ARBITRATION ON THE RISE IN AUSTRALIA: ACICA REFLECTS ON A DECADE OF GROWTH

The Australian Centre for International Commercial Arbitration (ACICA) has released its report: ‘Reflections on the Last Decade of Activity at ACICA’, in celebration of 10 years since significant legislative reforms were made to increase the efficiency and effectiveness of arbitration in Australia. The report coincided with the 10^th anniversary of the annual Australian Arbitration week and provides key statistics on the growth of the Australian arbitration sector between 2011 and 2021.

Key numbers

The report highlights the following headline statistics:

• ACICA has been involved in arbitrations concerning $24 billion over the last 10 years;
• Of the $24 billion claimed in ACICA administered cases, energy and resources disputes accounted for $18.8 billion, with construction and infrastructure disputes following at almost $4 billion;
• 39% of ACICA cases had at least one party not based in Australia and 11% where neither party was based in Australia;
• 54% of ACICA’s cases were resolved within 12 months; and
• 40% of arbitrator appointments in ACICA cases in 2021 were to women.

International reach

The report underlines ACICA’s increased international reach. It is relevant to note that the 39% of cases having at least one party not based in Australia and 11% of cases where neither party was based in Australia, do not include cases where a foreign entity had engaged in arbitration via a local subsidiary.

The report also highlights the diversity in the nationalities of the claimants in ACICA proceedings, with the most represented nationalities after Australia being Singapore and the USA, each accounting for 4%. ACICA’s cases also involved claimant parties from Germany, Switzerland, Fiji, Hong Kong, Italy, Philippines, Spain, Malaysia, British Virgin Islands, Papua New Guinea and Cyprus. In turn, Singapore and Papua New Guinea were the most commonly recorded nationalities of the responding parties, accounting for 4% and 3% respectively.

The release of frequent updates to the ACICA arbitration rules reflecting best international practice has likely contributed to ACICA’s increased international reach. Over the last decade, ACICA has released four iterations of its rules. The most recent ACICA rules have been in force since 1 April 2021. Over the last decade, 54% of arbitrations were administered under the 2016 rules, 22% under the 2011 rules and 5% of arbitrations were submitted under UNCITRAL rules.

Growth of arbitration in Australia

Ultimately, the report demonstrates the continued growth of international arbitration in Australia, in line with the findings of ACICA’s inaugural Australian Arbitration Report, launched in March 2021.

As we previously outlined here, the report shows that there were 223 active arbitrations with an ‘Australian connection’ for a combined value in excess of A$35 billion during the 2017-2019 period. Of these 223 arbitrations, 111 were international arbitrations (with a combined value of approximately $26 billion). While the most favoured arbitration rules for international arbitrations were those of SIAC and the ICC and the most popular arbitration seat was Singapore, the survey indicated a growing inclusion of ACICA arbitration clauses to the point of near parity to the leading international rules. This trend may translate into a greater number of Australian-seated ACICA arbitrations in the future.

This growth in Australian arbitration has been bolstered by increased judicial support for arbitration, as we outlined here.

Other notable developments in the last few years include Australia’s ratification in 2020 of the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (the ‘Mauritius Convention’) (see here for more information), as well the government’s review of Australia’s Bilateral Investment Treaties (as we outlined here).

Second edition of the ACICA Survey

With a view of continuing to improve the international arbitration practice in Australia, ACICA has again partnered up with FTI Consulting for the second edition of the ACICA Survey on arbitration in Australia. We encourage our readers to participate in the survey in order to increase the quality of data generated so that ACICA can better identify the current issues in the practice and promote the direction best practice is taking in the sector. The survey only takes about 30 minutes to complete.

Arbitration at Herbert Smith Freehills

Herbert Smith Freehills is proud to have been actively involved in the development of arbitration in Australia and has worked closely with ACICA over the last decade.

Our Australian based international arbitration practice is fully integrated with our global arbitration practice and assists with arbitration matters both domestically and around the world. This allows our team to leverage its global experience in key arbitration seats globally and within Australia’s growing arbitration sector.

For further information, please contact Elizabeth Macknay, Partner, Leon Chung, Partner, Chad Catterwell, Partner, Guillermo Garcia-Perrote, Executive Counsel, or your usual Herbert Smith Freehills contact.