THE ARBITRATION VICTORIA PROCESS
Arbitration Victoria has a clear philosophy for the determination of disputes by arbitration – the provision of an arbitration system that is simple, expeditious, cost-effective and fair.
Arbitration Victoria connects disputing parties with arbitrators who share this philosophy. Once the arbitrator is appointed, the case is managed solely by the arbitrator under the Rules.
Arbitration and Arbitration Victoria’s system are explained in the following documents:
When a dispute is referred to arbitration under the Arbitration Victoria Rules the procedure is simple.
When the County Court makes a referral to arbitration it does so under s 66(1) of the Civil Procedure Act 2010 and a referral must be made with the consent of the parties. Where such an order is made by the court, and where the parties agree in writing to refer their dispute to arbitration under the Rules, then the order of the court will stand as the Notice of Arbitration under the Rules. This then initiates the arbitration process.
When the parties choose arbitration themselves one of the parties files the Notice of Arbitration along with the documents required by Rule 14 of the Rules. The rest of the procedure is substantially the same.
The Arbitrator, once appointed, (which should take no more than 7 days), will convene a case management hearing which will take place within 6 weeks of the Arbitrator’s appointment. The parties, and their legal representatives (if any), will attend the case management hearing (in person or remotely) and the Arbitrator will make orders for the future conduct of the arbitration, including setting a date for the final hearing. The final hearing will ordinarily take place within 90 days of the Arbitrator’s appointment.
At the final hearing, the parties will present their evidence, cross-examine opposing witnesses, and make submissions to the Arbitrator. The Arbitrator will deliver the Award (the Arbitrator’s final and binding decision) within 30 days of the final hearing. The Award is final and binding, can be enforced in court, and ordinarily, no appeals are allowed (unless both parties agree to permit appeals and the Court grants leave to appeal).
THE ADVANTAGES OF ARBITRATION WITH ARBITRATION VICTORIA
There are three major advantages of arbitration under the Arbitration Victoria Rules.
The first one is certainty – that is, certainty in terms of the following:
- the time required to resolve the dispute (under the Rules, parties can expect to have the dispute heard and determined, with a binding Award, in 120 days from the commencement of the arbitration – perhaps in less time if the parties have already filed pleadings in court proceedings prior to the referral to arbitration);
- achieving finality in the resolution of the dispute – no costly appeals or lengthy disputes over costs;
- the quality of the arbitrators – each one is experienced in arbitrations, and each one understands the need to manage the arbitral proceedings to achieve the paramount object of fast, final and affordable resolution of disputes;
- the fees payable to the decision-maker (the arbitrator) – these fees are capped under the Rules, and they are extremely competitive (the fees are set out in paragraph 14 of the User Manual);
- the costs payable to the other side under an adverse costs order (i.e. the losing party is usually ordered to pay the winning party’s legal costs) – these costs are capped with a view to encouraging the efficient conduct of proceedings (by discouraging unnecessary and expensive steps and delaying tactics).
The second one is control – that is, control by the parties in how they want to manage the determination of their dispute. For example:
- The parties can choose the arbitrator.
- If the parties want to hold the final hearing in Melbourne, any other venue in Victoria (for example, Ballarat or Horsham) or conduct it over Zoom or MS Teams, for example, they can agree to do that – the arbitrator will give effect to that agreement.
- If the parties want to avoid general document disclosure (which is expensive and often unnecessary), they can agree to do that.
- The parties can narrow the issues in dispute and they can agree to limit the time available for each party to present their case.
- The parties can control the timeframes for the steps required leading up to the final hearing – a quick resolution of the dispute will save costs compared with litigation which could take much longer.
The third one is privacy and confidentiality – arbitrations are conducted in private. The names of the parties and the identity of the witnesses will remain confidential.