Commercial arbitration is a dispute resolution process whereby parties to a contract have agreed that an independent individual, acting as a private judge, finally determines the parties’ dispute and that determination is to be binding upon and enforceable by the parties.

For over 25 years we have protected the reputational and financial interests of our clients, mainly construction companies by ensuring their legal disputes are decided by private arbitrators. We have conducted hundreds of successful arbitrations in that time.

Our clients’ commercial disputes must be resolved quickly and confidentially. We achieve these goals by using, sometimes insisting on, the arbitration process instead of the courts and tribunals procedures.

Previous successful published cases in which Will Vogt’s clients have forced the parties to their dispute into the confidential environment of the arbitration process are found here:

• Shakur v Aintree Holdings Pty Ltd T/A Beaumonde Homes [2015] WASAT '12;
• Henderson v Aintree Holdings Pty Ltd [2021] WASAT 113.

Some of the benefits of the arbitration process that are not afforded by the courts and tribunal procedures are:

1. The entire arbitration process is conducted in private and the decision or ‘award’ is confidential;
   The arbitrator’s decision or ‘award' is enforceable in the same way that a decision of a court or tribunal is enforceable;
2. The arbitration process is less formal than the court and tribunal procedures resulting in a faster and cost-effective outcome;
3. The arbitrator is a specialist in the area of law or field of industry (such as building and construction);
4. The parties may agree on who the arbitrator will be;
5. There are usually no limits as to the nature and extent of the claims a party may make, whereas, typically, tribunals have limitations on the nature and extent of the claims brought to the tribunal;
6. The parties may agree on the procedural steps to be followed in preparation for the final hearing of the dispute;
7. The arbitration decision or ‘award’ is final and there is a very limited appeal avenue;
8. The successful party in the arbitration is usually entitled to recover legal costs from the unsuccessful party.

Whether a matter is capable of referral to an arbitrator is determined by the scope of the arbitration agreement in the relevant contract.

The process of arbitration is generally governed by relevant legislation in each state, including:

• Commercial Arbitration Act 2012 (WA);
• Commercial Arbitration Act 2013 (QLD);
• Commercial Arbitration Act 2010 (NSW);
• Commercial Arbitration (National Uniform Legislation) Act 2011 (NT).

Most of the standard residential building contracts in Western Australia have the effect that:

1. the Parties are at liberty to commence proceedings in a Court or Tribunal in relation to the facts which give rise to their dispute; however,
2. in the event that one party commences proceedings against another party in relation to an agreement which contains an arbitration agreement, the other party is at liberty to apply to the Court or Tribunal to refer the matter to an arbitrator up until the other party files its first case statement in those proceedings.

Vogt Legal has vast experience providing legal advice and services in relation to commercial arbitrations, including:

• Advising about the terms of arbitration clauses in contracts;
  Advising in the nomination of an appropriate arbitrator under the terms of the relevant arbitration clause;
• Advising about the necessary expert witnesses (e.g building inspector, engineer, quantity surveyor, architect) to quickly secure to provide expert evidence at the arbitration hearing;
• Representing clients in the arbitration process and final hearing;
• Enforcing a decision or award made by an arbitrator;
• Advising on any appeal of an award made by an arbitrator.

Contact Vogt Legal when you think arbitration may be the dispute resolution process that you require to protect your financial and reputational interests.

The above information is general in nature and should not be relied upon as legal advice. You must obtain legal advice specific to your circumstances.