About Michael Lockhart

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So far Michael Lockhart has created 133 blog entries.

Australian Court highlights need to prove objective urgency when relying on “urgent relief” exception to arbitration clause

Allen & Overy Dispute arises in relation to the inspection of records The plaintiff, Power and Water Corporation (PWC), is a corporation owned by the Northern Territory Government. PWC was party to a Gas Sale Agreement (GSA) with the defendant, Eni Australia B.V. (Eni), a registered foreign company conducting business in Australia. Under the GSA, Eni agreed to sell gas to PWC in the amounts nominated by PWC. Where the supply of [...]

Cascading dispute resolution clauses and condition precedent: Mediation as a ‘may’ or a ‘must’?

DLA Piper by Gitanjali Bajaj, Gigi Lockhart & Mri Shankarla – DLA Piper, Sydney   Introduction Historically overshadowed by arbitration, mediation appears to be catching-up as a popular and sometimes even mandatory step in cascading dispute resolution clauses. The historical role of mediation, particularly in complex, cross-border contracts is typically characterised as a largely informal and in many cases, ad-hoc process.  If the process was contractually prescribed, it [...]

Australian Court clarifies the doctrine of functus officio in the context of bifurcated arbitration proceedings

Allen & Overy The Western Australian Court of Appeal has granted an application to set aside an arbitral award which allowed the claimant to plead a new case on a matter already decided. This was on the basis that the tribunal was functus officio and so lacked jurisdiction to do so. Dispute arises in relation to claims of functus officio and issue estoppel The appellants (the Contractors) entered into a joint venture [...]

International arbitration in South Korea: current status and recent developments

by Xiner (Philippa) Hu, UNSW JD Student and ADC Intern This article was first published in the LexisNexis ADRB, Issue 1, Volume 7 (November 2022). As Korea’s economic success story “miracle on the Han River” spread, it has simultaneously developed into a global innovation leader in the tech industry. Both feats, in less than half a century. Its alternative dispute resolution (ADR) techniques were, and continue to be, effective in facilitating cross-jurisdictional trade and commercial growth. This discusses critical [...]

CASE NOTE: Grieve (T/As BG Grieve Builder) v Gould [2022] WASC 413

by Joshua Banks & Dr Sam Luttrell, Clifford Chance, Perth In a recent decision,[1] the Supreme Court of Western Australia dismissed an application to remove an arbitrator pursuant to s 13(4) of the Commercial Arbitration Act 2012 (WA) (CAA) (the Application). This decision confirms that the legislation left no room for the 'reasonable apprehension of bias' test under the CAA. The same test was considered earlier in 2022 by Ball J [...]

The Curious Case of Conflicting Principles: Arbitration and Insolvency Interplay

By Samridhi Shrimali and Alay Raje Introduction Recent years have seen the rapid escalation of complex commercial investments, transactions, and volatile economic growth at a global level. Accordingly, the efficacy of dispute resolution mechanisms is ever more important. To facilitate this efficacy, however, is challenging when two legislative frameworks intersect, namely the laws of insolvency and arbitration.  To an extent, insolvency law has a centralised, formalistic mechanism and requires consolidation of all the claims and disputes concerning the debtor.[1] [...]

5th Annual ADR Address of the Supreme Court of New South Wales

“ADR and the Elusive Butterfly of Social Justice” The Hon. Robert French AC “This address reflects upon the interaction of alternative dispute resolution in its various manifestations with social justice in its various manifestations and the accompanying benefits and risks. Composing it has been something of a penance for choosing a title first and thinking about the content second. Neither ADR nor social justice is well defined and the content of the latter varies according to the world view [...]

Mediation Developments in Indonesia

*Sonal Okhade and Carol (Xinyu) Liu I INTRODUCTION Mediation plays an important role in the world of dispute resolution. The fact that mediation is preferred over litigation in some circumstances cannot be separated from its quick, cheap and effective process, as well as its inherent purpose to achieve a mutually acceptable win-win outcome.[1] This paper will firstly examine the main legislative developments for mediation in Indonesia. Based on these updates and issues with implementation, this paper will accordingly examine possible improvements; [...]

Arbitration Developments in Vietnam

*Linh Đoàn and Carol (Xinyu) Liu I INTRODUCTION The Vietnam National Assembly enacted the Law on Commercial Arbitration[1] (‘LCA’) on 1 January 2011. It is based on the the United Nations Commission on the International Trade Law Model Law to promote general and commercial arbitration. Recently, arbitration in Vietnam has gained momentum, as its domestic and international dispute resolution capability matures. This paper will examine three aspects of arbitration in Vietnam: (1) arbitral institutions, (2) recent Court’s decisions, and (3) recognition and [...]

“Emergence of a New Dimension to the Judicial System:” “AI” – A Threat or Boon?

*Aditya Gatlewar Abstract The robotic judge that was once only seen in science fiction films has finally become a reality. The COVID-19 pandemic underlined a greater need for innovation for resolving disputes as humans vacated our court rooms. But with machines potentially more innovative and considerably faster than the human brain, allowing them to operate as judges may pose a threat to the legal system. This article  examines the risks and benefits of such technology to evaluate whether it is a threat or a boon. Introduction The right to “Access to Justice” has been integral to the [...]

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