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arbitrator_to_decide_according_to_law_or_fairness

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arbitrator_to_decide_according_to_law_or_fairness [2011/11/30 16:41]
steve [Cases]
arbitrator_to_decide_according_to_law_or_fairness [2017/07/30 18:00] (current)
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 ====== Legislation ====== ====== Legislation ======
   * [[http://​www.austlii.edu.au/​au/​legis/​vic/​consol_act/​caa1984219/​s22.html|Commercial Arbitration Act 1984 (Vic), s22, Arbitrator to decide according to law or fairness?]]   * [[http://​www.austlii.edu.au/​au/​legis/​vic/​consol_act/​caa1984219/​s22.html|Commercial Arbitration Act 1984 (Vic), s22, Arbitrator to decide according to law or fairness?]]
-====== Cases ======+===== Cases =====
 ^Case^Comment^ ^Case^Comment^
-|[[http://​www.austlii.edu.au/​au/​cases/​cth/​HCA/​2011/​37.html|Westport Insurance Corporation v Gordian Runoff Ltd]] | | +|[[westport ​|Westport Insurance Corporation v Gordian Runoff Ltd]] | | 
-| [[http://​www.austlii.edu.au/​au/​cases/​vic/​VSC/​2010/​476.html|Church Grammar School v Bosnich & Anor [2010] VSC 476 (29 October 2010)]]|Section 22(2) of the Commercial Arbitration Act 1984 (Vic) specifically permits parties to agree to an arbitrator or umpire deciding any question by reference to “considerations of general justice and fairness.” If the parties do not agree, the question must be decided according to law.  However, even an agreement for the matter to be determined by reference to considerations of general justice and fairness does not mean an arbitrator is entitled to disregard the law entirely.((paragraph 39))  |  +| [[Church Grammar School v Bosnich & Anor|Church Grammar School v Bosnich & Anor [2010] VSC 476 (29 October 2010)]]|Section 22(2) of the Commercial Arbitration Act 1984 (Vic) specifically permits parties to agree to an arbitrator or umpire deciding any question by reference to “considerations of general justice and fairness.” If the parties do not agree, the question must be decided according to law.  However, even an agreement for the matter to be determined by reference to considerations of general justice and fairness does not mean an arbitrator is entitled to disregard the law entirely.((paragraph 39))  |  
-|Woodbud Pty Ltd v Warea Pty Ltd, Unreported, Supreme Court of New South Wales, Young J, 15 June 1995.|Young J noted that “it was most debatable” whether s 22(2) of the Commercial Arbitration Act 1984 (NSW)((now repealed)), which is the equivalent to s 22(2) of the Commercial Arbitration Act 1984 (Vic), goes much further than permitting the arbitrator to disregard evidentiary and procedural rules and technical rules relating to evidence, deeds and contracts.|+|[[Woodbud v Warea|Woodbud Pty Ltd v Warea Pty Ltd]] (1995) 125 FLR 346, Unreported, Supreme Court of New South Wales, Young J, 15 June 1995.|Young J noted that “it was most debatable” whether s 22(2) of the Commercial Arbitration Act 1984 (NSW)((now repealed)), which is the equivalent to s 22(2) of the Commercial Arbitration Act 1984 (Vic), goes much further than permitting the arbitrator to disregard evidentiary and procedural rules and technical rules relating to evidence, deeds and contracts.|
  
 This provision does not appear in the [[http://​www.austlii.edu.au/​au/​legis/​nsw/​consol_act/​caa2010219/​s18.html|Commercial Arbitration Act 2010 (NSW)]], hence its application which is currently limited based on the case law, appears even more limited.  ​ This provision does not appear in the [[http://​www.austlii.edu.au/​au/​legis/​nsw/​consol_act/​caa2010219/​s18.html|Commercial Arbitration Act 2010 (NSW)]], hence its application which is currently limited based on the case law, appears even more limited.  ​
  
 Hence, arbitrations should be determined according to law. Hence, arbitrations should be determined according to law.

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