Peter McQueen, provides his services as an arbitrator, mediator and facilitator, in respect of commercial disputes, in particular those relating to transport and trade matters.  He is a qualified arbitrator and an accredited mediator.Peter is a Director of the Australian Centre for International Commercial Arbitration (ACICA) and the inaugural Chair of the Australian Maritime and Transport Arbitration Commission (AMTAC).  Peter has had over 30 years prior experience working internationally as a lawyer specialising in maritime, aviation, trade and transport law and having represented transport operators, traders and service providers and their insurers. During this time, Peter has been recognised internationally as a leading lawyer by:
• Best Lawyers – Maritime/Aviation/Trade
• Euromoney’s Best of the Best Guide to the World’s Leading Shipping & Maritime Lawyers
• International Who’s Who of Shipping & Maritime Lawyers
• Euromoney’s Guide to the World’s Leading Aviation Lawyers
• International Who’s Who of Aviation Lawyers
• Asia Pacific Legal 500 – Transport

MARITIME ARBITRATION DEVELOPMENTS IN AUSTRALIA

The Australian Centre for International Commercial Arbitration (ACICA) is Australia’s international arbitration institution. ACICA is a non-profit public company that was established in 1985, its mission being to educate, promote and facilitate the use of international arbitration for dispute resolution within the Asia Pacific region and to promote Sydney and Australia as a venue.
The facilitation of international arbitration in Australia is essential for Australian business and its trade and commerce.
To achieve this ACICA provides institutional support for arbitration to occur in Australia. It maintains panels of international arbitrators and a list of experienced arbitration practitioners.
Practical assistance is provided concerning the availability of hearing rooms, transcription and information technology services.
ACICA also provides advice to governments in relation to arbitration and dispute resolution generally and has provided both an adviser and a delegate/observer as part of the Australian delegation to the UNCITRAL sessions relating to a review of the UNCITRAL Model Law and the UNCITRAL Arbitration Rules.
ACICA has its own set of arbitration rules. The arbitration rules give an advanced, efficient and flexible framework for the conduct of arbitrations supported by administrative services provided by ACICA. The ACICA Rules were introduced in 2005 and have since gained broad international acceptance. They contain a number of innovative provisions which aim to allow arbitrations to proceed more efficiently, as well as provisions designed to adapt the Rules to the Australian common law. Such provisions deal with confidentiality, interim measures of protection and the taking of evidence.
ACICA’s educational activities include holding seminars and conferences to enhance a knowledge and an understanding of international arbitration. Additionally, ACICA hosts visiting delegations from government arbitral bodies and arbitral associations. These events enable ACICA to develop and maintain co-operative arrangements (some the subject of formal co-operation agreements, some less formal) with other similar bodies in other parts of the world, in particular the Asia-Pacific region. This also assists to promote and develop international commercial arbitration and Australia’s expertise in the field. Of particular note is the Cooperation Agreement between China Maritime Arbitration Commission (CMAC) and ACICA signed in March 2007.
ACICA has a Board of Directors, which is made up of prominent international arbitrators and academics, and leading practitioners who specialise in international dispute resolution. ACICA’s directors are appointed by various bodies including the Law Council of Australia, the Australian Bar Association, the Chartered Institute of Arbitrators, the Institute of Arbitrators and Mediators Australia, the International Chamber of Commerce Australia and the Attorneys-General of Australia and of NSW. Directors are also appointed by the 7 corporate members of ACICA.
The corporate members provide substantial funding to ACICA and are comprised of Australia’s largest law firms.

