the United Nations the terminology used in those translations is guided by the terminology used in the official translations of the UNCITRAL Arbitration Rules as well as the UNCITRAL Model Law. While this circumstance made life for the translators and reviewers easier in many respects, we needed to ensure that where the particular language or terminology used in the ACICA Arbitration Rules differed from the UNCITRAL texts - in what sometimes may appear to be immaterial, but which in fact was a deliberate differentiation of the terminology chosen by the ACICA Rules drafting committee - that those differences were not ‘lost in translation’.

Recognition is due to all those who worked on the translation of the rules: Jun Wang, Orrick, Herrington and Sutcliffe (Chinese); Kyung-han Park, KCAB, Seung Min Lee and Benjamin Hughes both from Shin & Kim (Korean) and Amer AlQahtani, PhD Candidate, Macquarie University and Marie-Eliane Wakil and Ali AlKhasawneh both from Pinsent Masons LLP.

The ACICA News - June 2012

The Chinese version of the ACICA Arbitration Rules (2011) were a topic of discussion at the recent ACICA Shanghai and Beijing briefings

Although there has been no decision made yet into which other languages the ACICA Rules will be translated, we hope that we can soon see the rules being available in many different languages.

The Arabic, Chinese and Korean translations of the ACICA Arbitration Rules are available to download from the ACICA website: Arabic, Chinese and Korean.

Björn Gehle is a partner in Pinsent Masons Dubai office where he specialises on international commercial arbitration including trade, corporate and major infrastructure disputes.

Björn has significant experience in representing clients in international arbitrations under various rules including those of the ICC, DIAC, LCIA, ICDR, SIAC, ACICA and UNCITRAL. He has advised governments and private sector clients in many jurisdictions throughout Asia, Europe, Africa, the Middle East and Australia in relation to disputes involving major infrastructure projects such as airports, port facilities, railways, tunnels, hospitals and energy infrastructure. He also advises clients on matters involving international trade and foreign investment.

Prior to joining Pinsent Masons in 2011 Björn worked for major international law firms in Sydney, Frankfurt, Munich and London. Björn is qualified and admitted in both Australia (Barrister & Solicitor) and Germany (Rechtsanwalt).

ACICA Rules Booklet Containing all of ACICA’s current rules and model clauses, this booklet is an essential resource designed to assist and inform inhouse counsel, corporate lawyers and business professionals.

To order your copy email: secretariat@acica.org.au

ACICA Rules Incorporating clauses for arbitration and mediation

Australian Centre for International Commercial Arbitration

www.acica.org.au

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37 The ACICA News - June 2012

David Fairlie acica fellow and board member

Page 38: Manoel Presser Garcez accepting the Keith Steele Memorial Prize 2012 from ACICA Director, David Fairlie

ACICA Keith Steele Memorial Prize 2012 In 2010 ACICA donated a prize in perpetuity to the Sydney University Law School, in the memory of ACICA Vice President Keith Steele, who died suddenly in 2009.

T

he prize is awarded for the best essay submitted by a student in the International Arbitration course in the Law School’s Masters of Laws program.

This year the prize was awarded to Manoel Presser Garcez.

Manoel came to Sydney from Brazil in 2006, after completing his undergraduate law degree at UNISINOS, with honours, the previous year. His original plan was to have a “look see”, and earn enough money to sustain him in his passion for surfing.

He found an apartment at Dee Why, on Sydney’s northern beaches, and since then has been able to ride his board every day.

His other aim was to improve his English reading and writing skills, which he concedes were fairly basic when he arrived.

After a year or so, and a stint in retail, he decided to apply to enroll in Sydney University’s LLM program, and was accepted.

All of his electives have been in the international law area, and he has been very impressed

with the quality and the enthusiasm of the academic staff who have taken his courses.

As a result, his results have been outstanding, culminating in his ACICA essay prize. He was also awarded the prize for the best student, overall, in the international arbitration course.

His essay, entitled Party Autonomy International Arbitral Proceedings, accessible from the link below: http://acica.org.au/assets/media/ KeithSteelePrizeWinner2012.pdf Sadly, after he completes his degree at the end of the current semester, Manoel will be returning to Sao Paolo in September. Before then, he intends to do a little more sightseeing, and a lot more surfing.

His longer term aims are to work with a major international law firm or multinational corporation.

We wish him well.

David Fairlie is General Counsel at Competitive Foods Australia

‘Freehills remains a strong choice for complex commercial disputes.

It boasts an excellent presence across Australia…and can be found representing clients from a variety of sectors in all areas of dispute resolution, including international arbitration.’ Chambers Global Guide 2009 www.freehills.com

in is

The ACICA News - June 2012

38

Off the Press Man of steel and compassion James Eyers The Australian Financial Review 19 June 2009 Keith Steele | 1951 - 2009 He had a deep, earth-moving laugh, one that all who knew him will remember forever.

Memory of Keith Steele’s sense of humour will linger because it reflected the inspiring, rewarding and often amusing times his family, friends and colleagues spent with him.

Steele was a colossus within Freehills. He joined the firm in 1977 and with unrelenting energy, rose to become its pre-eminent dispute resolution partner.

In 1997, Steele was appointed as Sydney chairman and senior partner of Freehills, a post he held for four years. He spearheaded the firm’s national integration, which managing partner Peter Butler described this week in a eulogy as a “herculean effort”.

Kevin Broadley, a consultant at Freehills, said earlier this week that overseeing the firm’s national integration “sounds easy to do, but it was difficult, and Keith expended a huge amount of energy and effort putting it all together until ultimately in 2000, we finally achieved a fully integrated national firm”.

Read More

Review of international arbitration is welltimed Keith Steele The Australian Financial Review 5 December 2008 Keith Steele is a senior partner at Freehills, Sydney, and the senior vice-president of the Australian Centre for International Commercial Arbitration.

The global financial and economic crisis has not only put business and governments under great pressure, it has given cause to look more closely at the effectiveness and efficiency of dispute resolution systems and their ability to deal with the disputes that inevitably occur during such economic fallout.

