the acica news - june 2012

The ACICA News - June 2012 1

ACICAnews

THe

Australian Centre for International Commercial Arbitration

June 2012

THe ACICA news June 2012 | Vol 4 | no 2 ISSn 1837-8994

Leader in international dispute resolution

ArTICle PAGe

Presidents Report Doug Jones AO ............................................................................ 1

Secretary Generals 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

12th Annual DRBS International Conference ...........................................................51

Member Profile: Judith Levine ............................................................................... 57

Global news ............................................................................................................. 59

events ...................................................................................................................... 60

Contents

Publisher: Australian Centre for International Commercial Arbitration

Editor: Gianna Totaro

Designer: Sheree Shepherdson (www.spsdesign.com.au)

The ACICA news - June 2012

The ACICA News - June 20121

ACICA China InitiativeMarking 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 Asias 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 ACICAs 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:

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.

Presidents Report

DoUG JoNES Ao ACICA PRESIdENT


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

Given the importance of China and our focus on Asia, the feedback has been exceptional. ACICA successfully demonstrated Australias legal culture, arbitration laws, arbitral rules, facilities, wealth of talent among our lawyers and arbitrators.

IFCAI and ACICAI am pleased to announce I have been elected to the Executive of the International Federation of Commercial Arbitration Institutes (IFCAI) www.institutionalarbitration.org. The IFCAIs 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 Australias position and those of our members.

APrAG 10th AnniversaryACICA will host a special international conference in March 2014 in celebration of the 10 year anniversary of APRAGs 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 APRAGs existence and APRAGs 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 co-ordinated the successful bid.

ACICA Membership and BoardSince 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 firms representative on the Board. Allens Arthur Robinson, in an alliance with Linklaters, has now been rebranded as Allens Linklaters. We thank

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

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

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 resultif negotiations are successfulin 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.


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.

Secretary Generals Update

MICHELLE SINDLER ACICA SECRETARy GENERAL

As 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. dont 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 workshopWe 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 AGs 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

www.cliffordchance.com

Global arbitration expertise with local knowledgeWith 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, [email protected] Grave, Sydney, +61 2 8922 8028, [email protected] Landis, Perth, +61 8 9262 5512, [email protected] Dreosti, Sydney, +61 2 8922 8072, [email protected]


Australian InternationalDisputes Centre

A: Level 16, 1 Castlereagh Street Sydney NSW 2000P: +61 (0) 2 9239-0700F: +61 (0) 2 9223-7053E: [email protected]

Visit and Book Onlinedisputescentre.com.au

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

ACICA Voluntary Intern schemeIn 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 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 [email protected]. 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

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 AustraliaThe 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

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

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

investmentswww.claytonutz.com

This Australian firm is renowned for its work as counsel and as arbitrator. Chambers Asia, 2009

Queens 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 Queens Birthday Honours

ACICA President Made an officer of the order of Australia

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


PUBLIC INTEREST MONITOR

The Victorian Government is seeking expressions of interest for appointment as the Principal Public Interest Monitor and Deputy Public Interest Monitors under the Public Interest Monitor Act 2011 (the Act).

The object of the Act is to provide an additional safeguard in relation to applications for warrants, orders or approvals to use certain covert or coercive investigative powers, such as surveillance devices and telecommunication intercepts.

The Act requires a person making a relevant application to provide specified information to a Public Interest Monitor. The functions of a Public Interest Monitor are to:

appear at any hearing of a relevant application to test the content and sufficiency of information relied on and the circumstances of the application; and

for the purposes of testing the content and sufficiency of information relied on and the circumstance of the application, to ask questions of any person giving information in relation to the application, and to make submissions as to the appropriateness of granting the application.

Under the Act, the Principal Public Interest Monitor is responsible for reporting annually on the operation of the Public Interest Monitors, and may issue Guidelines about how a Deputy Public Interest Monitor is to perform his or her functions.

A Public Interest Monitor will need to respond to relevant applications at short notice, including out of hours applications.

Public Interest Monitors will also be subject to statutory confidentiality provisions, be obligedto avoid actual or potential conflicts of interests and required to adhere to strict security standards.

A successful candidate will need to be an Australian legal practitioner and must not be: a Member of Parliament; the Director of Public Prosecutions, Solicitor for Public Prosecutions, any person appointed under the Public Prosecutions Act 1994 or employed in, or seconded to, the Office of Public Prosecutions; a person who is eligible to make a relevant application or who is employed in or by, or seconded to, a body that is eligible to make a relevant application.

Candidates will be required to undertake relevant security clearances, and may be appointed for up to three years on a full-time or part-time basis. Terms and conditions of appointment will be set out in the instrument of appointment.

