The 2019 WA Arbitration Report

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The 2019 WA Arbitration Report makes for an interesting read for anyone involved in commercial disputes.

It illuminates what many of us already know: that we have mature – world class – arbitration services in WA. Not surprisingly, large scale construction & engineering, infrastructure, resources and energy disputes dominate the space.

Regrettably, arbitration proceedings have come to closely mirror litigation proceedings. In my view, in an era where superior courts such as the Supreme Court of WA are now largely “courts of mediation” (where trials are the exception rather than the norm) the arbitration industry somewhat ironically needs to work harder to compete with judicial forums for dispute resolution.

Arbitration is now seen as most suitable for factually intensive, large scale disputes where technical expert input is required and confidentiality is paramount. To capitalise on its full potential, in my view: 

  • arbitrators need to focus on what the report describes as “proportionality and procedural economy”, to fully embrace the once considered benefits of arbitration. This means less formality and more procedural pragmatism; and 
  • it is the commercial lawyers, rather than the litigators, that need to be sold on the benefits of arbitration and, more particularly, Perth based arbitration. They are the ones who draft the dispute resolution clauses into contracts and, in the absence of pre-agreed arbitration in the contract, judicial proceedings are the default. While the Report speaks of commercial drafts-people taking into account enforceability, cost, speed and confidentiality, the reality is that in many cases dispute resolution clauses are seen as back end issues which are negotiated at 1 minute to midnight, if at all. Unless a party, usually a foreign party, takes issue with the default position, arbitration is often not even considered; 
  • the State Government needs to get fully behind organisations such as PCERA (Perth Centre for Energy and Resources Arbitration), which cannot run on good intentions alone.

To read the full report download via the Resources link below.

Dean Grondal – Managing Principal

Ph: +61 8 6500 4320

Email: dean.grondal@grondalbruining.com.au

ABOUT GRONDAL BRUINING

Grondal Bruining is a commercial law and litigation firm committed to providing the highest quality legal services. We focus on power & utilities, oil & gas, resources and other commercial and industrial areas. 

Our team is renowned for providing outstanding benefits to clients, delivering proactive and professional advice. Grondal Bruining lawyers have been widely recognised as leaders in their fields by external ratings directories. 

We are conveniently located in West Perth.

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