Banking system bail-outs aside, government responses have emphasised the importance of freeing up world trade to pull the world out of deep recessionary threat, as seen at the recent Group of 20 industrialised nations and AsiaPacific Economic Co-operation group meetings.

It was timely, then, that Attorney-General Robert McClelland announced the commonwealth’s intention to modernise Australia’s laws for...

Read More

39 The ACICA News - June 2012

Jonathon DeBoos Clayton Utz

James Konidaris Herbert Geer

Willem C Vis Moot East and West 19 th ANNUAL WILLEM C VIS INTERNATIONAL COMMERCIAL ARBITRATION MOOT Vienna, Austria

30 March – 5 April 2012

9 th ANNUAL WILLEM C VIS (EAST) INTERNATIONAL COMMERCIAL ARBITRATION MOOT Hong Kong

19 - 25 March 2012

I

n March and April of this year the 19th edition of the Willem C Vis International Commercial Arbitration Moot was held in Vienna. This was preceded by the ninth edition of the Willem C Vis (East) International Commercial Arbitration Moot held in Hong Kong.

The growth of these two events over the last 19 years has seen them become fixtures not just on the academic calendar, but also on the calendars of many practitioners in the field of international arbitration.

ACICA and Australian universities have a long association with both events and have developed extremely strong reputations by virtue of their consistent success in each. This year was no different.

As many readers will know, the work for the two Vis Moots starts in October when the problem is released and teams start work on their claimant memoranda. These are then exchanged in December and teams begin work on their memorandum for the respondent.

Submission of the respondent memoranda in January is by no means the end of the work, as teams must then refine their arguments and advocacy skills in the lead up to the oral rounds in Hong Kong and Vienna.

Report on Hong Kong (James Konidaris) It has been amazing to see the Vis East Moot grow over the years. My first experience was at the Second Vis East, where a humble 18 teams competed from 8 countries. This year, in its ninth year in Hong Kong, the Moot attracted 90 teams from 26 countries! Australia certainly did not get lost in the crowd and was well represented by 7 teams: Bond University, Deakin University, Edith Cowan University, Griffith University, La Trobe University, University of Canberra and University of Sydney.

La Trobe was the most successful of the Australian teams, triumphing over the University of Hong Kong and Albert-LudwigsUniversität Freiburg en route to the semi finals, where it was defeated by City University of Hong Kong. City U then went on to defeat the University of Houston in an impressive final.

Erik Dober and Paul Bekier both received honourable mentions for La Trobe, and the team was thrilled with its efforts.

Marcus de Courtenay and Nigel Thomas, representing Bond University, successfully defeated Pepperdine University in the final rounds, but the University of St Gallen did not

The ACICA News - June 2012

allow them to progress beyond the quarter finals. Marcus received an honourable mention and the team (consisting also of Adam O’Brodovich and Benjamin Ettinger, and coached by Louise Parsons and Rupert Pedler) was very proud to have been awarded the Eric Bergsten Award for the Best Claimant’s Memorandum. The highlight for Louise was the good spirit in which the competition took place: “Even though the awards are fiercely contested, in this competition winning is truly not everything – it’s about the participation and the fantastic experience that have longterm benefits”.

As in the past, the Vis East Moot was not only a great success, but enjoyed by all.

Report on Vienna (Jonathon DeBoos) Incredibly the Vienna moot grew yet again, with 280 universities from 67 countries competing.

Australia was ably represented by teams from Deakin University, Griffith University, La Trobe University, University of Sydney, University of NSW and Victoria University.

The finals were contested between the top 64 teams, with La Trobe University, University of Sydney and University of NSW making it through.

The first round pitted La Trobe against Queen Mary, University of London, University of Sydney against Macedonia’s Ss Cyril and Methodius University and UNSW against Montevideo University (last year’s runner up). La Trobe and UNSW made it through that round, with University of Sydney’s speakers Ramya Krishnan and Sriram Srikumar finding themselves on the wrong end of a split (2-1) decision.

In the round of 32, La Trobe came up against University of Münster and UNSW was opposed to Touro Law Center. UNSW was able to make it through, but unfortunately Münster edged La Trobe’s team of Lauren Burke and Nico Baarlink in a very high quality moot.

That left UNSW, represented by speakers

Claire Macdonald and Edmond Lo, as the only Australian team in the round of 16.

Unfortunately it was unable to get past Denmark’s Aarhus University, who went on to come in equal third overall.

The final was fought out between University College London and NALSAR University of Law from India, with the team from Hyderabad prevailing.

This year, in its ninth year in Hong Kong, the Moot attracted 90 teams from 26 countries!

Australia certainly did not get lost in the crowd and was well represented by 7 teams.

Australian universities did not leave the awards ceremony empty handed, with Deakin and Sydney Universities receiving Honourable Mentions for their respondent memoranda and Daniel Fletcher, Ramya Krishnan and Sriram Srikumar from University of Sydney all receiving Honourable Mentions in the individual oralist category.

This was my first time attending the moot since participating in 2005 and I was very impressed by the high quality of the advocacy skills, the collegial and international atmosphere of the moot and Australia’s strong representation in both the finals and (just as importantly) the official moot bar.

Jonathon DeBoos is a Senior Associate at Clayton Utz and Deputy Secretary General of ACICA and James Konidaris is a lawyer at Herbert Geer.

Both were part of Deakin University’s Vis Moot team in 2005.

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41 The ACICA News - June 2012

Bond University: Louise Parsons (Coach), Nigel Thomas, Adam O’Brodovich, Benjamin Ettinger, Marcus de Courtrnay and Rupert Pedler

La Trobe University: Andrew Vincent, Paul Bekier, Magda Karagiannakis (Coach), Lauren Burke, Eric Dober, Satu Aho and Nico Baarlink

The ACICA News - June 2012

Deakin University: Rebekah Case, Professor Schwenzer (Coach) Priya Parghi, Daniel Fullerton and Preeti Sharma

UNSW: Edmond Lo, Bella Khabbaz (Coach), Claire Macdonald, Hannah Glass, Arthur Kam in front of the Peace Palace, The Hague.

