International law and arbitration in Australia

My report co-authored with Dr Stephen R. Tully on international legal developments within Australia over the past year has now been published by theAmerican Bar Association Section of International Law. Our report can be found in (2017) 51 International Legal Developments Year in Review: 2016 at 579-82. https://www.americanbar.org/content/dam/aba/administrative/international_law/YIR%202017_cpy.authcheckdam.pdf

New Gas Pipelines Access Arbitration Regime Commences

Australia's gas markets are changing rapidly and undergoing significant structural change. Australia is on the cusp of becoming the world's largest liquefied natural gas (LNG) exporter, having seen investment of more than $200 billion in the past decade. 

The East Coast gas markets are now interconnected and natural gas flows are more dynamic so gas can move across the network to where it is needed. The markets are also adjusting to emerging exposure to international gas prices as the export of gas from the East cCoast occurs for the first time.

In August 2016, the Council of Australian Governments Energy (COAG) Energy Council announced a comprehensive Gas Market Reform Package to drive the achievement of its Australian Gas Market Vision for a liquid wholesale gas market where an efficient reference price provides signals for investment and new gas supply.

In December 2016, the COAG Energy Council agreed to implement a new commercial arbitration framework for pipeline access disputes. The National Gas Rules govern access to natural gas pipeline services and elements of broader natural gas markets. The Rules have the force of law, and are made under the National Gas Law

The decision to implement a new commercial arbitration mechanism, effective 1 August 2017, followed an Examination of the Current Test for the Regulation of Gas Pipelines which highlighted the unequal levels of bargaining power and access to information that shippers face when seeking access to pipeline services. 

The design of the arbitration mechanism draws on both general commercial arbitration principles and negotiate-arbitrate infrastructure access regimes. The design is intended to provide greater certainty about the duration and the cost of arbitration, principally by requiring exchange of all information that might be relied on in arbitration during negotiations (including expert reports) and through short time frames for conduct of the arbitration. Arbitrators will be required to make a determination within 50 business days (with possible extension to 90 days). 

In making determinations, arbitrators will be required to have regard to guidelines and principles in the NGR. The overriding principle is that terms of access should be consistent with outcomes reasonably to be expected in a workably competitive market. The pricing principles require prices to be cost reflective. Arbitration is therefore likely to focus on these issues.

This new approach to focusing on negotiated outcomes between pipeline owners and shippers represents an alternative to the economic regulatory approach with which the gas industry is familiar.  Parties have the opportunity to reach a commercial outcome without the need for third party intervention. Where parties are unable to reach agreement a commercial arbitrator may be called upon. In short the approach aspires to promote commercial outcomes and resolve disputes in a commercial, timely and cost effective manner. 

 

International Bar Association Annual Conference Panel on Advocacy in Arbitration

Dominique Hogan-Doran SC has accepted an invitation from former Chairman of the Bar of Ireland David Barniville SC to join him on the panel "What role has good advocacy in mediations and arbitrations?" co-presented by the International Bar Association's Forum for Barristers and Advocates and the ArbitrationLitigation and Mediation Committees, at the IBA Annual Conference in Sydney on 10 October 2017.

What role has good advocacy in mediations and arbitrations? The archetypical advocate appears in court, before a judge, arguing a case and cross-examining witnesses. They are eloquent, engaging and easily able to meet the demands of a dynamic trial process. However, the opportunities for practising in that way are dwindling. The classical trial is now thought to be too long, too expensive and too risky. By contrast, there are increasingly more opportunities for mediation and arbitration. What is the difference? Can the skills of the great trial advocate be used in the mediation room? What are the techniques that must be learned and refined to excel in mediations and arbitrations?

Registration for the 5 day conference is now open: https://www.ibanet.org/Conferences/sydney-registration.aspx.

Commercial Arbitration in Australia: Australian Capital Territory joins uniform framework

Since 2010, all Australian States and Territories have adopted and enacted versions of the Model law creating a uniform framework for domestic arbitration in Australia; the Australian Capital Territory is the most recent, with its legislation commencing on 1 July 2017.

The laws harmonise the procedures for resolution of such disputes with those applicable to the resolution of international commercial disputes under the International Arbitration Act 1974 passed by the Commonwealth parliament.

The Acts facilitate the use of arbitration agreements to manage domestic commercial disputes by adopting the provisions of the United Nations Commission on International Trade Law Model Law on International Commercial Arbitration, taking into account the Commonwealth Act, and with appropriate modifications for domestic commercial arbitration.

The Acts also contain a number of additional provisions supporting the arbitration process and some optional provisions which may be used by the parties to an arbitration agreement should a dispute arise between them. These include provisions relating to assistance from the Supreme Court of a particular State or Territory (or another court nominated by the parties), the consolidation of arbitral proceedings, the disclosure of confidential information and the awarding of interest and costs. The Acts also provide for the issue of subpoenas, and the recognition and enforcement of awards with respect to domestic commercial arbitrations. 

Essential Services Commission of South Australia's Panel of Arbitrators

Effective 10 February 2017, Dominique Hogan-Doran SC was appointed to the Essential Services Commission of South Australia Arbitrator Panel for the determination of third party access disputes in the electricity, gas, water & sewerage infrastructure, ports and rail industries in South Australia. Arbitration may be required in a dispute over access to regulated port, water or rail infrastructure, where conciliation has not been successful.

The Commission an independent economic regulator established under the Essential Services Commission Act 2002 (SA) and successor to the South Australian Independent Industry Regulator.

The Commission’s objective is the: “protection of the long term interests of South Australian consumers with respect to the price, quality and reliability of essential services.

It performs a range of functions across the different industries it regulates, including pricing, licensing, performance monitoring and reporting, compliance and scheme administration.

National Broadband Network (NBN) Arbitral Panel

Dominique Hogan-Doran SC has been appointed an Arbitral Pool Member for determination of disputes arising between NBN Co and its Customers. NBN Co was established in 2009 to design, build and operate Australia's new high-speed, wholesale local access broadband network

Dominique's appointment is pursuant to the dispute management regime included in the NBN Co's Special Access Undertaking given to the Australian Competition & Consumer Commission under section 152CBA(2) of the Competition and Consumer Act 2010 (Cth). The term of appointment is 2 years.

http://www.nbnco.com.au/sell-nbn-services/supply-agreements/dispute-management.html