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NEWSLETTER -
FEBRUARY 2009 Welcome to the
first edition of our newsletter which I hope you will enjoy reading.
This is an exciting time for International Arbitration and Australia.
With strong support from the Commonwealth and State Governments, and from the
Courts, particularly the Victorian and New South Wales Supreme Courts and the
Federal Court, the opportunities for International Arbitration practice in
Australia has never been brighter. We at ACICA hope that the
inauguration of this newsletter will serve to keep you abreast of
developments in the field and encourage your interest and involvement in the
area. Its main purpose
is to enable our new international members to keep in touch with what is
happening on the international arbitration scene in Australia and with each
other. I hope it will also be of interest to all our members. Please send any
comments and suggestions for further editions to our Director of Arbitration
David Fairlie at dfairlie@acica.org.au. 1.
ACICA Conference November
2008 - International Commercial Arbitration: Making it work for
business 2.
Attorney-General's Review
of the International Arbitration Act 3.
Our new international members 5.
ACICA Snapshot - Judith Levine 1.
ACICA Conference November 2008 - International Commercial
Arbitration: Making it work for business
ACICA's 2008 conference, held in Sydney on 21
November 2008, was a resounding success. The conference was opened by the Attorney General,
The Honourable Robert McClelland, who used the occasion to announce a wide
ranging review of Australia's International Arbitration Act. He also
released a Discussion Paper outlining specific areas for review of the Act. For more information about the Review, please click
in the link below. www.ag.gov.au/internationalarbitration In his opening address, the Attorney General noted:
Australia is well placed to meet the growing demand for
first-rate, cost-effective arbitration services in the Asia-Pacific.
Australian arbitration practitioners are among the world’s best. Australia is
also politically and economically stable and it offers first-class
communication and transport facilities. Furthermore, the Australian Centre
for International Commercial Arbitration which is hosting this conference
provides excellent institutional support for international arbitration.
Arbitration in Australia is also supported by an effective national arbitral
law and by Australia’s renowned independent judiciary. There followed 7 working sessions covering the
following topics: ·
A Users Perspective: Corporate Attitudes and Practices: This session
was presented as a live video link from London by Professor Loukas Mistelis
and Gerry Lagerberg, the authors of the PricewaterhouseCoopers study:
International Arbitration: Corporate Attitudes and Practices 2008. ·
Different Perspectives on the Future of International Arbitration ·
The Changing Landscape of International Commercial Arbitration in
Australia ·
Using Treaty Arbitration to Manage Foreign Investment Risk - The
Meaning and Impact for Australian Business ·
Effective Advocacy in International Commercial Arbitration - A
Hypothetical ·
Australian Maritime Arbitration - in the National Interest ·
Making Arbitration More Efficient There was also
a lunchtime address by the Honourable Justice Allsop, the President of the
New South Wales Court of Appeal and a contribution to the advocacy
hypothetical by Justice Jacobson from the Federal Court. Justice
Jacobson has been appointed as the Judge primarily responsible for
international arbitration matters coming before the Federal Court in Sydney,
taking over that role for Justice Allsop. The speakers
were as diverse as the topics. There were lawyers, both in private
practice and in corporate counsel roles, academics and chartered accountants,
as well as corporate representatives who were able to give mostly legal and
achieve their prospective on the arbitral process who gave their different
perspective on the arbitral process. ACICA is now
planning its 2009 conference possibly to be held in Melbourne.
Photographs provided by Michael Sanig The Attorney General's Discussion Paper is the
Review of the International Arbitration Act. The Discussion Paper was released at ACICA's
conference on 21 November 2008 it is available at www.ag.gov.au/internationalarbitration The Paper sets out the objects of the review.