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43 The ACICA News - June 2012

Kyle Dickson-Smith acica member

Global View: Updates from The Americas The impact of Australia’s policy on investor-state dispute resolution clauses could affect the negotiations on the Trans Pacific Partnership (TPP) Agreement.

R

ecently, these provisions have been a stumbling block in the last round of talks for the TPP Agreement. The TPP agreement is an Asia-Pacific regional free trade agreement. The negotiations involve nine nations that include Australia and the United States.

The talks recently entered their 11th round of negotiations in Melbourne, Australia.

While Australia and the United States intend to have the agreement completed by the end of 2012, they are now at odds over whether investor-state provisions should be included.

These provisions, which are included in various free trade agreements, allow an investor to bring a claim directly against the host state for unfairly interfering with its investment.

While the United States wants to include these provisions, the Australian government has vehemently opposed them. Trade Minister investor-state dispute settlement provisions has angered various business associations, both in the US and in Australia.

Businesses argue the provisions give companies more legal certainty to take action against states. The Australian Chamber of Commerce and Industry (ACCI) said it wanted the investor-state dispute settlement provisions included. The ACCI’s director of trade, Bryan Clark, has stated: “We think the Australian government’s approach of non-inclusion is poor policy and leaves Australian firms exposed when they are doing business overseas ...We urge the government to reconsider its position on ISDs and negotiate all aspects of the TPP (agreement) in good faith and in support of Australian business interests.’’

Chevron - Where Have the Plaintiffs Enforced?

Where I left the matters, in my update of March 2012, I asked where the 30,000 Lago Agrio plaintiffs would attempt to enforce their US$18.2M judgment against Chevron that was granted in the Ecuadorian courts.

It was likely that the plaintiffs would try to enforce that judgment in a country with close ties to Ecuador and one which would likely overlook the current investor-state arbitration proceedings- in which the Tribunal granted a global anti-enforcement injunction against Ecuador.

The plaintiffs, however, recently attempted to enforce in Ontario, Canada.

In May, the Lago Agrio plaintiffs filed a Statement of Claim in the Ontario Superior Court to enforce the judgment. That attempt is somewhat surprising and interesting, for at least two reasons.

First, the Ontario Superior Court has demonstrated that it will not enforce a foreign judgment where it is uncertain that the judgment debtor (Chevron) had a reasonable opportunity to be heard in the original proceedings, which is likely to be invoked

by Chevron.

Second, Chevron has limited assets in Canada, particularly in Ontario. The plaintiffs are attempting to attach the assets of Chevron Canada Ltd and Chevron Canada Financial Ltd, two wholly-owned subsidiaries of Chevron.

It is understood that the Lago Agrio plaintiffs are also looking to enforce the judgment against Chevron assets located in Panama

The ACICA News - June 2012

Leaders of the Trans Pacific Partnership member states, including Australian Prime Minister, the Hon Julia Gillard and US President, Barack Obama, at a TPP summit in 2010

and Venezuela. Whether the plaintiff will succeed in attaching any assets in Canada, that remains uncertain.

If you would like a copy of the Statement of Claim, feel free to contact me.

Judge - Arbitrators Under Scrutiny (Delaware) As reported in The Wall Street Journal (20 February 2012), there has been some controversy appointing judges as arbitrators in Delaware. In 2009, the State of Delaware enacted legislation that authorizes judges sitting on the Delaware Court of Chancery, the highest profile court in the United States specialising in business matters, to arbitrate business disputes, provided that at least one Delaware business entity is involved and the parties agree.

Last October, the citizens group, Delaware Coalition for Open Government, commenced an action in Delaware federal court to suspend Court of Chancery arbitration, on the ground that it deprives the public of its right of access to trials.

A system of judge-appointed arbitrators raises interesting implications in arbitration law. A benefit to parties using Court of Chancery arbitration is that the parties have their disputes

resolved by experienced, specialised umpires.

Another benefit is that the resulting awards are more likely to be enforced overseas, compared to Delaware court judgments. However, to be enforceable, the arbitration must constitute an “arbitration” within the meaning of the New York Convention. While the process is consensual and confidential in order to qualify as an “arbitration” under the NY Convention, it is the confidential nature of the process that has been the target of criticism. In particular, commentators have complained that this court-arbitration process reduces the amount of available precedent on Delaware corporate law, for other companies to follow, and it generally erodes public accountability of the court system. The process steps “toward a two-tier court system, in which the wealthy get secret justice on a fast track, while others [get] messy public processes,” says Paul Kirgis, a professor of ADR at St. John’s University.

The verdict, on whether the Court of Chancery arbitration will remain, is still outstanding.

A finding against the Chancery judges would likely end Delaware’s experimental process.

Kyle Dickson-Smith, MCIArb, is an international arbitration lawyer at Appleton International Lawyers, who practises in both Australia and Canada, and specialises in investment treaty disputes and commercial arbitrations. He can be reached at kdicksonsmith@appletonlaw.com

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45 The ACICA News - June 2012

Peter McQueen amtac chair

Australian Maritime & Transport Arbitration Commission

T

here has been a change in the AMTAC with Foundation Executive Stephen Bouwhuis now based in London as the Legal Counsel (Institutional Matters) for the Commonwealth Secretariat. We thank Stephen for his contribution and welcome replacement, John Reid Assistant Secretary, Office of International Law at Attorney General’s Department.

Peter McQueen

Chair Arbitrator and Mediator, Sydney

Dr Sarah Derrington

Vice Chair Barrister at Law, Brisbane

Tony Pegum

Vice Chair Australian representative Mitsui O.S.K. Lines, Perth

John Reid

Vice Chair Assistant Secretary Attorney-General’s Department, Canberra

Australian Shipping Industry Reform Update: Tony Pegum In September 2011 the Hon Anthony Albanese, the Federal Minister for Infrastructure and Transport, announced a new shipping policy designed to revitalise the Australian shipping industry under the headline “Stronger Shipping for a Stronger Economy”. These suggested reforms recognise a serious decline in Australian fleet numbers, an ageing fleet and a significant increase in the use of foreign flagged/manned vessels carrying cargoes between Australian ports.

