Answer ... (a) Procedure, including evidence?
Unless the parties agree otherwise, the tribunal has the power to conduct the proceedings as it sees fit, subject to the provisions of the UNCITRAL Model Law (Model Law, Article 19).
In the absence of agreement between the parties, the tribunal’s discretion includes determining:
- evidential matters (including the admissibility, relevance, materiality and weight of any evidence) (Model Law, Article 19(2));
- the place of arbitration (Model Law, Article 20); and
- the languages to be used (Model Law, Article 22).
(b) Interim relief?
Unless the parties agree otherwise, the tribunal may order a party to:
- pay security for costs (IAA, Section 23K);
- maintain or restore the status quo (Model Law, Article 17(2)(a));
- take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself (Model Law, Article 17(2)(b));
- provide a means of preserving assets out of which a subsequent award may be satisfied (Model Law, Article 17(2)(c)); or
- preserve relevant evidence (Model Law, Article 17(2)(d)).
Despite Article 17B of the Model Law, which provides for ex parte relief where an interim measure may be frustrated by disclosure of the request, Section 18B of the IAA specifies that no party to an arbitration may request a preliminary order on an ex parte basis and no tribunal may make such an order.
(c) Parties which do not comply with its orders?
Article 25 of the Model Law (which is applicable in the absence of a contrary agreement by the parties) sets out the consequences of a party’s default:
- If a claimant fails to communicate its statement of claim in accordance with Article 23(1) of the Model Law, the tribunal shall terminate the proceedings (Model Law, Article 25(a));
- If a respondent fails to communicate its statement of defence in accordance with Article 23(1) of the Model Law, the proceedings may continue and the failure will not itself be treated as an admission of the claimant’s allegations (Model Law, Article 25(b)); and
- If a party fails to appear at a hearing or to produce documentary evidence, the proceedings may continue and an award may be made on the evidence before the tribunal (Model Law, Article 25(c)).
The consequences outlined above are subject to the safeguard that the defaulting party must have defaulted without showing sufficient cause for the failure to comply (Model Law, Article 25).
(d) Issuing partial final awards?
There is no express restriction in the IAA that prevents the issuance of partial final awards. However, in contrast to other Model Law jurisdictions (including Singapore, where courts have clarified that partial and interim awards are also ‘final and binding’, and therefore enforceable – see, for example, PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation [2015] 4 SLR 364 at [46]–[58]), the question of whether a partial award – such as a ‘final’ award on liability pending calculation of quantum – is binding, and therefore enforceable in its own right, has not been definitively settled in Australian courts.
(e) The remedies it can grant in a final award?
The IAA does not limit the availability of final remedies. In the absence of any limits imposed by agreement between the parties, the tribunal can award any remedy that would be available to a court having jurisdiction over the same subject matter. This includes awarding damages, ‘final’ injunctions, specific performance and declarations. As discussed further at question 10.1, pursuant to Section 27 of the IAA, the tribunal is expressly empowered to make an award as to costs.
(f) Interest?
Unless the parties have agreed otherwise, tribunals are expressly empowered to order the payment of pre-award interest (IAA, Section 25) and to award interest (including compound interest) at a “reasonable rate”, from the date specified in the award as the due date for payment up to the date of payment (IAA, Section 26(2)).