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The Commercial Arbitration Act 2010 of New South Wales

Let us start with a deeper look into the regulations of the "Commercial Arbitration Act 2010 No 61" of New South Wales.
The document may be found here.
We already pointed out that this act is referred to in the Associations Regulation Act 2010.

The act starts with these words:

The Legislature of New South Wales enacts:

Part 1A Preliminary

Note.

Sections of this Act that contain a reference to the “Model Law” in the heading are substantially the same as the provisions of the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985 with amendments as adopted by that Commission in 2006) so as to be as uniform as possible with the UNCITRAL Model Law. Some changes have been made to those provisions of the Act based on the UNCITRAL Model Law to amend or supplement the provisions in their application to domestic arbitrations in New South Wales or to accommodate modern drafting styles and conventions (for example, provisions are drafted in gender neutral terms and archaisms are replaced with modern alternatives). Notes draw attention to substantive changes. The original numbering of the “articles” of the UNCITRAL Model Law has been retained but converted to references to “sections” and articles containing more than one sentence have been re-formatted into subsections. There are a number of additional provisions to those based on the UNCITRAL Model Law.

As we already pointed out CAcert Incorporated is a legal body and bound to the law of New South Wales.

The first question to be answered is:

Does the "Dispute Resolution Policy" comply with this Arbitration act? Or does it not?

Totally or in parts? Which parts differ if?

To make reading a little bit easier the TOC is given here:

What will happen if a person living in New South Wales seeks assistence at some court because he could not elect "his" arbitrator? What if the claim is made that our arbitration is not in line with the Commercial Arbitration Act 2010?

The answer is much more complicated than one may think of. I haven't found such a case in the jurisdiction databases. But I found such a case in Austria.

• What happened there? An association referred the internal arbitration to an arbitration being in line with UNCITRAL. But they never implemented such an arbitration tribunal. A member of the association sought some advice at court and the court said that the wording "inline with UNCITRAL" might be seen as some extend. If you wipe it out both parties agreed to arbitration! The court referred the case to an arbitration tribunal which exists based on the association act of Austria. The plaintiff had to pay the costs. And of course if the arbitration tribunal decides contrary to his interests he may call the court afterwards.

What does that mean for us?

Let's have a look at Germany. The arbitration act has been integrated into Code of Civil Procedure (ZPO). You will find

• Section 1055

Effects of the arbitration award Amongst the parties, the arbitration award has the effect of a final and binding judgment handed down by a court.

All seems to be fine, isn't it? Please study this:

• Section 1059

Petition for reversal of an arbitration award
(1) Only a petition for reversal of the arbitration award by a court pursuant to subsections (2) and (3) may be filed against an arbitration award.
(2) An arbitration award may be reversed only if:
1. The petitioner asserts, and provides reasons for his assertion, that:
a) One of the parties concluding an arbitration agreement pursuant to sections 1029 and 1031 did not have the capacity to do so pursuant to the laws that are relevant to such party personally, or that the arbitration agreement is invalid under the laws to which the parties to the dispute have subjected it, or, if the parties to the dispute have not made any determinations in this regard, that it is invalid under German law; or that
b) He has not been properly notified of the appointment of an arbitral judge, or of the arbitration proceedings, or that he was unable to assert the means of challenge or defence available to him for other reasons; or that
c) The arbitration award concerns a dispute not mentioned in the agreement as to arbitration, or not subject to the provisions of the arbitration clause, or that it contains decisions that are above and beyond the limits of the arbitration agreement; however, where that part of the arbitration award referring to points at issue that were subject to the arbitration proceedings can be separated from the part concerning points at issue that were not subject to the arbitration proceedings, only the latter part of the arbitration award may be reversed; or where the petitioner asserts, and provides reasons for his assertion, that
d) The formation of the arbitral tribunal or the arbitration proceedings did not correspond to a provision of this Book or to an admissible agreement between the parties, and that it is to be assumed that this has had an effect on the arbitration award; or if
2. The court determines that
a) the subject matter of the dispute is not eligible for arbitration under German law; or
b) The recognition or enforcement of the arbitration award will lead to a result contrary to public order.
(3) Unless the parties to the dispute agree otherwise, the petition for reversal must be filed with the court within a period of three (3) months. The period begins on the day on which the petitioner has received the arbitration award. In cases in which a petition has been filed pursuant to section 1058, the period shall be extended by at most one (1) month following receipt of the decision regarding this petition. The petition for reversal of the arbitration award may no longer be filed once a German court has declared the arbitration award to be enforceable.
(4) If the reversal has been petitioned, the court may remand the matter to the arbitral tribunal where appropriate, as petitioned by a party, while reversing the arbitration award.
(5) In cases of doubt, the reversal of the arbitration award will result in the arbitration agreement once again entering into force concerning the subject matter of the dispute.
(All bold text from the author, not in bold in the act itself!)

There are more restrictions made in the act.

Arbitration will only work as an umbrella for all of us if it is in line with the model clause of UNCITRAL.

Please refer to Request For Change of DRP.