ABSTRACT

Arbitration has been described as the private enterprise counterpart of the court system. 2 It derives its existence and force from the agreement between two or more parties to submit their dispute to the final and binding determination of a third party agreed upon between them or appointed pursuant to their agreement by some other party. The inclusion of an arbitration clause will constrain the parties from recourse to the courts, where they would otherwise be able to go without restraint.

Arbitration has much to recommend it. However, it is not without its complications, and the decision to include an arbitration clause in a contract, or to rely on arbitration in the case of a dispute involving an investment, should be an informed commercial choice, with due consideration given to the nature of the transaction, the nationality of the assets of last resort, the place(s) where resort may be had to the courts, and the process of arbitration being considered for adoption.

This paper aims to provide an overview of the nature and status of international commercial arbitration in Australia. In doing so, it examines the differences between international arbitration and its domestic counterpart, and looks at the issue of expert witnesses and the way in which recent developments in Australian court practices relating to experts may add value to the use of expert witnesses in international arbitration proceedings.

Finally, this paper aims to provide some insights into recent developments in the law and practice of international arbitration in the context of investment disputes, and in particular, to examine the relatively recent phenomenon of investor-state arbitration.