The profile of arbitration jurisprudence has grown considerably over the last several years in Australia, in part fuelled by a raft of legislative amendments and in part driven by arbitral bodies keen to tangibly demonstrate the Australian commitment. A leader in that area has been the Australian Centre for International Commercial Arbitration (ACICA). ACICA's Australian Maritime and Transport Arbitration Commission (AMTAC) has sponsored an annual free public address since 2007, videolinked to national centres.

On 25 September 2012, Keane CJ of the Federal Court of Australia, presented the annual address, entitled "The Prospects for International Arbitration in Australia: Meeting the Challenge of Regional Forum Competition or Our House Our Rules". Keane CJ highlighted the importance of Australia not falling behind its South-East Asian neighbours in connection with the resolution of disputes through arbitration.

He presented an overview of the advantages of arbitration over traditional litigation, highlighting that arbitration provides parties with:

On this basis, Keane CJ discussed current Australian arbitration law, with a key focus on the International Arbitration Act 1974 (Cth) (IAA) and the amendments to the IAA passed in 2010 (see Legal update, Australia advances arbitral law reform). These amendments broadly give effect to the UNCITRAL Model Law and facilitate the recognition and enforcement of arbitration agreements entered into in relation to international trade and commerce. It was noted, with some concern, that in 2010, 24 International Chamber of Commerce (ICC) arbitrations were commenced with Singapore as the chosen venue, and in 2011, Singapore received 188 requests for arbitration. Australia, meanwhile, heard only two ICC arbitrations in 2010, and one in 2011.

Keane CJ praised the reforms in Australia for their modernisation and clarification of existing arbitration practice, and referred by way of example to the fact that the "public policy" rule permitting a court to decline to enforce an award (pursuant to section 8(7A) of the IAA) is now couched in terms provided by the Model Law, and not any local considerations which might significantly broaden this definition.

One of the issues with conducting international arbitrations in Australia, as suggested by Keane CJ, is that there are a raft of Australian laws which parties cannot opt out (for example, the Competition and Consumer Act 2010 (Cth), the Carriage of Goods by Sea Act 1991 (Cth) and the Insurance Contracts Act 1984 (Cth)). This poses a considerable challenge in making Australia a desirable forum to conduct arbitrations and in this connection Keane CJ welcomed the Australian Standing Council on Law and Justice's mooting the possibility of legislative reform in this area.

Of significant concern to Keane CJ are the difficulties in enforcing arbitration awards under the IAA where an arbitration award has not been made in a "Convention country", or where the enforcing party is not an ordinary resident or domiciled in a Convention country or Australia. Under Article 35 of the Model Law, a person seeking to enforce an award under these circumstances must apply to a "competent court", a term not defined by the Model Law or the IAA. Murphy J recently held that the Federal Court has jurisdiction as a "competent court" in Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd [2012] FCA 21 (discussed in Legal update, Federal Court of Australia has jurisdiction to enforce both "non-foreign" and foreign arbitral awards); however that decision is under challenge (see Legal update, Viability of Australia's international arbitration industry soon to be determined. It would be preferable if the process of identifying a competent court was made more straightforward by means of express legislative provision.

Furthermore, Keane CJ referred to the fact that Australian courts have taken what may be described in some quarters as an "overly judicial" approach to arbitration awards, highlighted by the decision in Oil Basins Ltd v BHP Billiton Ltd (2007) 18 VR 346. Although Oil Basins was disapproved of in Gordian Runoff Ltd v Westport Insurance Corp (2010) 267 ALR 74, and in the subsequent appeal Westport Insurance Corp v Gordian Runoff Ltd (2011) 244 CLR 239 (for further discussion, see Legal update, Australia: arbitration round-up 2011/2012), statements of members of the court suggest that a judicial mindset not fully supportive of arbitration may still exist. By way of example, Keane CJ referred in particular to the strong comments of Heydon J in Westport. Such a judicial approach may create an obstacle to Australia becoming a key seat for international arbitration.

Keane CJ concluded by suggesting that to ensure Australia's place in the international community as a seat for international arbitration, future reforms of arbitration laws and policies in Australia should reflect the views, priorities and perspectives of international traders.