These are to consider whether the Act should be amended to: (a)
ensure it provides a comprehensive and clear framework governing
international arbitration in Australia; (b)
improve the effectiveness and efficiency of the arbitral process while
respecting the fundamental consensual basis of arbitration; and (c)
consider whether to adopt "best-practice" developments in
national arbitral law from overseas. The Paper then
raises eight questions in relation to specific areas where the Act might be
amended and seeks comments and submissions in relation to each. The
topics include the suggestion that, an Australian arbitral institution should
be entitled to perform the functions specified in articles 11(3), 11(4),
13(3) and 14 of the UNCITRAL Model Laws, which functions are currently
performed by the Courts. These articles deal with disputes concerning
the appointment of arbitrators and challenges to arbitral panels. There is also a
controversial question raised in the Paper as to whether the Federal Court
should be given exclusive jurisdiction for all matters arising under the
International Arbitration Act. ACICA has now
finalised its response to the Discussion Paper and this has been submitted to
the Attorney General's Department. We have made the submission that
ACICA be designated as the arbitral institution entitled to perform those
functions specified in the UNCITRAL Model Law, referred to above. If
this proposal is accepted, this will bring Australia in line with Singapore
and Hong Kong, where these functions are performed by SIAC and HKIAC. Having
considered all of the responses received, the Government is likely to come to
a view in April or May 2009 on which amendments to the Act, it will
adopt. Thereafter, legislation is likely to be introduced into the
Parliament later in the year in the spring session. Last August we wrote to 30 - 40 Australians who
were identified as working, studying or teaching in the field of
international arbitration outside of Australia. We invited them to
become our initial overseas members. We received a very positive response to our letter
and we are delighted that we now have some 17 new international
members - these are: ·
Cole, Anthony - School of Law (Warwick UK) ·
Crockett, Antony - Clifford Chance ·
Friedman, Elliott - Freshfields ·
Gal, Daniel - Dechert LLP ·
Gallus, Nick - Queens University School of Law ·
Greenberg, Simon - ICC International Court of Arbitration ·
Hassall, Cameron - Clifford Chance ·
Inder, Claire - White & Case ·
Ioannou, Leon - White & Case ·
Lalor, Kate - NautaDutilh ·
Martinez, Lucy - Freshfields ·
Nairn, Karyl - Skadden, Arps, Slate, Meagher & Flom ·
Nelson, Timothy - Skadden, Arps, Slate, Meagher & Flom ·
Polkinghorne, Michael - White & Case ·
Rooney, Kim M - White & Case ·
Sindler, Michelle - Olswang ·
Templeman, John - Allen & Overy Membership will give these colleagues:
·
An opportunity to keep in touch with the Australian international
arbitration scheme; and ·
An opportunity to keep in touch with fellow overseas ACICA members. This newsletter is part of that process. 4.
Using Treaty Arbitration to Manage Foreign Investment Risk Articles by
Jonathan Kay Hoyle, Doug Jones and Alex Baykitch
Jonathan Kay Hoyle: http://www.acica.org.au/downloads/Jonathon%20Kay%20Hoyle.pdf Professor Doug Jones AM: http://www.acica.org.au/downloads/Professor%20Doug%20Jones%20AM.pdf Alex Baykitch: http://www.acica.org.au/downloads/Alex%20Baykitch.pdf
Judith Levine
is Legal Counsel at the Permanent Court of Arbitration (PCA), based in the
Peace Palace in The Hague, The Netherlands. The PCA is an
intergovernmental organization which provides services for the resolution of
disputes involving sovereign states, state entities, intergovernmental organizations,
and private parties. Judith is currently working on a boundary dispute
between the north and south of Sudan over the oil-rich Abyei region, a
dispute between a Canadian gold mining company and the Kyrgyz Republic, and a
multi-billion dollar claim under the Energy Charter Treaty. The PCA is
currently administering over 30 cases and has a small dynamic team of
multinational lawyers. As legal counsel, Judith serves as
registrar/tribunal secretary to Tribunals in cases administered by the PCA,
assists in the appointment of arbitrators under the UNCITAL Rules, and
performs a wide variety of educational and policy-related tasks connected
with working at an intergovernmental organization. From 2003 to
2008, Judith was an attorney in the international arbitration group in the
New York office of global law firm White & Case LLP where she
represented sovereign states and corporations in arbitrations under the
Rules of the ICC, ICSID, the AAA and UNCITRAL. The disputes included an
Indonesian cement privatization, a Caribbean power plant, a Peruvian
pipeline, Slovenian antibiotics, Argentine tax fraud, Japanese satellites and
two international boundary disputes. Her active pro bono practice
included asylum, torture convention and domestic violence cases before New
York and federal courts. Prior to
joining White & Case, Judith served as a law clerk at the International
Court of Justice, where she worked on cases concerning border disputes,
treaty interpretation, state responsibility, the use of force, consular
rights, genocide and universal jurisdiction. Judith's experience in
Australia includes work as an adviser to the federal Attorney-General, the
Hon. Daryl Williams QC AM MP, an associate to the Hon. Justice Michael H.
McHugh AC at the High Court of Australia, and a lecturer in contract law at
UNSW. Judith has a BA
(French Major)/LL.B (with University Medal) from UNSW and an LL.M from New
York University School of Law where she studied on a Hauser Global
Scholarship and Fulbright Award. She is admitted to practice in New
York and New South Wales. Quick
Questions When I was
young I wanted to be.....? a magician, or a diplomat, or an international
lawyer At the
moment I am reading? Netherland, by Joseph O'Neill (a novel set in
my two most recent hometowns of New York and the Hague) and Emma's War,
by Deborah Scroggins (a true story about a young English relief worker caught
up in Sudan's north-south civil war) What is
something surprising about me? In the last 12 months I've hiked to
a boiling lake in Dominica, ridden a camel through the Rajasthani desert,
sipped Darjeeling tea in Darjeeling and mojitos in Havana, watched soccer in
Moscow and opera in St. Petersburg and despite "settling down" in
The Hague in June, have since been to another nine countries while pregnant
with our first child (due March, likely with a taste for travel).
What is my favourite place in the
world? Despite the above, there's no place like home, and
I'd have to say Sydney Harbour on a sparkling sunny day. If you wish to
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