About Dr Benjamin Hayward

Dr Benjamin Hayward is a Senior Lecturer in the Department of Business Law and Taxation, at the Monash Business School, Monash University. His research interests span international commercial arbitration, the international sale of goods, private international law, and Australian contract, commercial, sales, and consumer law. Dr Hayward has a particular interest in how the applicable law is identified in international commercial arbitration, and the impacts of this for arbitration as a dispute resolution mechanism. He is the author of Conflict of Laws and Arbitral Discretion: The Closest Connection Test (Oxford University Press, 2017).

Striking the Right Balance between Maintaining Confidentiality and Educating the Community about Discrimination

By Dominique Allen

“ADR represents a symbolic harking back to a lost age when caring for others within a communal setting was of pre-eminent importance; it constitutes a reaction against the alienating and competitive style of dispute resolution fostered by an adversarial system.”

– Margaret Thornton, The Liberal Promise (Oxford University Press, 1990, 147)

Image: Unsplash

This year marks 30 years since Emerita Professor Margaret Thornton published The Liberal Promise, a critique of anti-discrimination law in which she argued that liberalism, in the form of anti-discrimination law, will be unable to achieve equality because it can do little to disrupt the power structures that maintain inequalities in society.

As Thornton writes, anti-discrimination law does not give people a right to be free from discrimination; it gives them a right to complain about their treatment. Now – as then – a person who has been discriminated against is required to lodge a complaint at their local equality agency or at the Australian Human Rights Commission. The agency must attempt to conciliate the claim before the complainant can proceed to a civil tribunal or to the Federal Court (other than in Victoria). Courts and tribunals usually attempt to resolve claims via mediation also.

In the chapter she devotes to conciliation, Thornton says that she is ‘equivocal’ about it. Her primary concern was that as the process is confidential, it can have little impact on discrimination in society; its effect is limited to the parties. She didn’t suggest that courts are the ideal forum for discrimination claims though. She writes that complainants find courts “hostile and alienating”, litigation is not well suited to dealing with the types of issues that arise in a discrimination claims, it is costly, and courts are not well equipped to deal with power imbalances, which are common in these disputes. Thus conciliation serves a valid purpose.

In this post, I consider whether Thornton’s concerns about conciliation still apply, drawing on interviews I conducted with barristers and solicitors in Melbourne and conciliators at the Victorian Equal Opportunity and Human Rights Commission in 2017-2019.

One of Thornton’s primary concerns was that although discriminatory acts take place “in the public arena”, the dispute resolution process does not allow public scrutiny of these acts. They must be dealt with confidentially and in a “non-threatening privatised environment”. A public hearing is a last resort.

I share her concern, particularly because in the three decades that have passed, the problem has been compounded by an increased use of confidentiality clauses (often termed Non-Disclosure Agreements).

My research revealed that confidentiality clauses are regularly included in settlement agreements. They prevent the complainant from discussing the nature of the complaint and the terms of settlement. Some are worded so tightly that they prevent the complainant from discussing the claim with anyone, even with a close family member. It is difficult for the law to have an educative effect when claims are privatised and hidden in this way.

However, the process may well educate on an individual level. Conciliators said that just by participating in the dispute resolution process and listening to the complainant talk about their experience, respondents can be educated about their legal obligations and may well introduce changes to their business or workplace as a result. In this way, the process itself becomes part of the solution and a way of addressing harm.

An advantage of conciliation, Thornton writes, is that it creates a space where complainants can achieve small victories which would be “unlikely, if not impossible” within the formal legal system. My interviewees confirmed this. They said that through conciliation, complainants negotiate changes to working arrangements, access to goods and services, modifications to the delivery of education, and compensation payments far in excess of what the tribunal is likely to award. The tribunal, by contrast, orders compensation, often at low amounts which may not be enough to cover the complainant’s legal fees.

So am I equivocal about conciliation? In my view it is an effective way for the parties to resolve the underlying issues that caused the dispute and potentially reach a shared understanding of what happened. They may even be able to maintain a relationship going forward, which is very important in the employment and education contexts.

Being heard and knowing that their complaint has been taken seriously is often very important to complainants. Litigation will not give them that opportunity. Nor are courts likely to make the systemic orders which are needed to tackle discrimination, whereas respondents do agree to wider outcomes at conciliation.

I’m in favour of conciliation with the qualifier that we must be aware of its limitations. Confidentiality precludes the law’s development, it may allow ‘repeat offenders’ to continue undetected and it hides the prevalence of discrimination in the community. We need to find ways to alleviate its limitations.

The balance has yet to be struck between the parties’ desire to contain the complaint and the community’s interest in knowing about the types of discrimination that still exist and how discrimination is being addressed.

