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When should an arbitrator rule on admissibility?

  • Commercial Arbitration Act 2010 (NSW), s19(3) provides that the power conferred on the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.
    • The arbitral tribunal must decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute.
    • Any designation of the law or legal system of a given State or Territory must be construed, unless otherwise expressed, as directly referring to the substantive law of that State or Territory and not to its conflict of laws rules.
    • Failing any designation by the parties, the arbitral tribunal must apply the law determined by the conflict of laws rules which it considers applicable.
    • The arbitral tribunal must decide the dispute, if the parties so agree, in accordance with such other considerations as are agreed to by the parties.
    • In all cases, the arbitral tribunal must decide in accordance with the terms of the contract and must take into account the usages of the trade applicable to the transaction.
  • The rules of evidence require that an arbitrator should rule as soon as possible on the admissability of evidence
  • However this rule is not always absolutely followed in every instance even in Court proceedings

More Information

1) [2011] HCA 21, Majority [19]-[20], Heydon J [123]-[134]
2) [2012] VSC 99

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