Role of MLAANZ and AMTAC
Australia is a vast island nation, a country "girt by sea" as referred to in its national anthem, and its economy is highly dependent on sea trade. Currently, approximately 12% of world trade by volume either comes into or goes out of Australia by sea. Matters maritime are an integral part of the Australian economy and maritime disputes can have acute effects on it. Therefore the resolution of those disputes in Australia, and to do so by arbitration, is very much in the national interest.
Historically, the resolution by arbitration of Australian-related maritime disputes has been conducted in the traditional maritime arbitration centres of London and New York.  This is because dispute resolution clauses in the proforma maritime contracts nominate either London or New York as the seat of the arbitration and specify the application of English or US law in respect of disputes arising in connection with those contracts.
In Australia, which has been characterised as a nation of shippers or cargo interests and not ship owners or ship operators, those negotiating contracts for the carriage of their goods with foreign ship owning and ship operating interests have had to agree almost exclusively to the inclusion into those contacts of dispute resolution clauses which nominate London or New York as the seat of arbitration.
However, maritime arbitration centres have developed in the Asia-Pacific region, including Shanghai, Beijing, Tokyo, Hong Kong, Singapore and Kuala Lumpur. Given the economic growth of, and the movement of capital and commercial activity to, this region, it is not surprising that commercial parties working in that region wish to resolve their disputes locally, where they have arisen, and to do so in a timely and cost effective manner.
The question has been -why continue to refer such disputes to arbitration in London or New York when there is a wealth of knowledge and experience in maritime and transport law and in dispute resolution in the Asia Pacific region, including Australia?
MLAANZ
In 1997, the Maritime Law Association of Australia and New Zealand (MLAANZ) established an arbitration committee, which introduced its own arbitration rules (which were revised in 2007) and a suggested arbitration clause (set out in Schedule 1) and also set up a panel of arbitrators. The work of MLAANZ in this area is to be congratulated and supported.
The object of the MLAANZ Rules is to provide a dispute resolution procedure which is expeditious, flexible and cost effective.
These Rules do not prescribe that disputes of parties be defined by way of pleadings and particulars. Parties and arbitrators are encouraged to adopt processes which are less legalistic.
Where a dispute involves a sum which is less than AUD100,000, parties and arbitrators are encouraged to adopt a speedy procedure pursuant to which an award can be delivered within three months from the first preliminary conference.
The Rules have been written so that the parties can adopt a procedure which readily assists in the quick and efficient resolution of each individual case.

 
AMTAC
However, until 2007, Australia did not have a maritime arbitration centre focusing on an "all of industry" approach, to harness the skills of operators, service providers, maritime practitioners, academics, arbitrators and judges and to provide a structure to carry on arbitration of maritime disputes in Australia.
The Australian Maritime and Transport Arbitration Commission (AMTAC), a Commission of ACICA and launched in 2007, is that centre. It has received most welcomed support (including some funding) from the Federal Attorney General.
AMTAC objectives are:
to support and facilitate the conduct in Australia of arbitration,
to promote in Australia and the Asia-Pacific region, maritime affairs, maritime scholarship and alternate dispute resolution, and
to establish registers of arbitrators and experts with experience in maritime matters and to encourage appointment of AMTAC administered arbitrations.
AMTAC wishes to work inclusively with industry to promote an understanding of, and provide services for, maritime dispute resolution in Australia and the Asia-Pacific region.

To achieve its objectives, AMTAC is:
promoting recommended model dispute resolution clauses in standard form contracts (set out in Schedule 1),
introducing and promoting arbitration rules (note AMTAC uses the ACICA Expedited Arbitration Rules),
providing access in Australia and in the Asia-Pacific region to established expertise in arbitration of maritime disputes,
convening conferences and training programs for arbitrators and practitioners.
The structure of AMTAC consists of an Executive, which is made up of a Chair, Vice Chairs, a Secretary-General, Foundation Members and Members.
AMTAC’s 21 Foundation Members represent a wide cross section of public and private maritime and transport organisations, include government departments and agencies, industry and practitioner bodies, private corporations, and universities.
Membership of AMTAC is open to any organisation or person, having an interest in maritime arbitration and being approved by the Executive. AMTAC is calling for applications for both members and for appointments to the AMTAC register of arbitrators.