Of Dry Cleaning, Arbitration, and International Commercial Courts: When Courts Can Learn From ADR

By Dr Benjamin Hayward and Dr Drossos Stamboulakis

‘Those of you who have been to a dry cleaner in the United States may have seen a sign that says, “Fast.  Good.  Cheap.  Pick two.”  What this means is that you can have your dry cleaning good and fast, but it won’t be cheap.  Or you can have it good and cheap, but it won’t be fast.  Or you can have it fast and cheap, but in that case it won’t be good.  What you can’t have is all three …

Some people … seem to think that what applies to dry cleaning doesn’t apply to international arbitration.” [1]

Image: Cosmocatalano, public domain

Alternative dispute resolution might be alternative to the courts, but that doesn’t mean it’s disconnected.

International commercial arbitration and the courts have an important, and mutually beneficial, relationship.  Arbitration relieves pressure on our civil justice system.  Courts use their powers to support the arbitral process and enforce arbitral awards.  Arbitration and the courts also can – and do – learn from each other.

This last notion might seem strange, given that arbitration was traditionally seen as quicker and cheaper than litigation.  The reality now, however, is that both arbitration and litigation can be time consuming and expensive.  In light of this reality, both dispute resolution mechanisms have sought to improve their procedures over time.  When arbitration innovates, courts learn.  And when courts innovate, arbitration learns too.

All the while, both dispute resolution mechanisms must also deal with inevitable tensions arising between speed, quality, and cost.

In recent years, a number of international commercial courts (ICCs) have been established around the world.  To take just two examples, there are ICCs in Singapore and also in China.  They exist as part of those countries’ regular (national) court systems, but they specialise in hearing international commercial cases.  Australia doesn’t yet have an ICC.  Establishing an Australian ICC has been proposed, though the idea is also controversial for some.

If an Australian ICC was to be established, in the future, what could it learn from arbitration?

Potentially, quite a lot: especially given that ICCs aim to attract disputants, and as a result, they might draw inspiration from some of arbitration’s ‘distinctive features’.

One of those features is the power held by parties to select their arbitrators.  Of course, you can’t pick your judge in court.  However, an ICC can be constituted by judges having a range of international backgrounds and having specialist international expertise.  Arbitration is also renowned for its procedural flexibility.  An ICC might take a more flexible approach to the taking of evidence, and the process of proving foreign law.  ICCs may similarly allow for representation by foreign lawyers.  An ICC might further learn from arbitration’s capacity to offer more limited discovery than traditional litigation.

As courts, however, ICCs also bring with them their own benefits.  They include, for example, the judiciary’s contribution to the ongoing development of commercial law via the doctrine of precedent, and its ability to offer greater and more directive case management features designed to promote proportionality in the pursuit of civil justice.  ICCs can also more readily act beyond the parties’ autonomy, such as by joining third parties to proceedings where beneficial and expedient to do so.

Though historically thought of as rivals, arbitration and the courts have always learned from each other. The genesis of ICCs merely makes this process explicit, shedding light on the ongoing and conscious hybridisation of dispute resolution procedures in commercial dispute resolution.  It is this potential for greater responsiveness to the needs of commercial disputants, premised upon procedural innovation in the pursuit of just and efficient outcomes, that underpins the potential of a future Australian International Commercial Court.

– – –

[1] Jennifer Kirby, ‘Efficiency in International Arbitration: Whose Duty Is It?’ (2015) 32(6) Journal of International Arbitration 689, 690.

The authors are members of the Monash University Faculty of Law’s Commercial Disputes Group.

Challenges and Opportunities for Asia-Pacific International Arbitration: Symposium Report, and News on a Forthcoming Publication

By Dr Benjamin Hayward, Professor Luke Nottage, and Dr Nobumichi Teramura

Photo: Faypearse, Creative Commons

On Friday 15 November 2019, Sydney Law School hosted the ‘Challenges and Opportunities for Asia-Pacific International Arbitration’ symposium.

The event addressed a range of dispute resolution issues: international commercial arbitration, investor-State dispute settlement (including investor-State mediation), and the rise of international commercial courts.  Academics, practitioners, and (both current and former) judges were in attendance: ensuring that a wide spectrum of views were addressed throughout the day.

The symposium focused on dispute resolution in the Asia-Pacific region.  This is a topic of significant interest to the Australian arbitration community.  As far back as 2009, the then-Attorney General Rob Hulls introduced reforms to Australia’s International Arbitration Act aiming to promote Australia as a regional dispute resolution hub.  More than 10 years later, this is a goal to which Australia still aspires.

The symposium addressed arbitration in the Australian, New Zealand, Japanese, Indonesian, Hong Kong, and mainland Chinese contexts.  It followed a counterpart event hosted by the University of Hong Kong in July 2019.

The symposium’s international comparisons provide much food for thought for the Australian arbitration community, as we seek to continually improve the local landscape.  For example, what degree of confidentiality should be preserved in Australian arbitral proceedings?  And what lessons can we learn from arbitration experience, in the region, relating to the possible future establishment of an Australian international commercial court?