The key elements of the reform include: • Tax reforms to encourage investment in Australian shipping • A simplified regulatory framework and a transparent licensing regime • Establishment of an Australian International Shipping Register (AISR)

• Establishment of a Maritime Workforce Development forum to progress key maritime skills and training priorities These bills were passed by the Australian House of representatives on the 31st of May. The regulations are due to come into force 1 July 2012.

What does it all mean? There are three distinct but complementary reforms aimed at encouraging direct investment in Australian flag shipping, providing a second register to enable Australian controlled shipping to compete internationally and linked to the reforms (and incentives) is the creation of a scheme to attract more training and sustainable jobs in the local maritime sector.

Attracting Investment The Government has introduced a tax incentive package. The Shipping Reform (Tax Incentives) Bill will provide for the following:

The ACICA News - June 2012

• Accelerated Depreciation – from 20 to 10 years • An income tax exemption (ITE) for Australian operators on shipping income; • A refundable tax offset for Australia employers who employ eligible Australian seafarers; and • An exemption from royalty withholding tax for foreign owners of eligible vessels leased under a bareboat or demise charter to an Australian operator.

A key element of the Government’s reform package is the mandatory training requirement as part of the requirements to obtain the ITE.

Coastal Trading Reform The single voyage permit (SVP) system which currently provides exemptions for nonlicenced (foreign flag/operated) vessels to carry cargo interstate will be no more. This system is to be replaced by a new system providing for three types of licences 1. General licence 2. Temporary licence 3. Emergency licence The general licence provides for vessels registered under the General Shipping Register.

The temporary licence will be required for known movements over a 12 month period.

Applicants will be required to provide details regarding the vessel, type and volume of cargo(es) expected to be carried, the ports of call and dates of carriage. Importantly, applications will be published on the Department’s website (devoid of commercial in confidence material) to enable general licence holders to respond to the application in case they are able to carry the nominated cargo. In some ways this is similar (but more formal and forward looking) to the veto rights under the existing SVP system where a licenced operator can object to a foreign vessel seeking to carry a coastal cargo.

Any existing foreign flagged/Australian licenced vessels currently trading on the Australian coastline are to transition to the new regime within a 5 year period.

Second Register The Shipping Registration Amendment (Australian International Shipping Register) Bill is to establish an alternative register, the Australian International Shipping Register (AISR).

The AISR is being established to encourage Australian companies to participate in international trades. This is facilitated by mixed crewing arrangements subject to there being two senior personnel holding Australian citizenship or residency.

The Fair Work Act 2009 and Seafarers Rehabilitation and Compensation Act 1992 will not apply to AISR ships while undertaking international voyages.

Ships registered in the AISR will be eligible for the tax exemption and other tax incentives.

This also applies to ships registered on the General Register.

Ships registered in the AISR will be subject to the same maritime safety, environmental and OH&S standards that apply to ships registered in the General Register.

Only Australian-owned trading ships, or trading ships on demise charter to Australianbased operators may be registered in the AISR.

Comment: This new legislation represents a very significant overhaul of the Australian maritime sector (excluding the offshore sector) and a significant strengthening of cabotage regulation. At its heart is the hope of new ships coming on to the coastline to replace the foreign flag vessels operating under the SVP regime. Secondly is the job training/creation hope and expectation.

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47 The ACICA News - June 2012

Whilst these reforms are extensive it remains to be seen whether it will encourage more competition along the coastline. Arguably the tax concessions are quite dramatic for such a small industry sector and it does reposition Australian policy somewhat closer to some Asian maritime sectors. There is some concern amongst industry that there may be less competition resulting from these new laws. It is this element which concerns some industries who suggest a loss of competitiveness may push some manufacturing off-shore resulting in an increase in directly imported goods.

Freight markets fluctuate and at the moment the dry bulk and tanker sectors are weak and in some cases returns are below operating break-even levels. Whether investment can be attracted to populate the AISR register at this time remains to be seen.

From an AMTAC perspective the prospect of a rejuvenated Australian maritime industry engaged in local and international trading should provide greater opportunity for the conduct of maritime arbitration in Australia especially as the legislative framework is already in place.

ICMA 2012 Sarah Derrington and I were among over 100 attendees representing 16 jurisdictions and national maritime arbitration bodies at the International Congress of Maritime Arbitrators (ICMA) conference held in Vancouver between 13 and 17 May 2012 They

each presented papers entitled, “Recognition and enforcement of foreign arbitral awards in Australia” and “Damages in addition to demurrage”. Both papers will appear on the AMTAC website www.amtac.org.au. The next ICMA conference will be in Shanghai in 2015.

Forthcoming Events in 2012 International Maritime Law Arbitration Moot Competition (IMLAM) 6-10 July 2012 Brisbane. Further details relating to arbitrator registration at www.murdoch.edu.au/maritimemoot/ registration_arbitrator.html.

Maritime Law Association of Australia and New Zealand Annual Conference 13-14 September 2012 Brisbane. Further details at www.mlaanz.org.au.

AMTAC Annual Address 2012 25 September 2012 Brisbane and videocast to Adelaide, Melbourne,Perth and Sydney.

“The Prospects for International Arbitration in Australia” Speaker The Hon.P A Keane Chief Justice Federal Court of Australia. Further details at www.amtac.org.au.

Comite Maritime International (CMI) Conference 14-19 October 2012 Beijing and 20-22 October 2102 Shanghai. Further details at www.cmi2012beijing.org.

The ACICA News - June 2012

Amtac Annual Address 2012 The Chair of the Australian Maritime and Transport Arbitration Commission (AMTAC) Peter McQueen invites you to attend the AMTAC Annual Address 2012.

