THE HIGH COURT OF AUSTRALIA AND ARBITRATION: KEY INSIGHTS FROM CARMICHAEL, TESSERACT AND CHEVRON

Abstract

The High Court of Australia’s decisions in Carmichael, Tesseract and Chevron show that the principle of minimal curial intervention in arbitration in Australia remains contentious. Minimal curial intervention is an important principle in Australian arbitration law as it is based on the UNCITRAL Model Law. Consistent with the principle of party autonomy, it recognises that the parties have decided to resolve disputes through arbitration, in preference to and the (partial) exclusion of the courts.

In Carmichael, the High Court recognised its obligation to enforce binding arbitration agreements despite any purported burden or inconvenience for the parties. Whereas Tesseract and Chevron show that there is no uniform practice in curial intervention under Article 34 of the Model Law. This lack of a unified approach raises important questions about the future direction of arbitration jurisprudence in Australia.

The article answers:

• what ‘minimal’ curial intervention in arbitration means
• when does the High Court of Australia think curial intervention is warranted
• what is the ‘state of arbitration’ in Australia