A collection of papers presented at both events will be published in late 2020 (or early 2021) in a Kluwer volume titled New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution.  Details of the volume, including links to pre-publication versions of some papers, are available here.

Of particular interest in the Australian context will be:

* Professors the Hon Marilyn Warren and Clyde Croft’s chapter titled ‘An International Commercial Court for Australia: An Idea Worth Taking to Market’;

* Albert Monichino SC and Nobumichi Teramura’s chapter ‘New Frontiers for International Commercial Arbitration in Australia: Beyond the “(Un)Lucky Country”’;

* Luke Nottage addressing ‘Confidentiality and Transparency in International Arbitration: Asia-Pacific Tensions and Expectations’; and

* Luke Nottage and Ana Ubilava’s chapter on ‘Novel and Noteworthy Aspects of Australia’s Recent Investment Agreements and ISDS Policy’.

Readers of this blog might also be particularly interested in Stacie Strong’s chapter titled ‘Promoting International Mediation Through the Singapore Convention’, that Convention also having been addressed at the December 2019 ADRRN Roundtable.  This chapter will mention some empirical data from a study addressing the use of mediation in resolving international commercial disputes.

Interestingly, while Australia’s geographic isolation is thought to be impeding its emergence as a regional dispute resolution hub, COVID-19 has led to the rapid adoption of virtual hearings in civil litigation and in arbitration.  The pandemic may have unintentionally highlighted a means by which Australian arbitration and an Australian international commercial court could flourish in the region: notwithstanding the unavoidable ‘social distance’ between Australia and our neighbours.

These recent developments, post-dating the symposium, will be addressed in the forthcoming Kluwer volume.  They will be of great interest to those invested in Australia’s potential as a venue for international commercial dispute resolution.

International Commercial Arbitration, its Application of the Law, and the Flexibility of its Process

By Dr Benjamin Hayward

Photo: Dennis Jarvis, Creative Commons

In a previous contribution to the ADRRN Blog, I argued in favour of taking a little bit of flexibility away from international commercial arbitration.

In my previous post, I noted that while arbitration is ADR, it remains a type of formal dispute resolution.  It also involves application of the law.  Still, where a contract doesn’t include a choice of law clause, arbitrators have to identify the law they will apply.  My doctoral research explored the significant discretion arbitrators have in this regard.

That discretion is a problem if parties chose to arbitrate because they want enhanced certainty about their legal rights.  It’s even more problematic in some particular categories of case where arbitrators have to identify the governing law even after the parties tried to agree on this issue themselves.

I’ve been thinking a bit more about this topic following a recent episode of The Arbitration Station podcast, which included a really great discussion about becoming an arbitrator.  Co-host Brian Kotick made some interesting observations about this issue, set in the context of how arbitrators decide their cases:

‘[I]t’s all discretionary at the end of the day and you can’t really predict universally what’s to be decided … I think it depends on how you approach being an arbitrator.  I know some arbitrators, their approach is “I’m only going to decide on the arguments – legal arguments and factual arguments – that are presented to me”.  And if you take that approach I think it’s much easier because your intellectual curiosity will not lead you in the wrong direction …

Another approach is finding justice – “capital J justice” – in which case you’re going to kind of take a more active role, do your own independent research perhaps … in which case it’s much more difficult of a task …”

So is arbitration about applying the law, or is it about more general notions of commercial justice?  Or is the true position somewhere in between?  Parties can specifically agree to give arbitrators the power to decide based on principles of equity and fairness, but this is extremely rare.  What, then, is the best view of arbitration’s decision-making process where they don’t do so?

In 2013, the High Court of Australia decided a constitutional challenge to the validity of an important part of Australia’s International Arbitration Act.  In upholding the legislation, it conceptualised the role of courts in enforcing arbitral awards as holding the parties to their initial agreement to arbitrate: rather than merely rubber-stamping arbitrators’ legal analyses.  The Court also held that there is no strict legal rule, in international commercial arbitration, that arbitrators must apply the law correctly.

This gets us part-way to the answer.  For a bit more, we can look to the grounds for challenging arbitral awards.

Under the Model Law and the New York Convention, both adopted in Australia, these grounds don’t include an error of law.  They do include public policy grounds.  Public policy doesn’t cover arbitrators’ ordinary legal errors, but it might cover very significant infringements of fundamental legal principles, such as the rule against double recovery.

Of more interest to me, however, is the ground relating to arbitrators not following the parties’ agreed procedure.  Application of the law is a matter of substance, but identifying what law to apply in the first place is a procedural question.  As I’ve discussed previously on this blog, arbitration laws and rules give arbitrators significant discretion in identifying the governing law.  However, they do still set out at least broad frameworks for making that decision.