Expressions of interest should be submitted by 18 May 2012 to Marisa De Cicco, Executive Director, Strategic Policy and Legislation, Department of Justice, Level 26/121 Exhibition Street, MELBOURNE 3000, or via email [email protected].

Respondents are requested to indicate whether they are interested in the position of Principal and / or Deputy Public Interest Monitor, and whether they are available on a full and / or part-time basis. A position description may also be obtained from the above address.

Confidential enquiries may be made to Ms De Cicco on (03) 8684 0803 or 0411 020 795.

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

FRIDAY, MAY 4, 2012 P29www.theaustralian.com.au/business/legal-affairs

UK MOVE TRIGGERS PUSH FOR CHANGE

Contingencyfees back onthe agendaCHRIS MERRITLEGAL AFFAIRS EDITOR

THE British governments deci-sion to introduce US-style contin-gency fees has triggered a push forAustralian lawyers to be given thesame right to take a proportion ofwhat their clients win in court.

The move for contingency fees,outlawed in every state, is backedby top lawyers from plaintiff firmSlater & Gordon and corporatefirm Clayton Utz.

Slater & Gordon managingdirector Andrew Grech and Clay-ton Utz chief operating officerStuart Clark both said contin-gency fees were a way of puttinglawyers on the same footing aslitigation-financing companiesthat already took a proportion oftheir clients damages awards.

Mr Grech said the changes inBritain were a response to con-cern about the gradual disman-tling of civil legal aid, which hadalso taken place in Australia.

He said contingency fees werea fairer way of rewarding lawyerswho took on high-risk casesagainst big companies.

He said they were not neededin personal injury cases, butwould ensure solicitors wereproperly compensated for the riskinvolved in financing high-riskclass actions against big com-panies.

Mr Clark said Australian com-panies in Britain would face anincreased risk of litigationbecause of the introduction ofcontingency fees.

There is no doubt that this isyet another step towardsAmerican-style litigation, hesaid. There is no doubt that it willdrive an increase in litigation.

But the fact that litigation-funding companies in Australiawere taking a proportion of whattheir clients won in court meantcontingency fees had alreadyarrived.

I cant understand why it isconsidered bad for lawyers to usecontingency fees while it is con-sidered good for litigation-fundingcompanies todo thesamething, Mr Clark said.

If it is good enough for a pub-licly owned corporation to enterinto contingency fee arrange-ments with their clients, what onearth are the policy reasons forprohibiting lawyers from enteringinto the same arrangement?

I would prefer to see lawyersentering into contingency feearrangements rather than pub-licly owned corporations that arenot boundby theethical consider-ations of a lawyer.

Mr Clark, also a senior litigator

and head of an industry lobbygroup for large law firms, said hisviews were not the official pos-ition of the large law firm group.

But if lawyers could use contin-gency fees, the extra competitionwould force litigation-fundingcompanies to reduce theircharges.

With a lack of competition,the proportion of damages thatfunders can demand increases a good example is the Brisbaneflood litigation, he said. Itspretty hefty.

In that case, more than 2000victims of last years Brisbanefloods have signed funding agree-ments with IMF (Australia) thatwould give it up to 30 per cent ofany ex-gratia payments receivedafter January 1 next year, or afterthe company began proceedings.

The changes in Britain, due tocome into forcenextApril,will seethe introduction of a contingencyfee system known as damages-based agreements.

The Law Society Gazette ofContinued on Page 30

Arbitrators eye regional market

DAN HIMBRECHTS

Doug Jones, the president of the Australian Centre for International Commercial Arbitration, in Sydney yesterday

CHRIS MERRITT

AFTER years of effort, Australiais on the brink of establishing thenational legal infrastructure thatis intended to give this country agreater share of the boomingmarket for international com-mercial arbitration.

Right around the nation, legis-lation governing commercialarbitration has been overhauledand brought into line with inter-national standards.

The new laws are based on therules of the UN Commission onInternational Trade Law.

That network is intended toensure that Australian commer-cial arbitrators develop expertisein the UNCITRAL rules.

Over time, the goal is todeepen the pool of expertise

available for private commercialarbitration and attract moreinternational arbitration work.

Bills enacting the new laws areeither in force or before parlia-ment in every state exceptQueensland, where a delay due tothe state election is expected to beovercome soon.

Much of the lobbying that ledto the new network was under-taken by Doug Jones, who is thepresident of the AustralianCentre for International Com-mercial Arbitration.

If we can rise to the challengeof using the model law to offerinnovative processes, we willcompete more effectively withinthe region, he said.

