LawTalk - Arbitration Amendment Act 2019 & Trusts Bill 2017

The Arbitration Amendment Act 2019 does much to address current issues in arbitration law, both nationally and internationally.  Specifically, the issues arising from the Singapore Court of Appeal decision of Justice Menon in Astro v Lippo, and the long overdue removal of the quick draw procedure for appointing arbitrators (inherited from the NSW legislation), recommended for removal by the Law Commission in 2003.

Issues left on the table are the failure to properly address the technical invalidity of the agreement to arbitrate raised in Carr v Gallaway Cook Allan, and arbitration of trusts disputes.  My article on the Arbitration Amendment Act can be read here:

the arbitration amendment act 2019.pdf

In relation to the arbitration of trust disputes, this was originally covered in the first draft of the Arbitration Amendment Bill, drawn from the ballot in 2017.  The provisions were relatively straightforward, and effectively arbitration provisions commonly included in trust deeds.  As the Justice and Electoral Select Committee was considering the Trusts Bill at the same time, it was agreed that the proposed amendments would be carried over from the Arbitration Amendment Bill to the Trusts Bill; and there the proposal died.

I can only say that the alternative dispute resolution section of the Bill proposes a procedure which is something other than arbitration.  Principally, as the clauses do not deal with validation of the arbitration provisions as "agreements to arbitrate" in terms of the Arbitration Act, it is unlikely any award under the proposed Bill would be enforceable under the NY Convention;  oddly, the arbitration provisions in a trust deed, despite being validated in the Bill, would only be enforceable at the discretion of the court; and any representative of unascertained beneficiaries, or other beneficiaries lacking legal capacity, would only be bound by an award if it agreed to it.  It is effectively a power of veto if the arguments advanced by counsel for the unascertained beneficiaries did not find favour with the arbitral tribunal.  For any potential litigant, this would have to be a very unattractive proposition.

This is all rather odd.  It's as if, despite the brave words in support of NZ as an arbitral centre, and the commitments to the UNCITRAL Model Law and the NY Convention which have been in our Act since it passed in 1996, there is profound mistrust, or perhaps more profound lack of understanding, of modern arbitration.  My LawPoints article is linked below:

Are we there yet?