INTERNATIONAL COMMERCIAL ARBITRATION

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INTERNATIONAL COMMERCIAL ARBITRATION
Instructions: The objective of this research essay is to assist you in developing your ability to conduct
research in the topics studied in “International Commercial Arbitration”, to develop a coherent
argument or set of arguments, and to write clearly, concisely and persuasively in a balanced and
scholarly manner. Your research essay should answer one of the essay topics only.
You must submit an Essay Plan for approval before work starts.
Length: A maximum of 5,000 words in total, which does not include footnotes (but footnotes must
only be used for providing references, rather than further discussion and analysis), footnote numbers,
cover page, and your bibliography. (Please note that you must include a bibliography.)
Assignments must be typed, in 12pt, on A4 paper. The text should be 1.5 or double-spaced and the
margins on all sides must be at least 2.5cm.
Referencing: AGLC4
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RESEARCH ESSAY QUESTIONS
1. In the Civil Law and Justice (Omnibus Amendments) Act 2015 (Cth), the Commonwealth
Parliament legislated that ss 23C-23G of the International Arbitration Act 1974 (Cth) would apply
to an international arbitration seated in Australia unless the parties to an arbitration agreed to “opt
out” of their application. Do you agree with this legislative step? Critically discuss.
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2. Consider the following extract from TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics
Pty Ltd [2014] FCAFC 83, [75]:
“[I]t is not only appropriate, but essential, to pay due regard to the reasoned
decisions of other countries where their laws are either based on, or take their
content from, international conventions or instruments such as the New York
Convention and the Model Law. It is of the first importance to attempt to
create or maintain, as far as the language employed by Parliament in the IAA
permits, a degree of international harmony and concordance of approach to
international commercial arbitration. This is especially so by reference to the
reasoned judgments of common law countries in the region, such as
Singapore, Hong Kong and New Zealand. Such is a reflection of the growing
recognition of the harmony of what can be seen as the ‘law of international
commerce’: Premium Nafta Products Ltd v Fili Shipping Co Ltd [2007] UKHL 40 at [31] per Lord Hope of Craighead.”
Critically discuss. Are there limits to the extent to which Australian courts should take account of
the decisions of other national courts on international commercial arbitration?
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3. UNCITRAL Working Group III is currently considering the creation of a permanent tribunal for
the settlement of investment disputes, potentially including an appellate mechanism. Do you agree
that this would be a positive development in the settlement of investor-State disputes? Explain
why.
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4. In what circumstances can a non-signatory to an arbitration agreement nonetheless be bound by a
resulting arbitral award? Have arbitral tribunals and courts struck the right balance? Critically
discuss.
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5. Compare the regimes for enforcing arbitral awards under the UNCITRAL Model Law and the New
York Convention with the regimes for enforcing foreign judgments under the 2005 Hague Choice
of Court Convention and settlements under the 2019 Singapore Convention on International
Settlement Agreements Resulting from Mediation. Are the latter two treaties likely to be widely
ratified and international commercial arbitration therefore likely to lose its attraction as the
preferred method for resolving cross-border business disputes?
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6. Is it open to a national court to enforce an arbitral award, even though the award has been set aside
by the courts at the seat of the arbitration? Critically discuss.
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7. It has been suggested by Prof. Jan Paulsson (“Moral Hazard in International Dispute Resolution”
(2010) 25 ICSID Review – Foreign Investment Law Journal 339) that the system whereby at least
two arbitrators are appointed by the parties should be abandoned in favour of all arbitrator
appointments being made by (e.g.) the relevant arbitral institution. Do you think this would assist
in promoting the legitimacy of investment arbitration? Critically discuss.
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8. Compare the IBA Rules on the Taking of Evidence in International Arbitration (2020) with the
Prague Rules on the Efficient Conduct of Proceedings in International Arbitration (2018). Which
of these best meets the aims of international arbitration as an efficient and just method of resolving
transnational commercial disputes?
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9. Does the rise of international commercial courts (e.g., in Singapore, Dubai, and China) threaten the
role of international commercial arbitration in the settlement of transnational commercial disputes?
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