The Prospects for International Arbitration in Australia Guest speaker: The Hon P A Keane - Chief Justice, Federal Court of Australia

About Patrick Keane Patrick Keane was awarded the degree of BA by the University of Queensland in 1973.

In 1976 he was awarded the degree of LL.B. (Hons.) with First Class Honours and the University Medal in law. In 1977 he was awarded the degree of B.C.L. (Oxon.) with First Class Honours, and the Vinerian Scholarship and J.H.C. Morris Prize. In December 1977 he was admitted as a Barrister of the Supreme Court of Queensland appearing principally in commercial and constitutional cases. In November 1988 he was appointed Queen’s Counsel. From 1992 to 2005 he was Solicitor-General for Queensland. On 21 February 2005 he was appointed to the bench of the Court of Appeal, Supreme Court of Queensland. On 22 March 2010 he was appointed Chief Justice of the Federal Court of Australia. On 8 December 2011 he was awarded the Degree of Doctor of Laws honoris causa by the University of Queensland.

Tuesday 25, September 2012 5.15pm for 5.30pm, concluding by 6.30pm AEST Federal Court of Australia Harry Gibbs Commonwealth Law Courts Building, 119 North Quay, Brisbane

The Federal Court of Australia will videocast the Address to the following locations: Adelaide, address broadcast at 5.00pm local time Federal Court of Australia, Courtroom, Roma Mitchell Commonwealth Law Courts Building, 3 Angas St, Adelaide Melbourne, address broadcast at 5.30pm local time Federal Court of Australia, Courtroom, Owen Dixon Commonwealth Law Courts Building, 305 William Street, Melbourne Perth, address broadcast at 3.30pm local time Federal Court of Australia, Courtroom, Peter Durack Commonwealth Law Courts Building, 1 Victoria Avenue, Perth Sydney, address broadcast at 5.30pm local time Federal Court of Australia, Courtroom, Law Courts Building, Queen Square, Sydney

RSVP by 17 September 2012 to: ACICA Secretariat, Level 16, 1 Castlereagh Street, Sydney NSW 2000 P:02 9223 1099 F: 02 9223 7053 E:annhipwell@disputescentre.com.au For further information about AMTAC and Australian dispute resolution clauses visit www.amtac.org.au

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49 The ACICA News - June 2012

L-R: The Hon Bruce Debelle, Doug Jones AO, Ian Nosworthy (ACICA Board Member and Fellow) and Andrew Robertson (ACICA Fellow)

Commercial Arbitration Act: South Australia At the Law Society Professional Development Centre on 11 April 2012, South Australian dispute resolution practitioners were introduced to the new Commercial Arbitration Act.

O

n 1 January 2012 South Australia joined New South Wales and Victoria with the commencement of the new Commercial Arbitration Act. The impact of this legislation for arbitration was discussed at this event chaired by retired Supreme Court Justice, the Hon Bruce Debelle with ACICA President Doug Jones AO, providing the principal paper for the evening.

Further commentary was provided by local practitioner and ACICA board member and Fellow Ian Nosworthy together with ACICA Fellow Andrew Robertson.

A joint presentation from the Law Society of South Australia, the Chartered Institute of Arbitrators and the Institute of Arbitrators & Mediators Australia, the event received strong support from those who attended and those who accessed the proceedings by webinar.

The level of interest was demonstrated in the questioning and discussions generated by the papers which covered a range of topics

representing the viability of arbitration as a dispute resolution process: the limiting of disclosure, the flexibility of the use of expert witnesses, limiting time hearings, modern approaches to pleadings and a review on the judicial decisions on the Acts to date.

The South Australian profession hopes to hold further joint events in the future and continue to attract high calibre speakers to promote arbitration, and other forms of appropriate dispute resolution.

The ACICA News - June 2012

L-R: Craig Colvin SC, The Hon Chief Justice Wayne Martin AC, Kanaga Dharmananda, Paul Evans, Doug Jones AO, Simon Davis and Scott Ellis

Commercial Arbitration Act: Western Australia On 24 May 2012 the Western Australian Bar Association, in conjunction with the ACICA and Charterd Institute of Arbitrators hosted a seminar on the new Commercial Arbitration Act (WA).

H

eld at the Conference Suite, Francis Burt Chambers in Allendale Square, the seminar was aimed at educating and informing local dispute resolution practitioners and other professionals interested in arbitration, about the proposed new Act. The Commercial Arbitration Bill will shortly complete its passage through the WA Parliament.

Once it enters into force the Commercial Arbitration Act 1985 (WA) will be repealed and the new Act will form part of a new uniform domestic arbitration regime based on the UNCITRAL Model Law on International Commercial Commercial Arbitration Acts bringing in the new regime are already in force in New South Wales, Victoria and South Australia. The new regime will be different from the old regime in many respects, and some of the changes are quite radical.

Attracting over 100 delegates, the seminar was chaired by the President of the Australian Bar Association, Craig Colvin SC. Presentations were delivered by senior arbitrators such as ACICA President Doug Jones AO, and Perthbased barristers: Simon Davis, Kanaga Dharmanada SC, and Scott Ellis, and WA State Solicitor, Paul Evans, on topics such as drafting an effective clause under the new Act and arbitration in construction disputes. The Chief Justice of WA, the Hon Wayne Martin AC provided commentary.

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51 The ACICA News - June 2012

Page 51 L-R: Doug Jones AO, the Hon Nick Greiner AC, Chairman of NSW Infrastructure and Peter Brecht, Managing Director, Construction, Lend Lease and President of Australian Constructors Association Page 52: The Hon RJL (Bob) Hawke AC Prime Minister of Australia (1983 – 1991) delivering the After Dinner Address at the NSW Art Gallery Photos: Rick Stevens

12th Annual DRBF International Conference - Sydney, Australia The Dispute Resolution Board Foundation (DRBF) in conjunction with its Australian branch, the Dispute Resolution Board Australasia Inc (DRBA) held its 12th International Conference, The Benefit of Dispute Boards to Major Projects on 3 – 5 May 2012.

