Leave to Appeal and Australia’s Model Uniform Legislation: Curbing Judicial Discretion Under the Section 38 Amendments* – Vol. 4 No. 3

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Author: Marcus S. Jacobs**

Published: October 1993

Arbitral Awards
Appeal to Arbitral Tribunal and Annulment

Description: Prior to the adoption of the Model Uniform Legislation by the various States and Territories in Australia as the law for domestic arbitrations in Australia, the arbitration statutes of virtually all the States and Territories followed old English Models.

In 1974, the Standing Committee of Attorneys-General of the States and Territories resolved [t]o consider the existing legislation and report on Commercial Arbitration with a view to preparing a model Bill to form the basis of uniform legislation. (The Model Uniform Legislation)

The joint exercise of the Attorneys-General acknowledged the need for uniform domestic arbitration legislation throughout the States and Territories. Between 1984 and 1986 this need prompted the adoption of model uniform legislation in substantially the same terms in all the States and Territories with the exception of Queensland, which retained its domestic arbitration statute based on an old English precedent.

In 1975, England updated its arbitration legislation by enacting the Arbitration Act 1975 [Eng]. The purpose of the new Act was generally to limit curial intervention in the arbitral process; more particularly, it was to limit such intervention with regard to appeals to the Commercial Court on points of law arising out of arbitral awards, and decisions on stated cases on points of law. It was considered that because of excessive curial intervention in the arbitral process, the United Kingdom was losing a substantial volume of international commercial arbitration business to some of the continental countries where there was considerably less curial intervention in arbitration.

No sooner was the new legislation in England enacted than it spawned litigation concerning the criteria to be set by a judge in the Commercial Court for the granting of applications for leave to appeal. One of the landmark decisions was the case of BTP Tioxide Ltd. v. Pioneer Shipping Ltd. & Armada Marina S.A. (the “Nema”), in which Lord Diplock delivered the judgment in the House of Lords laying down certain guidelines.

The debate as to the criteria to be set for granting applications for leave to appeal against arbitral awards spilled over into Australia. Prior to the 1990 Model Uniform Legislation, the Superior Courts in a number of Australian States and Territories concluded that they were at large to grant leave to appeal against arbitral awards for errors of law on the face thereof, without being constrained by any of the guidelines set by Lord Diplock in his landmark speech in the House of Lords in the Nema.

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*Notes & Comments
**Her Majesty’s Counsel for the State of New South Wales. Senior Counsel to South Africa.