Book Review – Arbitration and Dispute Resolution in the Resources Sector: An Australian Perspective

Arbitration and Dispute Resolution in the Resources Sector: An Australian Perspective.

Gabriël Moens and Philip Evans (eds), Springer International Publishing, Switzerland, 2015, 259 pages: ISBN9783319174518. Hardcover $170.9

Review by Dylan McKimmie

In the foreword to Arbitration and Dispute Resolution in the Resources Sector: An Australian Perspective, Chief Justice Wayne Martin draws attention to the book’s timeliness, with particular reference to two developments. First, Australia has consolidated its position as a significant supplier of natural resources and as a participant in global resources projects. Second, the enactment of the Commercial Arbitration Act 2012 (WA) and other uniform legislation throughout Australia (with the exception of the ACT) reflects an important turning point in the evolution of domestic and international disputes involving, in some part, governance by Australian law. The Chief Justice wrote these comments prior to the establishment of the Perth Centre for Energy and Resources Arbitration, but it can also be said that PCERA coming into existence also reflects these developments.

Gold mine

Arbitration and Dispute Resolution in the Resources Sector: An Australian Perspective is a compilation of papers that set out to offer an Australian perspective on the resolution of disputes in the resources sector, with a particular focus on arbitration. The contributions by esteemed practitioners, academics, arbitrators, mediators and adjudicators came out of a conference on arbitration and the resources sector held by the Australian Centre for International Commercial Arbitration in May 2013.

The editors cite academics, dispute resolution professionals and practitioners as persons to whom this book will be of interest.

The book contains 12 substantive chapters, together with an introduction by the editors that summarises each of the chapters that follow. Seven chapters relate to the arbitral process: the importance of arbitration, the framework for international and domestic arbitration, the drafting of arbitration clauses, the enforcement of arbitral awards, and observations as to recent judicial trends and reform of the domestic arbitration landscape following the enactment of uniform domestic arbitration. The remaining chapters canvas alternate methods of dispute resolution, including mediation, statutory adjudication, and investor-state arbitration. All of the relevant Australian, and many of the relevant regional, court decisions as at the time of writing are considered throughout the book, and the technical elements are mixed with practical guidance about key aspects of dispute resolution in the resources sector.

For practitioners, the insights offered in the discussion of a range of issues in the drafting of arbitration clauses (Ch 4), the power to stay court proceedings and enforce arbitration agreements and arbitral awards (Ch 5), and recent international commercial arbitration and investor-state arbitration developments (Ch 9), will likely be of particular interest. Beyond the discussion of decisions of Australian courts and the various State and Federal arbitration legislation, the ‘Australian perspective’ offered is at times tangential or relatively high-level.

Arbitration and Dispute Resolution in the Resources Sector: An Australian Perspective provides a sound overview, and is a solid starting point, for practitioners and scholars working in this complex and evolving field. However, by reason of its origins as a collection of shorter conference papers, it cannot deal with some of the intricacies in this area of the law in the detail that might be wanted by some readers.

Dylan McKimmie is a disputes and regulatory partner at Norton Rose Fulbright, based in the Perth office.

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Daniella Harlan