Author: Marcus S. Jacobs*
Published: June 1991
Contractual Expansion or Limitation of Judicial Review
Description: Australia is a federal state comprised of six states and two territories, each with its own court structure. The Commonwealth Government has constitutional power to legislate on matters external to Australia and on trade and commerce with other countries; federal courts deal with matters pertaining to Commonwealth law.
Australia has separate legislation for domestic and international arbitrations. Australia’s domestic arbitration legislation is patterned on the Model Uniform Legislation, which, in turn, is based on the English Arbitration Act of 1979 (the “English Arbitration Act”). The Model Uniform Legislation has been enacted into law in all Australian states and territories except Queensland, which in 1990 enacted the Commercial Arbitration Act (the “Queensland Arbitration Act”). Section 38 of the Model Uniform Legislation and the Queensland Arbitration Act (and the Amending New South Wales Bill) grants a right of appeal, by leave of the Supreme Court or upon the consent of all parties, on the ground that there is an error of law on the face of the award.
While the Queensland Arbitration Act follows the model legislation, and includes the right of appeal clause, it incorporates certain changes recommended by the Standing Committee of Attorneys General of Australia. These include limiting the right of appeal by incorporating certain of the guidelines set down in the famous decision by the English Court of Appeals in B.T.P. Tioxide Ltd. v. Pioneer Shipping Ltd. & Armada Marine S.A. (hereinafter referred to as the “Nema”). In addition, a bill is presently before the New South Wales Parliament to incorporate a similar provision. Section 38(5) (b) of the amending legislation provides that an additional requirement be met before obtaining leave to appeal: there must be either a manifest error of law on the face of the award or strong evidence that the arbitrator or umpire made an error of law, the determination of which would add substantially to the certainty of commercial law. Other states and territories are expected to pass similar legislation in the near future.
*Her Majesty’s Counsel for the State of New South Wales. Senior Counsel to South Africa.