T

he international event was brought to Sydney by Doug Jones AO, in his capacity as DRBA President, and the DRBA Committee. Hosted for the first time in Australia, it attracted support of major industry bodies and professional associations including ACICA and brought together speakers, delegates and sponsors from across Australasia, Europe, North and South America, Asia, the Middle East and Africa.

Guest Speakers included: The Hon Nick Greiner AC, former NSW Premier and current Chairman of NSW Infrastructure; Geoff French, Managing Director of URS ScottWilson and President FIDIC (Federation of Consulting Engineers) and the Hon Bob Hawke AC, Prime Minister of Australia (1983 – 1991).

The Dispute Resolution Board Foundation (DRBF) is a leading global membership organisation dedicated to promoting the use

of the Dispute Board (DB) concepts to assist contract parties to improve the outcome of their projects. In the last two decades, the DB process has emerged as a highly effective means of avoiding and resolving disputes in major construction and commercial projects, improving outcomes in terms of delivery time and out-turn cost.

The value of Australian and New Zealand DB projects, completed or underway, is now in excess of $10 billion.

In Sydney, the DRB process has facilitated a number of difficult projects, including the Sydney Desalination Plant, several projects associated with the upgrade of the Sydney Electrified Rail, the Port Botany Expansion and the Barangaroo Development.

To access papers and images of the conference, please visit http://www.drbfconferences.org/

The ACICA News - June 2012

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Off the Press Dispute resolution boards provide ‘insurance’ for PPPs Michaela Whitbourn The Australian Financial Review 5 May 2012 NSW Premier Barry O’Farrell’s chief infrastructure adviser has pointed to the need for dispute resolution panels in public-private partnerships to prevent potential conflicts from erupting between government and industry.

“Every big and public foul-up with a major piece of infrastructure makes the next one that little bit harder to get off the ground,” Infrastructure NSW chairman Nick Greiner told a dispute resolution conference in Sydney on Friday.

Mr Greiner, a former NSW premier and treasurer, said the state government would likely use dispute resolution boards – panels of independent experts such as architects and lawyers – during construction of the $8.5 billion North West Rail Link to prevent or resolve disputes in major contracts.

Wynyard Walk, a pedestrian link between Wynyard Station and the Barangaroo Precinct in the Sydney CBD, already had a dispute resolution board in its contract.

Mr Greiner said the boards were “an insurance policy against the possibility of a dispute that disrupts work”, helping to ensure projects were delivered on time and on budget. “In a lazy media cycle where the easy story about the dispute going on between the government and a contractor is the one that gets written, it’s very important that we have a way of nipping any potential for conflict in the bud,” he said.

The boards cost just 0.1 to 0.2 per cent of the total cost of projects over $100 million, he said.

Former premier goes to bat for DRBs Andrew Jennings Lawyers Weekly 8 May 2012 Dispute Resolution Boards (DRBs) will play an increasingly prominent role in major infrastructure projects in Australia in the future, a former NSW premier has said.

Nick Greiner (pictured centre), the current Infrastructure NSW chairman and former Liberal premier of NSW, has said it’s likely a DRB will be used during the construction of Sydney’s north-west rail link to ensure the project is completed without conflict between the parties involved.

“The north-west rail link, which is being prepared at the moment, is expected to use DRBs on its major contracts,” Greiner told delegates at the 12th Annual Dispute Resolution Board Foundation (DRBF) Conference in Sydney on 4 May. Read More

53 The ACICA News - June 2012

L-R: ACICA Fellows, Colin Wall (Hong Kong) and Graham Easton (Australia), were guest speakers

ACICA Board Member and representative for ACICA Corporate Member, Allens Linklaters, John Cooper (Australia), Jim Perry (France) and Minter Ellison’s Ian Briggs (Australia)

The ACICA News - June 2012

Victorian Bar member, George Golvan QC (Australia) and consultant to Norton Rose, John Sharkey AM (Australia) were also guest speakers

ACICA Board Member and representative for ACICA Corporate Member, Corrs Chambers Westgarth, Robert Regan (Australia) and DRBA Treasurer, Ron Finlay

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55 The ACICA News - June 2012

L-R: Graeme Peck (Conference Committee Chair), Geoff French (President of FIDIC and Managing Director URS Scott Wilson), Aisha Nadar (Member of FIDIC Update Task Group and Research Fellow, Construction Contracts) and Richard Kell AM (Consulting Engineer, Project Manager and Director of Cardno International Pty Ltd)

DRBF and DRBA Boards: Sitting: DRBF President Roger Brown (USA) and DRBA President Doug Jones AO (Australia); Standing: Graham Easton (Australia), Harold V McKittrick (USA), Ron Finlay (Australia), Volker Jurowich (Germany), Romano Allione (Italy) and Graeme Peck (Australia)

The ACICA News - June 2012

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Off the Press Lawyers and clients told to embrace DRBS on major projects Olivia Collings Australasian Legal Business 8 May 2012 Lawyers have been urged to to learn and promote the use of DRBs (dispute resolution boards) on major projects by leading infrastructure specialists.

Read More

Resolution of disputes the key to getting infrastructure built Nick Greiner The Australian 9 May 2012

Doug Jones AO welcoming delegates from across Australasia and around the world to the first DRBF International conference hosted in Australia

ONE of the problems of the past decade or so has not just been that the NSW government and public service have failed to come up with answers to the problems of our major infrastructure; it’s also that there’s been a real failure to ask the basic questions.

We’ve had some projects: the Sydney port upgrade and the desalination plant are good examples. But problematically, these projects aren’t part of a wider vision for NSW. Port infrastructure, for example, doesn’t exist in a vacuum separate to road infrastructure.

If you’re a business owner and it takes forever to get the goods you’ve imported, you don’t particularly care whether the delay was caused by bad port infrastructure or the fact that the delivery driver had to spend hours battling traffic. Whatever the cause, it’s cost you money.

And so this tendency to look only at one part of the bigger picture has meant that we haven’t, for a long time, had a cohesive vision of what infrastructure we need and that’s a very basic question we need to answer before we can start to build it.

