Arbitration and Dispute Resolution in the Resources Sector: by Gabriël A. Moens, Philip Evans

By Gabriël A. Moens, Philip Evans

This e-book presents a accomplished Australian viewpoint at the solution of assets disputes. particularly, it makes a speciality of using arbitration, mediation and adjudication within the assets zone. It concentrates on arbitration because the hottest approach to dispute solution, together with overseas advertisement and investor-state arbitration. The publication deals interesting insights into using arbitration to funding disputes regarding assets businesses within the African OHADA international locations, Australia and different nations. It deals an Australian point of view on the way to be valuable to discerning arbitration students and dispute resolvers. moreover, the e-book presents necessary info on how one can draft arbitration clauses for assets quarter contracts. This book may be of curiosity to contributors of the tutorial study group and also will attract dispute answer execs and practitioners.

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Often, these disputes involve complex questions of law and fact, including issues around national boundaries, environmental claims, insurance and reinsurance, sanctions, bribery and anti-corruption. The types of agreements which parties involved in resource projects enter into are certainly diverse, ranging from development agreements before any ground is broken or well drilled, to feasibility studies which will predict the economic viability or otherwise of projects, through to initial and then detailed design of the resource projects themselves.

In the domestic context, arbitration has been an option for many years. Indeed, arbitration as a method of dispute resolution goes back thousands of years where parties in civilised societies have almost always had an alternative to established court structures which business people in particular have used. In recent times, however, there has been adopted for domestic arbitration in Australia a wholly new legal framework that is now uniform between the States. It is “uniform” in the sense that the constitutional responsibility for legislation in relation to domestic arbitration lies with the States, and the States have enacted 1 With the exception of the ACT, all States and Territories in Australia have now adopted domestic arbitration legislation based on the Model Law as amended in 2006.

Another departure from the federal IAA and the Model Law concerns the preservation in the new CAAs of a right of appeal on a question of law. While under the Model Law the grounds for challenge to an award are limited to the due process issues such as an inability to present one’s case in the arbitration and excess of jurisdiction by the tribunal, section 34A of the CAA preserves an error of law appeal, a right which also existed in the 1984 legislation. It is important to note, however, that the right to appeal under the CAA is very circumscribed compared to the earlier version: it will only be available with the consent of all the parties and the leave of the court, with the court having to be persuaded that the tribunal’s decision is obviously wrong or of general public importance.

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