To help ensure Australian ar-bitrators do tap that regionalmarket, Mr Jones was part of a re-cent delegation to India aimed at

persuading that countrys lawyersand business leaders to includearbitration clauses in new inter-national contracts naming Aus-tralia as the venue for resolvingdisputes.

He sees this rather thanattempting to undertake com-mercial arbitrations within Indiaasthemostpromisingaspectofthe Indian market.

The thing about India is thatthere are a hell of a lot of goodlawyers. And taking lawyers toIndia is a bit like taking coals toNewcastle, in my view, he said.

Success in this venture is diffi-cult to gauge because of the inevi-table time lag between the in-clusion of an Australia clauseand the need for that clause to beexercised.

But, with the growing numberof commercial transactions with-

in the Asia-Pacific region, MrJones is spreading the word thatmore of that work should stay inthe region instead of creatingwork for the arbitrators of Parisand London.

In this market, some may viewSingapore and Hong Kong aspotential rivals, but on anotherlevel Mr Jones believes the inter-ests of all three jurisdictions are inalignment.

Singapore and Hong Konghave done a great job of buildingthemselves as credible centres ofarbitrationwithin theregion.Andalthough we are competing, weare all, together, trying to draw toour region the disputes arisingfrom the trade in our region.

The opportunity of doing thatis enhanced by the existence of anumber of credible, neutral seatsfor arbitration.

Roxon ordersreview ofaid funding

Source: National Legal Aid. Excludes funding for Community Legal Centres

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NICOLA BERKOVIC

ATTORNEY-General NicolaRoxon has ordered a majorreview of legal aid funding,ahead of next weeks tightfederal budget.

Allen Consulting Group willconduct the independent reviewof the commonwealthsinvestment in the legalassistance sector.

Ms Roxon said the review, tobe completed by June 30 nextyear, was aimed at ensuring thecommonwealth delivered themost cost-effective legalassistance to those most in need.

Labor has a strong traditionof providing better access tojustice for Australian families,Ms Roxon said.

Our commitment of morethan $1.3 billion in legalassistance funding is the largestcommitment in over a decadeand is making a real differencearound the country.

The cash-strapped sector haslong complained about thecommonwealths contributionto legal aid funding, which wasslashed during the Howardgovernment era and subjectedto restrictive rules enablingcommonwealth funding to be

spent only on commonwealthlegal matters. Since then thestates have been forced to makeup the shortfall.

While before 1997 thecommonwealth provided mostfunding to the sector, in 2010-11its funding of $193 million waseclipsed by $256m from thestates.

After Victorian legal bodieswarned of an impending crisisfor legal aid services, stateAttorney-General Robert Clarkthis week announced an extra$26m a year for legal aid overfour years. He attacked theGillard governments cost-shifting on legal aid, and calledon it to contribute its fair shareto the sector.

But the national partnershipagreement between thecommonwealth and the legalassistance sector is not up forreview until next year, andexpectations are low that nextweeks federal budget inwhich the government hasvowed to achieve a $40bn fiscalturnaround to deliver a surplus will contain new goodies forthe sector.

In 2010, former attorney-general Robert McClellandannounced a $154m injection ofnew funding to legal aid,community legal centres andAboriginal legal services overfour years. But there was a tussleover the way in which themoney was divided between thestates.

Call formodellitigantreviewCHRIS MERRITT

THE Rule of Law Institute hascalled for an early review of thefederal governments model liti-gant rules after the High Courtruled in the James Hardie liti-gation that the AustralianSecurities & Investments Com-mission should not be penalisedfor failing to call a key witness.

The institutes chief execu-tive, Richard Gilbert, said theASIC decision had cleared thedecks for an independent reviewof the model litigant rules, pref-erably by the Australian LawReform Commission.

The High Court overturned adecision of the NSW Court ofAppeal that ASICs evidenceagainst seven former non-executive directors of JamesHardie should be discountedbecause the corporate regulatorhad breached its duty to act fairlyby failing to call the witness.

The witness was former Al-lens partner David Robb, whohad been described by the Courtof Appeal as an important andavailable witness.

The High Court ruled thatfailing to call Mr Robb to giveevidence about disputed boardminutes had caused no un-fairness to seven former non-executive directors of JamesHardie who were facing legalaction by ASIC. And, even if ithad caused unfairness, it wouldbe wrong to respond by dis-counting other evidence.

The six-judge majority judg-ment concluded that it wasneither necessary nor desirableto explore in any detail thesource and content of the duty toact fairly.

The model litigant rules,which are part of the Legal Ser-vices Directions administered bythe Attorney-Generals Depart-ment, requireall federalagenciesto conduct their legal affairs withefficiency and fairness.

