Leon Alexander<\/strong>, Partner at Clyde & Co<\/strong><\/a>
William Page<\/strong>, Special Counsel at Clyde & Co<\/strong><\/a>
Robbie Pilcher<\/strong>, Associate at Clyde & Co<\/strong><\/a><\/p>\n\n\n\n
THE EDITORS:<\/strong> Clyde & Co<\/a>\u2019s Young Arbitration Group provides a unique insight into\u00a0international arbitration\u00a0issues through the lens of young international arbitration practitioners working across different jurisdictions. In this series with\u00a0Daily Jus<\/a>, Clyde & Co explores the role of arbitration\u00a0in mining\u00a0disputes.<\/em><\/em><\/p>\n\n\n\n Australia\u2019s wealth of natural resources makes it an attractive market for domestic and foreign investment. Its mining industry amounts to 75 percent of the country\u2019s exports, with a total net worth of around AUD 160 billion<\/a>. Given the significance of the mining industry to the Australian economy, and the importance of commodities such as lithium and copper to the energy transition, it is perhaps not surprising that many of Australia\u2019s domestic and international disputes arise from mining activities and the trading of its commodities.<\/p>\n\n\n\n This article provides an overview on mining arbitration in Australia. It explains the different arbitration frameworks at both domestic and international level in Australia. It then considers the significance of Bilateral Investment Treaties (\u201cBITs\u201d) on arbitrations in the region, and how the Australian Centre for International Commercial Arbitration (\u201cACICA\u201d) Arbitration Rules 2021<\/a> have provided the country with a modern and efficient approach to arbitration.<\/p>\n\n\n\n In Australia<\/a>, domestic and international arbitrations are subject to different laws and regulations. <\/p>\n\n\n\n Domestic arbitration is governed by the Commercial Arbitration Act (\u201cCAA\u201d) of each State or Territory. The provisions of each CAA are materially the same, creating a uniform domestic arbitration law throughout Australia.<\/p>\n\n\n\n International arbitration is governed by the International Arbitration Act 1974 (Cth) (\u201cIAA\u201d). The IAA designates the UNCITRAL (\u201cUnited Nations Commission on International Trade Law\u201d) Model Law on International Commercial Arbitration (2006) (the Model Law)<\/a> as the exclusive, mandatory procedural law for all international arbitrations seated in Australia.<\/p>\n\n\n\n Accordingly, Australia provides mining and trading companies with a modern and transparent legislative framework for arbitration \u2013 whether their disputes are of a domestic or cross-border nature.<\/p>\n\n\n\n ACICA, as Australia\u2019s international dispute resolution institution, seeks to promote and facilitate the efficient resolution of commercial disputes throughout Australia and internationally.<\/p>\n\n\n\n The ACICA 2021 Rules<\/a>, which are based on the UNCITRAL Arbitration Rules 2021<\/a>, set a modern and efficient procedure for the conduct of arbitrations through the adoption of technologies and effective case management. Tribunals have innovative powers to streamline procedures and ensure a cost-effective process in the resolution of disputes. Notable provisions include:<\/p>\n\n\n\n ACICA\u2019s 2020 Report into Australian Arbitration<\/a> indicated that mining arbitrations made up approx. 12 to 13 % of all domestic arbitrations in Australia, to which ACICA was the preferred set of rules (albeit its earlier versions).<\/p>\n\n\n\n BITs are agreements between two countries that include rules to promote and protect two-way investment. As our Polish colleagues noted in their recent article<\/a>, BITs provide certainty and protections to foreign investors \u2013 both Australian investors overseas and foreign investors in Australia. They are particularly relevant to mining companies, whose activities can be impacted by the actions of the host state or a government entity.<\/p>\n\n\n\n A key component of the BITs framework is a right for investors to resolve disputes through international arbitration pursuant to a neutral forum \u2013 i.e.<\/em> according to a set of rules that are not influenced by a particular jurisdiction or region. BITs commonly provide for a dispute to be referred to the International Centre for Settlement of Investment Disputes (\u201cICSID\u201d)<\/a>, which is often preferable for foreign investors due to factors such as the ease of enforcement of awards under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) (\u201cICSID Convention\u201d)<\/a>. Australia has entered into several BITs with various countries, including Poland and Papa New Guinea, which gives certainty to Australian mining companies operating in such regions that any potential disputes can be resolved under an internationally recognised set of rules \u2013 such as ICSID Arbitration Rules 2022<\/a> or the UNCITRAL Arbitration Rules 2021<\/a>.<\/p>\n\n\n\n While there are many advantages to resolving disputes by arbitration in Australia, including its political stability and clear legislative framework, it is common for international mining contracts to provide for Singapore as the seat of arbitration and for any disputes to be referred to arbitration governed by the SIAC (Singapore International Arbitration Centre) Arbitration Rules (2016)<\/a>.