Infrastructure NSW was formed to start a productive conversation about that bigger picture. And having worked in the public and private sector, I can tell you one key part of delivering infrastructure is being able to get it done without major disputes between contractor and client. That’s particularly important in the context of major works of public infrastructure, where the government is spending not just actual capital, but also political capital, and the .

Read More

Rail projects to be built without disputes The Hon Nick Greiner AC delivering the keynote address: Dispute Resolution, Dispute Avoidance: DRBs in NSW Infrastructure

4 May Read More

57 The ACICA News - June 2012

judith levine ACICA Board Member

Member Profile: Judith Levine Legal Counsel, Permanent Court of Arbitration, The Hague

J

udith Levine is Legal Counsel at the Permanent Court of Arbitration, headquartered in The Hague. She just returned from a 1-year posting to Mauritius where, in addition to ongoing case work, she worked on educational and outreach activities to promote PCA international dispute resolution services and Mauritius as an arbitral venue in the African region. From 2003-2008, Judith was an attorney at White & Case LLP in New York, representing states and corporations in ICSID, ICC, AAA and UNCITRAL arbitrations; and individuals in pro bono litigation. Judith’s prior roles include law clerk at the International Court of Justice, adviser to the Australian Attorney-General, and associate at the High Court of Australia.

Judith has lectured for UNSW, the Chartered Institute of Arbitrators and served on Australia’s delegation to UNCITRAL Working Group II. She holds a BA/LLB (University Medal) (UNSW) and LLM (Hauser Scholar and Fulbright Award) (New York University).

What traits make a good arbitrator?

What/Who inspired your interest in arbitration?

I occasionally have a nightmare that I have to re-sit the New York bar exam.

After my year working at the International Court of Justice, I was keen to get started with the hands-on practice of law, but to do so in a field that still offered some exposure to public international law. I also wanted to live in New York City. Working for an arbitration group at a global law firm offered all of this, a diversity of public and private law issues, and some great travel opportunities! Those who helped point me in that direction were Judges Thomas Buergenthal and Charles Brower. Once I was in New York, Paul Friedland, at White & Case, was a terrific mentor.

Integrity, intelligence, independence, openmindedness, and organisational skills.

Refer to an historical conflict you wish you could have participated in and why?

I consider myself lucky not to have participated in conflicts of an historic scale. More important is trying to prevent what’s happening on our watch right now – for example in Syria and Sudan.

What is your idea of perfect happiness?

It changes. Right now, it would be spending a sunny morning in The Hague relaxing at a beach café in Scheveningen with my husband, good coffee and a newspaper, and our two little boys joyfully play in the sand next to us.

But a few years ago that would have seemed quite boring, and perfect happiness might have been exploring a new city all by myself.

What is your greatest fear?

What is your greatest extravagance?

Taking most Wednesdays off work to spend time with my little ones.

What do you consider the most over-rated virtue?

In the context of international arbitration practice, I would say overzealous advocacy.

I see lawyers harming their own client’s cause when they try to fight every single little battle, rather than focusing on the key issues in dispute.

The ACICA News - June 2012

Judith Levine at the Peace Palace, The Hague

Which living person do you most admire?

Dame Rosalyn Higgins – former President of the ICJ. Such a wonderful scholar, lawyer, judge. She’s had an exemplary national and international legal career but also managed to balance a life outside of work.

What is your favourite journey?

Best travel experiences include hot air balloon ride over the Masai Mara, the Salkantay Trek to Macchu Pichu, swimming in the Caribbean beside the Tulum ruins, camel ride in Rajasthan, cycling through rice paddies in Hoi An, driving across the Southwest USA, and the sensory explosion of the Djemaa el-Fna marketplace in Marrakesh. But my “favourite journey” is probably the descent home into Sydney when you fly low over the harbour before coming into land.

What is your favourite piece of music?

Bach’s Cello Suite No. 1 and Mendelssohn’s Violin Concerto in E Minor. My favourite soundtracks are Stealing Beauty, Garden State and a CD compilation of music from Woody Allen films. And I never tire of Amy Winehouse, Chris Isaak or Frank Sinatra.

What is your favourite piece of literature?

Hard to narrow it to one piece. But my favourite authors include Ian McKewan, Jonathan Safran Foer, Vikram Seth, F. Scott Fitzgerald, and Jhumpa Lahiri. When travelling I enjoy the Number One Ladies’ Detective Agency series by Alexander McCall Smith, and I loved the Australian book Grand Days by

Frank Moorhouse about a young Australian woman moving to Europe to work for the League of Nations.

What is your favourite film?

Top choices include Annie Hall, Crimes and Misdemeanors, L’auberge espagnole, Dirty Dancing, Marathon Man, Groundhog Day, Dangerous Liaisons, and Lantana … a mixed bag! These days I have less time for movies and get my entertainment in 42 minute fixes of quality TV, like Mad Men.

What credo/maxim/motto inspires you?

The marble floor of the entrance foyer of the Peace Palace is inlaid with the words Sol Justitiae Illustra Nos (“Light of Justice, Shine Upon Us”)… so that provides a bit of inspiration as I enter the office each day, along with all the other symbolic artwork and tributes to peace-makers and jurists throughout this incredible building I have the privilege to call my workplace.

What is your greatest fear?

I occasionally have a nightmare that I have to re-sit the New York bar exam.

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59 The ACICA News - June 2012

A selection of the latest news on international arbitration and mediation from around the world

Global News Yudhoyono Ready to Face International Arbitration Over Mine Dispute

British Mining Firm Sues Indonesia for Asset Seizure

Arientha Primanita The Jakarta Globe 29 June 2012

Sara Schonhardt The New York Times 6 June 2012 Churchill Mining has explored for coal in East Kalimantan, Indonesia, despite the political risks.

President Susilo Bambang Yudhoyono said on Thursday that he and the country were ready to face international arbitration over a multi-billion dollar suit filed by British miner Churchill Mining Plc concerning its operations in East Kalimantan.