The call for a review of therules comes soon after the gov-ernment rejected criticism of theway its agencies conductedthemselves in court and assertedthat just one federal agency hadbreached the model litigant rulesin the past two years.

Mr Gilbert said the rules hadnot been reviewed for manyyears and there were issues thatneeded to be resolved.

The governments assertionof just one breach of the rules intwo years was contained in a res-ponse in February to questionson notice from the opposition.

Late last year, the Rule of LawInstitute presented the govern-ment with a series of judgmentsin which federal and state judgeshad accused several governmentagencies of not acting fairly incourt. The government re-sponded by asserting that theviews of the judiciary were notconclusive on whether agencieshad breached the rules.

The ball is with the Attorney-General, Mr Gilbert said.

CHRIS MERRITT

Concerns on changesto complaints process

THE NSW Law Society believesplanned changes to the NSWJudicial Commission will give thestate government too much accessto information about the waycomplaints against judges arebeing handled.

The changes, outlined in legis-lationbefore theNSWparliament,have triggered a warning from theopposition that the scheme riskseroding the perception thecomplaints-handling system forthe judiciary is independent ofgovernment.

The changes are contained inthe Judicial Officers AmendmentBill introduced to parliament byAttorney-General Greg Smith.

If enacted, the bill would givethe attorney-general the power toobtain information from theJudicial Commission on whether acomplaint had been made about ajudicial officer, the subject matterof the complaint and how it wasresolved.

Law Society president JustinDowd said that the societys crimi-nal law and family issues com-mittees had examined the bill andbelieved that it was too widely

drafted. In a letter to oppositionlegal affairs spokesman PaulLynch, Mr Dowd says the com-mittees believe that when parlia-ment is determining a complaintagainst a judge it is not unreason-able to know about the existenceof other complaints.

However, they believe that thebill should be more circum-scribed to allow the attorney-general to obtain informationfrom the Judicial Commission inonly two circumstances: When parliament is addressing acomplaint, the attorney-generalshould be able to ask the commis-sion if other complaints exist. When the existence of acomplaint about a judicial officeris in the public domain, theattorney-general should be able toask for information about thatcomplaint.

Mr Dowd says that the legis-lation should expressly state itdoes not empower the attorney-general to direct the Judicial Com-mission on how to deal with com-plaints. Mr Lynch said the letterindicated that the Law Society wasechoing some of his concerns.

The fact that the Law Societyregards the bill as drafted way too

Continued on Page 30

Federal bill is silent on how tohandle issue of judicial incapacityANDREW LYNCH

THERE has been much debate onwhat should be done about Houseof Representatives Speaker PeterSlipper while serious allegationsabout his conduct persist.

Coincidentally, how federaljudges should be treated whenthey are similarly under whatJulia Gillard refers to as a darkcloud is thesubjectof twobillsbe-fore federal parliament.

The bills are the Judicial Mis-behaviour and Incapacity (Parlia-mentary Commissions) Bill andthe Courts Legislation Amend-ment (Judicial Complaints) Bill.

Together they aim to provideclear and certain processes forhandling complaints about fed-eral judges.

They largely succeed in thisaim, but a criticism that can bemade of the bills is their failure to

expressly address the sensitivitiesthat arise in cases of judicialincapacity.

This weakness is hard to ex-plain given the publicity sur-rounding moves to remove fromthe bench some state judicial offi-cers suffering mental illness.

Additionally, the bills showlittle sign of benefiting fromengagement with internationalprotection for persons with dis-abilities, despite these being em-bedded in the governments Aus-tralian Human RightsFramework.

At present, section 72 of theConstitution alone governs whathappens when allegations aremade against a member of thefederal judiciary. It provides thathe or she may be removed by theGovernor-General in councilonly after both houses of parlia-ment are satisfied.

The principle of judicial indep-endence means it should not beeasy for governments to forcejudges off the bench, but the cur-rent bills aim to address two per-ceived deficiencies of section 72.

First, it is hard to argue thateither house is an ideal forum tohandle allegations of misbehav-iour or incapacity exclusively.

There is a lot to be said for cre-ating some anterior process of in-quiry to assist the parliament.

But any body established forthis purpose cannot go so far as tousurp the parliaments con-stitutional responsibilities undersection 72.

The difficulty of treading thatfine line was clear in the drawn-out investigation, through twoSenate committee inquiries andthenaspecialparliamentarycom-mission, of allegations of mis-behaviour against the late HighCourt judge Lionel Murphy in theearly 1980s.

More importantly, the Murphyaffair highlighted the undesir-ability of having to graft pro-ceduresonto thebasicparliamen-tary process after a controversyhas flared.