<\/p>\n\n\n\n Singapore\u2019s prominence as an international commercial centre and its central location in the Asian-Pacific region means that a significant number of Australian mining disputes continue to be resolved within this jurisdiction.<\/p>\n\n\n\n ABOUT THE AUTHORS:<\/strong><\/p>\n\n\n\n Leon Alexander<\/strong> is a partner in the Singapore office of Clyde & Co<\/strong><\/a>. His practice focuses on advising commodities and energy multinational corporations. Leon has significant experience of multi-jurisdictional dispute resolution and handles claims both in court and arbitration proceedings including SIAC<\/a>, ICC<\/a>, LCIA<\/a>, GAFTA, FOSFA<\/a>, LMAA<\/a> and SCMA<\/a>.<\/p>\n\n\n\n William Page<\/strong> is a Special Counsel within the Energy, Marine and Natural Resources group at Clyde & Co<\/strong><\/a>. He acts for clients across the APAC region, including commodity traders, mining companies, insurers, banks, shipowners and charterers. As part of a team renowned for guiding mining and commodity companies across the APAC region\u2014whether in Australia, Singapore, or other jurisdictions \u2014 He regularly advises on contentious issues relating to the production, trading and transportation of hard and soft commodities. Most of his matters are cross-border and multiparty. Will has acted on several cases in the Federal Court of Australia and the High Court in London and has experience in domestic and international arbitration in various forums, including ICC<\/a>, LCIA<\/a>, LMAA<\/a>, UNCITRAL<\/a> and SIAC<\/a>. <\/p>\n\n\n\n Robbie Pilcher<\/strong> is an Associate in the Energy, Marine and Natural Resources Group based in Clyde & Co<\/strong><\/a>\u2019s Sydney office. Robbie has a range of contentious experience on energy, shipping and general commercial disputes, acting on matters before the English High Court and international arbitrations under LMAA<\/a>, GAFTA and FOSFA<\/a> Rules. Robbie has acted for a number of major international shipping and logistics clients on disputes which often have a cross-border element and have included parallel proceedings in such jurisdictions as Switzerland, Russia, and Hong Kong.<\/p>\n\n\n\n *The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.<\/em><\/em><\/p>\n\n\n\n <\/p>\n","protected":false},"excerpt":{"rendered":" Discover how Australia\u2019s modern arbitration framework and ACICA rules shape mining dispute resolutions locally and internationally.<\/p>\n","protected":false},"author":4,"featured_media":284426,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jnews-multi-image_gallery":[],"jnews_single_post":{"subtitle":"","format":"standard","video":"","gallery":"","source_name":"","source_url":"","via_name":"","via_url":"","override_template":"0","override":[{"template":"custom","single_blog_custom":"274736","parallax":"1","fullscreen":"1","layout":"right-sidebar","sidebar":"author","second_sidebar":"default-sidebar","sticky_sidebar":"1","share_position":"hide","share_float_style":"share-monocrhome","show_share_counter":"0","show_view_counter":"0","show_featured":"1","show_post_meta":"1","show_post_author":"0","show_post_author_image":"0","show_post_date":"1","post_date_format":"default","post_date_format_custom":"Y\/m\/d","show_post_category":"0","show_post_reading_time":"0","post_reading_time_wpm":"300","show_zoom_button":"0","zoom_button_out_step":"2","zoom_button_in_step":"3","show_post_tag":"0","show_prev_next_post":"0","show_popup_post":"0","number_popup_post":"1","show_author_box":"0","show_post_related":"0","show_inline_post_related":"0"}],"override_image_size":"0","image_override":[{"single_post_thumbnail_size":"crop-500","single_post_gallery_size":"crop-500"}],"trending_post":"0","trending_post_position":"meta","trending_post_label":"Trending","sponsored_post":"0","sponsored_post_label":"Sponsored by","sponsored_post_name":"","sponsored_post_url":"","sponsored_post_logo_enable":"0","sponsored_post_logo":"","sponsored_post_desc":"","disable_ad":"0"},"jnews_primary_category":{"id":"173","hide":""},"jnews_social_meta":{"fb_title":"Mining Arbitration Series - 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Milena Szuniewicz-Wenzel<\/a><\/strong>, Partner at Clyde & Co<\/strong><\/a>
Lola Dawson<\/strong>, Commercial Dispute Knowledge Lawyer at Clyde & Co<\/strong><\/a>
<\/p>\n\n\n\n
\n\n\n\nIntroduction<\/strong><\/strong><\/h2>\n\n\n\n
Navigating the Arbitration Landscape in Australia <\/strong><\/strong><\/strong><\/h2>\n\n\n\n
Domestic v International<\/strong><\/h3>\n\n\n\n
The ACICA 2021 Rules: Modernizing Arbitration in Australia<\/strong><\/strong><\/h3>\n\n\n\n
\n
\n
\n
\n
Bilateral Investment Treaties: Security for Mining Investments<\/strong><\/strong><\/strong><\/h2>\n\n\n\n
Australia v Singapore<\/strong><\/strong><\/h2>\n\n\n\n
\n\n\n\n
\n\n\n![\"\"](\"https:\/\/dailyjus.com\/wp-content\/uploads\/2024\/09\/2024-09-Clyde-and-co-1024x337.png\")
<\/figure>\n<\/div>\n\n\n