Contact details for both MLAANZ and AMTAC are set out in Schedule 2.
Australia as venue for international commercial arbitration
ACICA and AMTAC have led a campaign outlining the advantages of Australia as a venue for international arbitration.
Australia’s legal profession is held in high regard internationally.
Australia has incorporated the UNCITRAL Model Law on International Commercial Arbitration (Model Law) into its domestic law through the International Arbitration Act 1974 (Cth) (IAA).
Australia boasts one of the world’s most outstanding venues – Sydney. Along with the virtues that make it one of the world’s most popular tourist destinations, Sydney possesses commercial courts that are extremely efficient, of the highest integrity, independence and noted for the consistency of their decisions. Those courts appreciate the independence and significance or arbitral proceedings and are rigorous in enforcing arbitral awards. Participants can engage in proceedings with a high degree of certainty, confident of what to expect from the courts.
The compelling combination of professional capability, supportive laws, a high quality judiciary and excellent facilities make Sydney a prime venue in which to conduct international arbitrations. For these reasons AMTAC works to promote Sydney and Australia to corporations doing business in Asia Pacific and to promote its recommended model arbitration clauses (set out in Schedule 1).
Updating of Australian International Arbitration Act
In November 2008, the Commonwealth Attorney-General announced the Government’s intention to review the International Arbitration Act 1974 (the Act). 
This Act provides for the recognition and enforcement of international arbitration agreements and foreign arbitral awards, gives Australian investors the rights to engage in investor/foreign state arbitrations and regulates international commercial arbitration in Australia by incorporating the New York Convention, the Model Law and ICSID Convention into domestic law.

The Attorney-General sought comment from industry on whether:
to update the Act to reflect the latest developments in arbitration practice worldwide and ensure that the Act best supports international arbitration in Australia;
to make Australia a more attractive arbitral venue by legislating to clarify various aspects of Australian arbitration law; and
to give the Federal Court of Australia exclusive jurisdiction over international commercial arbitration in Australia.
Possible amendments to the Act under review include:
(a) Writing requirement
The Act incorporates the UNCITRAL Model Law into Australian law. The Act currently requires an arbitration agreement to be in writing. Australian courts have interpreted this requirement broadly.  However, in 2006 the Model Law was amended by UNCITRAL to clarify the writing requirement to include all types of electronic communication.
The Attorney General sought comment on whether the Act should be amended to reflect the changes to the Model Law.
(b) Grounds to refuse enforcement of a foreign arbitral award
Section 8 of the Act provides that a court may refuse to recognise and enforce a foreign award if one or more specific grounds are satisfied.
The Attorney-General sought comment on whether the Act should be amended to provide expressly that a court may only refuse to recognise and enforce an arbitral award if one of the listed grounds is made out.
(c) Arbitral rules versus Model Law
Section 21 of the Act allows the parties to opt out of the application of the Model Law. There has been some confusion as to the interaction between arbitral rules and the Model Law. According to worldwide arbitration practice, arbitral rules and the Model Law can both govern an arbitration.
The Attorney-General proposes to amend the Act to clarify that adopting arbitral rules is not of itself sufficient to exclude the application of Model Law.
(d) Jurisdiction for matters arising under the Act
Both the Federal Court and the State and Territory Supreme Courts have jurisdiction over different parts of the Act.  There is a Bill currently being
considered by the Federal Parliament which will give the Federal Court concurrent jurisdiction with the State and Territory Supreme Courts.
However, in a controversial move, the Attorney-General sought comment on whether the Federal Court should have exclusive jurisdiction under the Act so as to allow for more consistent jurisprudence in applying the Act. Currently, the Act gives designated courts the authority to perform certain of the functions in the UNCITRAL Model Law, such as appointing arbitrators and hearing challenges to arbitrators.
The Attorney-General proposes that ACICA be designated to perform these functions.

ACICA Expedited Arbitration Rules
In 2008, ACICA introduced the Expedited Arbitration Rules whose "Overriding Objective" is to ensure that arbitration remains quick, cost-effective and fair, considering the amounts in dispute and complexity of issues or facts involved in the case.  Those Rules include reduced time limits for most procedural steps, restrictions on extensions of time and limited provision for document production. They seek to provide the parties with additional confidence that the arbitrator can hear the case quickly and fairly, with a greater assurance that the award will not be open to challenge due to a failure to accord procedural fairness. A summary of the Expedited Rules is set out in Schedule 3.