While potential mistakes in the law’s application are just part and parcel of choosing arbitration as a form of ADR, in my view, parties remain protected against arbitrators violating the procedure required for identifying that law in the first place.

This is an idea I’ve been interested in for a while now.  What does it say about the exact nature of decision-making in international commercial arbitration?  I’m not yet sure, but I’m looking forward to exploring that question in my future research.

Researcher Profile: Meet Ben Hayward

Ben Hayward

About Ben

I am a Senior Lecturer in the Department of Business Law and Taxation at the Monash Business School, and completed my PhD at the Monash Law Faculty in 2015. I’ve previously worked at the Deakin Law School, and in private practice at Arnold Bloch Leibler Lawyers & Advisers.

I’ve been working in academia for over 10 years now, and (alternative) dispute resolution has been a constant theme running through my teaching and research duties. I’m a member of the Australian Dispute Resolution Research Network, ACICA 45, the Asia-Pacific Forum for International Arbitration, the ICC Young Arbitrators Forum, ICDR Young & International, the Moot Alumni Association, Young ICCA, and the Young International Arbitration Group. Within my Department, I co-direct our International Trade and International Commercial Law research group alongside my colleague Dr Nicola Charwat: we look after the private and public international law sides of the group’s profile, respectively. I’m also known to be a card-carrying AGLC-pedant, and like to bring my keen attention to detail to my academic work in general.

Outside of university life, I live with my wife and daughter in Kensington: a warm and community-focused suburb apparently hiding fairly well within the otherwise-bustling inner city of Melbourne. When I’m in that grey zone in-between work and home, you’ll find me with headphones on listening to some great dispute resolution podcasts including The Arbitration Station and its spiritual predecessor, International Dispute Negotiation.

Ben’s Dispute Resolution Interests

My interest in dispute resolution was ignited by my participation, as an undergraduate law student, in the Willem C Vis International Commercial Arbitration Moot: a fantastic annual event held in Hong Kong and Vienna, where teams of law students from around the world argue an international sale of goods dispute within an international commercial arbitration setting. Having no prior exposure to arbitration, I was immediately fascinated by the fact that it is an alternative to State court litigation, yet is still anchored in the law: arbitrators aren’t judges and their decisions can’t be reviewed on the merits, but they still determine the facts and apply the law when resolving commercial disputes. After joining the Deakin Law School, I was fortunate enough to coach its Vis Moot teams for nine years, and really enjoyed the opportunity to introduce tomorrow’s lawyers to the world of arbitration as well.

International commercial arbitration also fascinates me because of its intersections with international sales law and private international law: much of my academic research has explored the overlap between these three areas of law.

Ben’s Research

My PhD is a good example of this: it addressed how arbitrators identify the law that they will apply, in an international commercial arbitration, where the parties have not included a choice of law clause in their contract. Undertaking my PhD research, and then its revision ahead of its publication as a book, was an interesting exercise in balancing some very different perspectives: on the one hand, that arbitrations are usually resolved on the facts, and on the other, that the applicable law can drastically affect the outcomes of cases. Since arbitrations are usually private/confidential, secondary sources made an important contribution to this work, though I also enjoyed the opportunity to delve into the world of published arbitral awards wherever I could, including extracts from International Chamber of Commerce cases.

In the dispute resolution space, I’ve published papers addressing Australia’s arbitration laws, as well as international commercial arbitration more generally. I’ve also got a keen interest in the United Nations Convention on Contracts for the International Sale of Goods, including its Australian implementation, and have several papers addressing these topics too. You’ll find many of my papers available on SSRN here, and I tweet about my research at @LawGuyPI here. I enjoyed the opportunity to present a work-in-progress paper at the ADRRN Roundtable held at La Trobe Law School in December 2019, and this project is still ongoing: I’m trying to reconceptualise the criteria we use to evaluate developments in Australia’s arbitration laws, with a view to informing future law reform initiatives. Thanks to all who attended my session for their very valuable feedback: I have lots of helpful suggestions to work on from here!

Engagement and Impact in Dispute Resolution Research

One of the things I find really great about arbitration law research is the opportunities I have to engage with private practice, and my work’s potential for professional impact. I’ve enjoyed several opportunities to contribute submissions to consultations on arbitration rules reforms, like this one here. I’m also aware that my publications have been used on several occasions to inform legal advice, and the conduct of cases. It’s a bit of a cliché to say that law journal articles are written just to be published, and not actually read: not true in the ADR field!

Next Steps

In addition to progressing the arbitration law project I presented at ADRRN 2019, I have a few other projects spanning arbitration law, sales law, and private international law in my research pipeline. I’m looking forward to staying connected with the ADRRN community and sharing the results of this work as it unfolds! If you have an interest in these areas yourself, you’re very welcome to get in touch: you can contact me at benjamin.hayward@monash.edu.