Former Labor minister Dun-canKerr SC,nowappointed to theFederal Court of Australia, onceexpressed his relief that the swiftcollapse of the allegations of mis-conduct against High Court judgeMichael Kirby in 2002 spared anunready parliament from hav-ing to debate the issue.

The Parliamentary Commis-sions Bill will set up a mechanism
















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off the PressACICA HeAD eArns AusTrAlIAn FIrsTJustin Whealing - EditorLawyers Weekly19 June 2012

Clayton Utz partner and global arbitral figure doug Jones has become the first Australian to sit on the board of a major arbitral association.

Jones (pictured), the head of the Australian Centre for International Commercial Arbitration (ACICA), has been appointed to the executive of the International Federation of Commercial Arbitration Institutions (IFCAI).

IFCAIs members comprise the leading international arbitration institutions, including the London International Court of Arbitration and the China International Economic and Trade Arbitration Commission.

I am honoured to be elected to the Board and...

Read More

MATTer OF HOnOurAlex Boxsell - Legal Affairs EditorThe Australian Financial Review15 June 2012

A smattering of the legal professions finest were recognised in the Queens Birthday honour list this week. Top of the pops was West Australian Chief Justice Wayne Martin, who now has an AC to add to his name after receiving a companion in the general division of the Order of Australia.

Clayton Utz partner and international arbitration guru doug Jones got an AO, as did former president of the WA Court of Appeal, Christopher Steytler, QC.

ArBITrATOrs eye reGIOnAl MArkeTChris Merritt - Legal Affairs EditorThe Australian4 May 2012

AFTER years of effort, Australia is on the brink of establishing the national legal infrastructure that is intended to give this country a greater share of the booming market for international commercial arbitration.

Right around the nation, legislation governing commercial arbitration has been overhauled and brought into line with international standards.

The new laws are based on the rules of the UN Commission on International Trade Law.

That network is intended to ensure that Australian commercial arbitrators develop expertise in the UNCITRAL rules.

Over time, the goal is to deepen the pool of expertise available for private commercial arbitration and attract more international arbitration work.

Read More
















ZO250141

























DAN HIMBRECHTS


CHRIS MERRITT






















Other income

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The Australian Arbitration option: ACICA in China

SHANGHAI, 6 JUNE 2012

Host: King & Wood MallesonsInternational Commerce Center Shanghai

Chair Meg Utterback, Partner, King & Wood Mallesons

Speakers

The Hon Marilyn Warren AC, Chief Justice of VictoriaProfessor doug Jones AO, ACICA PresidentPeter Megens, ACICA Vice PresidentBrent Stewart, Trade Commissioner, Austrade (Shanghai)

BEIJING, 7 JUNE 2012

Host: King & Wood MallesonsWorld Financial Center Beijing

Chair Ariel ye, Partner, King & Wood Mallesons

Speakers

The Hon Marilyn Warren AC, Chief Justice of VictoriaProfessor doug Jones AO, ACICA PresidentPeter Megens, ACICA Vice PresidentShouzhi Zhang, Senior Partner, King & Wood MallesonsMichael Growder, Counsellor, Cultural/Public Affairs, Australian Embassy (Beijing)

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)


off the PressOz ArBITrATOrs sPruIk wAres In AsIALeanne MezraniLawyers Weekly8 June 2012

The chief justice of Victoria, the Hon Marilyn Warren AC, was among the speakers who talked up Australias international arbitration credentials at events in Shanghai and Beijing this week (6 and 7 June).

Read More

Oz ArBITrATOrs eye CHInese MArkeTLeanne MezraniLawyers Weekly24 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 HuBAlex Boxsell - Legal Affairs EditorThe Australian Financial Review8 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 Attorney-General 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 Melbournes legal precinct, she said.

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

AusTrAlIAs rOle In InTernATIOnAl DIsPuTe resOluTIOnThe Herald Sun29 June 2012

Read More



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

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


Peter Megens explaining the legislative overview on ACICAs role and its suite of rules

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


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

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


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

L-R: James oLoughlin (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)


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

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


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

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


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 PACIFICAcknowledged 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


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


Chinese enterprises are facing increasing amount of international arbitration since the financial crisis (Wang Shifeng, Senior Business Journalist, China Business News, 21 June 2012).

The Australian Arbitration option: ACICA in China

Over 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 Australias 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


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.

2012

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


THE HoN MICHAEL KIRBY AC CMG ACICA FELLOW ANd BOARd MEMBER

Book Review

The 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.

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

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 third book in the series: Vivienne Bath and Luke Nottage (Eds),

the acica news - june 2012

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