Judicial Intervention and Party Autonomy: The Role of Australian Courts in Supporting and Supervising International Commercial Arbitration

Abstract

This article explores the intersection of party autonomy and judicial intervention in international commercial arbitration in the Australian legal context with focus on the role of Australian courts which support and oversee arbitral proceedings based on the provisions of the International Arbitration Act 1974 (Cth). Embarking on a doctrinal and qualitative approach to legal research, the research papers critically analyze the landmark judicial decisions, applicable provisions in the statutes, as well as global treaties, most importantly, the UNCITRAL Model Law and the New York Convention, with a view to gauge how the Australian courts are handling their supervisory role with the sense of party autonomy. It is possible to trace a clear trend to judicial restraint especially in high-profile cases like TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5 and Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13, which mutually support the independence of arbitration and expansive interpretation of arbitration agreement. However, this inconsistency in the judicial approach between jurisdiction to jurisdiction especially in terms of correlation of the public policy review and procedural fairness elicit a break in the doctrines as well as a procedure of conservatism that sometimes blight the efficiency and predictability of the arbitral process. The thesis has also noted that even though Australia largely meets the international best practices, some weaknesses still exist, especially the lack of a standalone arbitration court and international recognition, which have a potential of making Australia less appealing as an arbitral seat. It has been recommended that there is the fixing of judicial restraint, made transparent standards of public policy, and establishment of specialist lists in arbitration as well as improvement of the procedure efficiency by integrating technology and increased clarity in third party funding. On the whole, these initiatives would be aimed at the strengthening of Australia as a prominent center of arbitration in the Asia-Pacific region, thus, promoting legal certainty and encouraging party-based dispute settlement.