Current Australian jurisprudence on maritime arbitration
In the decision of the Federal Court of Australia (Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2008] 1 Lloyd’s Rep 119), consideration was given, amongst other issues, to the scope of arbitration clauses, whether a decision to litigate renders an arbitration agreement inoperative and the requirement for an arbitration agreement to be in writing.
In April 2006, Pan entered into a charter party with Comandate Marine Corp, the owners of the vessel “Comandate”. The contract contained an arbitration clause providing that all disputes arising out of the contract be arbitrated in London and be governed by English Law.
Pan commenced proceedings in the Federal Court of Australia, seeking amongst other things, an injunction to restrain Comandate Marine from obtaining an injunction from a foreign court that would prevent Pan filing a claim against it for misrepresentation in contravention of the Trade Practices Act 1974 (Cth) (the TPA). The Court granted the injunction sought by Pan.
Comandate Marine then commenced its own in rem proceedings in the Federal Court. In relation to the Pan proceedings, Comandate Marine brought a motion that these proceedings be stayed in accordance with the International Arbitration Act 1974 (Cth) (the Act) and that Pan be ordered to arbitrate the issues in the English arbitration which it had commenced.
At first instance Pan resisted the stay on the following three grounds, all of which were accepted by the Court, that:
(a) in bringing its own proceedings Comandate Marine had elected to litigate, rather than arbitrate the dispute;
(b) the charter party agreement containing the arbitration clause was not in writing as required by section 7(2) of the Act; and
(c) claims for misleading and deceptive conduct under the TPA did not come within the scope of the arbitration clause.
The Full Court of the Federal Court of Australia allowed the appeal. The following issues were considered:
(i) Waiver or election to abandon London arbitration by commencing proceedings? It was held that the commencement of the in rem proceedings by Comandate Marine did not amount to a repudiation of the arbitration agreement. There was also a finding that there was an absence of mutually inconsistent rights – the decision to litigate or arbitrate not being a selection between inconsistent methods of dispute resolution. The Court found that the step taken to commence the in rem
proceedings was designed to advance Comandate Marine’s position and that it was not an unequivocal statement of abandonment of the arbitration.
(ii) Requirement for arbitration agreement to be in writing
The Court found that the arbitration clause could be contained in an exchange of letters or telegrams even where the formation of the substantive contract occurred by some other case and that, once the contract did come into existence, the arbitration clause contained in the exchange of documents was binding.
The Court held that, even if it was necessary for the contract to be brought into existence by the sending and receiving of the relevant documents that had happened in this case. The provision of the bank guarantee was a condition precedent to performance, but not a condition precedent to the existence of any legal relationship. A legal relationship already existed. The parties were bound and unable to withdraw. The liability to perform on behalf of Comandate Marine was the only thing dependent on the bank guarantee.
(iii) Scope of arbitration clause
The Court held that the words “all disputes arising out of this contract” are flexible enough to encompass disputes with a sufficiently close connection with the formation, the terms and the performance of the contract. It is necessary in each case to assess the connection between the dispute and the contract, including the formation, terms and performance.

Thus, the Court found that all the TPA claims in this case arose out of the contract, in that they arose out of the formation of the contract. Simply, without the entry into the contract there would have been no act of reliance upon which to base a claim under the TPA. Thus, the Court concluded that Pan’s statement of claim was encompassed by the arbitration clause.
The decision brings Australia into line with other decisions such as Ethiopian Oil Seeds Pulse Export Corporation v Rio del Mar Foods Inc [1990] 1 Lloyds Rep 86 and Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160.
(iv) Operation of the Act
The Court found that it was obliged to stay the proceedings pursuant to section 7 of the Act in reliance on the doctrine of separability, and that the doctrine of separability is part of the proper common law approach to analysing arbitration clauses and agreements, the arbitration clause being considered to be an agreement independent from the main contract. 
(v) Other bases for a stay assuming inapplicability of the Act?
The Court held that the connection of the matter with the domestic law of Australia as a factor for litigating in Australia does not outweigh the holding of the parties to their bargain, emphasising that the commercial parties in this case freely entered a bargain to resolve their disputes in London according to English law. The Court found that there were powerful and discretionary reasons why an arbitration agreement should be enforced, even if the contractually chosen venue and law gave rise to rights not entirely the same as under the parties’ domestic law.
(vi) “Anti-anti-suit” injunction
As there was a finding that there should be an unconditional stay of Pan’s proceedings, therefore there was no reason for Comandate Marine to seek an anti-suit injunction and the “anti-anti-suit” injunction was of no further useful purpose.
Next steps
The next steps are required to be taken in order to foster maritime arbitration in Australia:
promotion of dispute resolution clauses which provide for an Australian seat for arbitration,
adoption of arbitration rules which provide for timely, cost effective and fair arbitrations,
development of greater awareness among those in the maritime community and among their legal advisers of the advantages of conducting arbitration in Australia where, in many instances, the disputes arise and where the parties operate, in particular competitively priced and timely resolution of disputes.
ongoing teaching and refresher training of those who wish to practise as arbitrators in this field so as to ensure that the relevant expertise is continually developed and that appropriate standards of that expertise are maintained.
It remains squarely in the national interest of Australia for the next steps to be pursued energetically to ensure that maritime arbitration as conducted in Australia meets the needs of those parties seeking reliable venues and skilled maritime arbitration centres.

