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39 Austl. & N.Z. Mar. L.J. 1 (2025)

handle is hein.journals/ausnewma39 and id is 1 raw text is: The High Court of Australia and Arbitration THE HIGH COURT OF AUSTRALIA AND ARBITRATION: KEY INSIGHTS FROM CARMICHAEL, TESSERACT AND CHEVRON Geoff Farnsworth* and Meru Sharma** 1. INTRODUCTION In 2024, the High Court of Australia handed down judgments in three cases concerning arbitration: • Carmichael Rail NetworkPty Ltd as Trustee for the Carmichael Rail Network Trust v BBC Chartering Carriers GmbH & Co KG & Anor [2024] HCA 4 (Carmichael), decided on 14 February 2024, which dismissed an appeal from the Full Federal Court of Australia • Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24 (Tesseract), decided on 7 August 2024, which allowed an appeal but affirmed the decision of the Court of Appeal of South Australia • CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28 (Chevron), decided on 14 August 2024, which dismissed an appeal from the Court of Appeal of the Supreme Court of Western Australia.* These decisions provide guidance on arbitration law and practice in Australia1 and shed light on the relationship between courts and arbitration, particularly the extent and limits of judicial intervention. A close review of the decisions demonstrates the High Court's recognition of its critical role in upholding the binding nature of arbitration agreements under section 7 of the International Arbitration Act 1974 (Cth)(International Arbitration Act) (similar to Article 8 of the UNCITRAL Model Law on International Commercial Arbitration (Model Law) and section 8 of the state Commercial Arbitration Acts(Arbitration Acts)),2 while simultaneously revealing a diversity in its approach to intervening in ongoing arbitrations through Article 34 of the Model Law. Below, we answer: • 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 2. CURIAL INTERVENTION IN ARBITRATION Minimal court intervention in arbitration is critical to modern arbitration practice and law as: • limiting domestic curial intervention is necessary to maintain the Model Law's uniformity with general international arbitration practice • minimal curial intervention is an essential aspect of the principle of party autonomy, which itself is an essential basis for the drafting of the Model law. 2.1 MAINTAINING INTERNATIONAL UNIFORMITY The Model Law is a codification of contemporary international arbitration practice. It reflects worldwide consensus on key aspects of international arbitration practice having been accepted by States of all regions and the different legal Partner Holding Redlich Lawyer Holding Redlich Together, the judgments may serve as authorities for various principles governing arbitrations including principles that relate to the interpretation of arbitration agreements in cargo damage claims, stay of foreign arbitration for domestic court proceedings, the applicability of proportional liability regimes in arbitrations, the meaning of law of the land, the manner of adapting or altering the substantive law of the land to fit an arbitration context, the final and binding character of awards, the status of an arbitrator after a final arbitral award, the jurisdiction/admissibility distinction', and the Court's standard of review in relation to arbitral awards. The judgments also provide important guidance on multiple aspects of arbitration practice and procedure, including the drafting of arbitration agreements, the conduct of legal representatives in arbitration, the role of arbitrators in determining disputes, and the conduct of domestic and international parties engaged in an arbitration. 2 See, eg, section 8 ofthe Commercial Arbitration Act 2010 (NSW). (2025) 39(1) ANZ Mar LJ 1