“I hope I will win because I don’t want multinational corporations to do whatever they want with their international force, pressuring developing countries such as Indonesia,” Yudhoyono said before opening a cabinet meeting at his office.

Churchill Mining Plc is seeking $2 billion from the Indonesian government for revoking its mining concessions on four of its affiliates in the East Kutai district of East Kalimantan.

Churchill is taking the president, the head of the East Kutai district, the Foreign Ministry, the Energy and Mineral Resources Ministry and the National Investment Coordinating Board to court over the case.

Yudhoyono said that the case, which will be arbitrated by the International Center for Settlement of Investment Disputes, will serve as a lesson for regional administrations in resource rich areas.

“Just imagine, we have hundreds of district [like this]. If we are the one wrong, the implications would be extraordinary,” Yudhoyono said, adding that he believes the district chief was in his right when he revoked Churchill’s concessions.

“We are obligated to defend our honor, truth and justice,” the president said.

JAKARTA, Indonesia — When David F. Quinlivan visits Indonesia, he carries stacks of documents and a wellworn map of a mining concession in East Kalimantan province marked with a dizzying array of timelines and arrows. They are his weapons in a two-year battle with Indonesia’s judicial system.

Since 2010, Mr. Quinlivan, the chairman of Churchill Mining, has been fighting over rights to a $1.8 billion coal project in the Indonesian portion of Borneo, an island laden with valuable mineral deposits.

On May 22, the British company’s lawyers filed for arbitration at the International Center for Settlement of Investment Disputes in Washington, which was established to settle international disputes.

Churchill is seeking $2 billion from the Indonesian government, claiming that the regional government in East Kalimantan seized its assets without proper compensation.

“This is another phase of the legal process,” Mr. Quinlivan said.

Churchill’s troubles have attracted the attention of other mining companies and highlighted the uncertainties of investing in Indonesia.

Analysts say that new regulations for the mining industry could sharply increase the costs of doing business. Among the new rules is one that would require foreign companies to divest themselves of majority control of their mining projects within 10 years of starting production.

Another would impose a 20 percent tax on exports of 65 unprocessed minerals and metals, including nickel, tin and gold.

Read More

The ACICA News - June 2012

melbourne 27-28 MARCH 2014

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apragmelbourne2014.org

‘ MELBOURNE – The World’s Most Liveable City 2011 ’ (The Economist Intelligence Unit)

SAVE THE DATE

APRAG 10TH ANNIVERSARY CONFERENCE

WHEN: 27-28 MARCH 2014 WHERE: MELBOURNE, AUSTRALIA The Australian Centre for International Commercial Arbitration (ACICA) is honoured to be the official conference host and organiser of the 10th Anniversary APRAG Conference in 2014.

As Australia’s only international arbitration institute, ACICA welcomes friends and colleagues to join us in celebrating APRAG’s achievements and exploring opportunities and challenges for the next decade.

The conference will take place in Melbourne.

An international business destination of 19th century grandeur, and 21st century innovation, it is a city renowned for its vibrant art and cultural life, leading events and festivals, sport and racing, high fashion, cafés and fine dining, and is an hour away from the world renowned wineries and pristine beaches of the Mornington Peninsula, the Yarra Valley and the Great Ocean Road.

For updates, visit: apragmelbourne2014.org and www.acica.org.au

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Board Members and Secretariat President

Vice Presidents

Treasurer Board Members

Doug Jones AO RFD Ian Govey Khory McKormick Peter Megens Tony Samuel Angela Bowne SC Rob Buchanan John Cooper John Digby QC David Fairlie Warren Fischer Richard Garnett Laurie Glanfield AM Tim Grave Malcolm Holmes QC The Hon Michael Kirby AC CMG David Kreider Judith Levine Chris Lockwood Peter McQueen GabriĂŤl Moens Ian Nosworthy Georgia Quick Rashda Rana Robert Regan Donald Robertson Ronald Salter Michael Shand QC

Secretary General

Michelle Sindler Head Office Level 16, 1 Castlereagh Street Sydney NSW 2000, Australia P: +61 2 9239 0700 F: + 61 2 9223 7053 E: secretariat@acica.org.au

Deputy Secretary General

Jonathon DeBoos Melbourne Office Level 18, 333 Collins Street Melbourne VIC 3000, Australia P: +61 3 9286 6328 F: +61 3 9286 6460 E: jdeboos@acica.org.au

Deputy Secretary General

GabriĂŤl Moens Perth Office Western Australian Institute for Dispute Management South Street, Murdoch WA 6150, Australia P: +61 8 9360 7563 E: gmoens@acica.org.au

Media and Publications

Gianna Totaro P: +61 (0) 438 337 328 E: gtotaro@acica.org.au

The ACICA News - June 2012

ACICA gratefully acknowledges the kind permission given by journalists and editors whose valued work is kindly reprinted in this edition.

The ACICA News is a quarterly update published in March, June, September and December. All contributions are welcome and should be sent to: Gianna Totaro gtotaro@acica.org.au ACN 006 404 664 | Copyright 2011 Australian Centre for International Commercial Arbitration

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www.acica.org.au

Australian Centre for International Commercial Arbitration

The Australian Centre for International Commercial Arbitration (ACICA) is Australia’s only international arbitral institution. A signatory of co-operation agreements with over 50 global bodies including the Permanent Court of Arbitration (The Hague), it seeks to promote Australia as an international seat of arbitration. Established in 1985 as a not-for-profit public company, its membership includes world leading practitioners and academics expert in the field of international and domestic dispute resolution. ACICA has played a leadership role in the Australian Government’s review of the International Arbitration Act 1974 (Cth) and on 2 March 2011 the Australian Government confirmed ACICA as the sole default appointing authority competent to perform the arbitrator appointment functions under the new act. ACICA’s suite of rules and clauses provide an advanced, efficient and flexible framework for the conduct of international arbitrations and mediations. Headquartered at the Australian International Disputes Centre in Sydney (www.disputescentre.com.au) ACICA also has registries in Melbourne and Perth.

ACICA Corporate Members