SCHEDULE 1
MLAANZ SUGGESTED ARBITRATION CLAUSE
Parties to a contract may adopt a form of words that best describes their agreement to resolve any dispute by arbitration. In order to assist parties in drafting an agreement, the following clause is suggested:
"Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity, or termination, shall be referred to arbitration in (name of city) by a sole arbitrator/a tribunal of 3 arbitrators (strike out whichever is inapplicable) in accordance with the Arbitration Rules of the Maritime Law Association of Australia and New Zealand.
AMTAC MODEL DISPUTE RESOLUTION CLAUSES
"Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved by mediation in accordance with the ACICA Mediation Rules. The mediation shall take place in Sydney, Australia (or choose another city) and be administered by AMTAC.
If the dispute has not been settled pursuant to the ACICA Mediation Rules within 60 days following the written invitation to mediate or within such other period as the parties may agree in writing, the dispute shall be resolved by arbitration in accordance with the ACICA Expedited Arbitration Rules. The seat of arbitration shall be Sydney, Australia (or choose another city). The language of the arbitration shall be English (or choose another language). The number of arbitrators shall be one. The arbitration shall be administered by AMTAC."
or
"Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the ACICA Expedited Arbitration Rules. The seat of arbitration shall be Sydney, Australia (or choose another city). The language of the arbitration shall be English (or choose another language). The number of arbitrators shall be one. The arbitration shall be administered by AMTAC."

Commencement of Arbitration (Article 5) When notice of arbitration/registration fee received by AMTAC whichever is later. Statement of claim to be provided with notice of arbitration.
Statement of Defence (Article 18)
Respondent to provide full statement of defence 28 days after receipt of notice of arbitration.
Composition of Arbitral Tribunal (Article 8) One arbitrator appointed by AMTAC within 14 days of commencement of arbitration.
Applicable Law (Article 29) Arbitration shall apply law designated by parties as applicable to substance of dispute. If no designation, arbitrator shall apply rules of law which arbitrator considers applicable.
Arbitral Proceedings (Article 13)
Parties to be treated equally and to be given a reasonable opportunity of presenting their case. No hearing unless:
exceptional circumstances exist, as determined by arbitrator, or
either arbitrator or parties require hearing to take place. Any hearing to be no longer than one working day.
Confidentiality (Article 14) Unless parties otherwise agree in writing, hearings shall take place in private and all
matters relating to arbitration to be treated as confidential and not disclosed to third parties without prior written consent. Periods of Time (Article 22) Times fixed may be varied by agreement among arbitrator and parties. Failing agreement arbitrator may vary times fixed:
to give effect to overriding objective;
but only in exceptional circumstances and if arbitrator is satisfied that a variation is required in interests of justice;
on such terms as to costs or otherwise as arbitrator considers reasonable in circumstances;
to a maximum of 14 days to total time fixed under Rules for actions by each party, and
to a maximum total period of 30 days for action by arbitrator.
Evidence (Article 23)
No discovery unless arbitrator believes a party has failed to produce a relevant document in which case arbitrator may:
order for documents production may be made;
draw an adverse finding if document not produced without good reason.
Interim Measures of Protection (Article 24)
Arbitrator may order interim measures of protection, at request of any party in appropriate circumstances. Such an order may be ordered in form of an award, or any other form, provided reasons are
given, and on such terms as appropriate. Arbitrator to endeavour to ensure that measures are enforceable.
Time for Final Award (Article 27) Arbitrator shall make a final award within 4 months of notice of appointment of arbitrator, where no counterclaim, and otherwise within 5 months.