|| This site takes, to answer the questions asked during question time at board meetings in early 2016, which have not been answered during the meetings. It remains for documentation purposes here. ~-This note has been added after the [[https://wiki.cacert.org/SGM/20160409|SGM]], at which a new board was elected.-~ || . '''NOTA BENE - WORK IN PROGRESS''' . '''To Brain [[Brain#CAcert_Inc._-_CAcert.org_Members_Association| CAcert Inc. - CAcert.org Members Association]]''' - '''To Answers [[Brain/CAcertInc/Committee/proposal/answers03|Answers03]]''' . == 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 [[http://www.austlii.edu.au/au/legis/nsw/num_act/caa2010n61246.pdf|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: ||Part 1A||Preliminary|||| ||1A||Name of Act||2|| ||1B||Commencement||2|| ||1C||Paramount object of Act||2|| ||Part1 ||General provisions|||| ||1||Scope of application||3|| ||2||Definitions and rules of interpretation||4|| ||2A||International origin and general principles||5|| ||3||Receipt of written communications||6|| ||4||Waiver of right to object||6|| ||5||Extent of court intervention||6|| ||6||Court for certain functions of arbitration assistance and supervision||7|| ||Part 2||Arbitration agreement|||| ||7||Definition and form of arbitration agreement||8|| ||8||Arbitration agreement and substantive claim before court||8|| ||9||Arbitration agreement and interim measures by court||9|| ||Part 3||Composition of arbitral tribunal|||| ||10||Number of arbitrators||10|| ||11||Appointment of arbitrators||10|| ||12||Grounds for challenge||11|| ||13||Challenge procedure||12|| ||14||Failure or impossibility to act||12|| ||15||Appointment of substitute arbitrator||13|| ||Part 4||Jurisdiction of arbitral tribunal|||| ||16||Competence of arbitral tribunal to rule on its jurisdiction||14|| ||Part 4A||Interim measures|||| ||Division 1||Interim measures|||| ||17||Power of arbitral tribunal to order interim measures||15|| ||17A||Conditions for granting interim measures||16|| ||Division 2||Preliminary orders|||| ||17B|| ||16|| ||17C|| ||16|| ||Division 3||Provisions applicable to interim measures|||| ||17D||Modification, suspension, termination||16|| ||17E||Provision of security||16|| ||17F||Disclosure||17|| ||17G||Costs and damages||17|| ||Division 4||Recognition and enforcement of interim measures|||| ||17H||Recognition and enforcement||17|| ||17||Grounds for refusing recognition or enforcement||18|| ||Division 5||Court-ordered interim measures|||| ||17J||Court-ordered interim measures||18|| ||Part 5||Conduct of arbitral proceedings|||| ||18||Equal treatment of parties||20|| ||19||Determination of rules of procedure||20|| ||20||Place of arbitration||20|| ||21||Commencement of arbitral proceedings||21|| ||22||Language||21|| ||23||Statements of claim and defence||21|| ||24||Hearings and written proceedings||22|| ||24A||Representation||22|| ||24B||General duties of parties||22|| ||25||Default of a party||23|| ||26||Expert appointed by arbitral tribunal||24|| ||27||Court assistance in taking evidence||24|| ||27A||Parties may obtain subpoenas||24|| ||27B||Refusal or failure to attend before arbitral tribunal or to produce document||25|| ||27C||Consolidation of arbitral proceedings||26|| ||27D||Power of arbitrator to act as mediator, conciliator or other non-arbitral intermediary|||| ||27E||Disclosure of confidential information||28|| ||27F||Circumstances in which confidential information may be disclosed||29|| ||27G||Arbitral tribunal may allow disclosure of confidential information in certain circumstances||30|| ||27H||The Court may prohibit disclosure of confidential information in certain circumstances||30|| ||27I||The Court may allow disclosure of confidential information in certain circumstances||31|| ||27J||Determination of preliminary point of law by the Court||31|| ||Part 6||Making of award and termination of proceedings|||| ||28||Rules applicable to substance of dispute||33|| ||29||Decision-making by panel of arbitrators||33|| ||30||Settlement||33|| ||31||Form and contents of award||34|| ||32||Termination of proceedings||34|| ||33||Correction and interpretation of award; additional award||34|| ||33A||Specific performance||35|| ||33B||Costs||35|| ||33C||Application of Legal Profession Act 2004||36|| ||33D||Costs of abortive arbitration||36|| ||33E||Interest up to making of award||37|| ||33F||Interest on debt under award||37|| ||Part 7||Recourse against award|||| ||34||Application for setting aside as exclusive recourse against arbitral award||38|| ||34A||Appeals against awards||39|| ||Part 8||Recognition and enforcement of awards|||| ||35||Recognition and enforcement||41|| ||36||Grounds for refusing recognition or enforcement||41|| ||Part 9||Miscellaneous|||| ||37||Death of party||43|| ||38||Interpleader||43|| ||39||Immunity||43|| ||40||Act to bind Crown||43|| ||41||Court rules||44|| ||42||Repeal||44|| ||43||Regulations||44|| ||Schedule 1||Savings, transitional and other provisions||45|| ||Schedule 2||Amendment of Acts and regulations||46|| '''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 [[http://www.ogh.gv.at/de/entscheidungen/weitere/in-vereinsstatuten-vorgesehenes-schiedsgericht-isd|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 [[http://www.gesetze-im-internet.de/englisch_zpo/englisch_zpo.html|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 [[Brain/CAcertInc/Committee/proposal/DRP_Request_For_Change|Request For Change of DRP]].