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14 - Multi-tier Dispute Resolution in Australia
from Part III - Multi-tier Dispute Resolution in the Wider World
- By Richard Garnett
Edited by Anselmo Reyes, Weixia Gu, The University of Hong Kong
Book:

Multi-Tier Approaches to the Resolution of International Disputes

Published online:

09 December 2021

Print publication:

16 December 2021, pp 343-362
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Summary

The Australian approach to multi-tier dispute resolution and arb-med clauses may be described as one of progressive acceptance. Australian courts now generally recognise and give effect to negotiation and mediation clauses, where entered into as a prerequisite to litigation or arbitration. ‘Good faith’ negotiation clauses and ‘agreements to agree’ a future dispute resolution process are also increasingly accepted, although clauses which are futile or unconscionable will not be enforced.
The current regime for arb-med was introduced in Australia in uniform State and Territory domestic arbitration legislation from 2010 and is based on the Singapore and Hong Kong models. While a recent New South Wales decision reveals a willingness to support the process, concern exists about the strict requirement for party consent to a mediator continuing to act as arbitrator. There is currently no scope for parties to choose arb-med in an international arbitration seated in Australia.