The recent 30th anniversary of the Chartered Institute of Arbitrators’ Australian branch provided a timely occasion to reflect on the country’s arbitration journey.
Over the past three decades, arbitration in Australia has transformed from a relatively niche dispute resolution mechanism to an increasingly sophisticated ecosystem supported by experienced practitioners, specialised institutions and a judiciary that is increasingly respectful of arbitral autonomy.
Throughout 2025, Ciarb Australia used this anniversary as a point of reflection, hosting a series of events across Australia. The Brisbane event attracted distinguished guests, including the Hon Justice Shane Doyle KC of the Queensland Court of Appeal, the Hon Justice Frances Williams of the Queensland Supreme Court, and former Federal Court Justice the Hon Andrew Greenwood, alongside leading silks, counsel and solicitors.
A highlight of the Brisbane event was a panel discussion featuring Federal Court Justice Sarah Derrington AM, barristers Dr Dominic Katter and Lucinda Brabazon and Chartered Institute of Arbitrators Australia Branch (Ciarb) President Geoff Farnsworth and moderated by Chartered Arbitrator Russell Thirgood examined the evolution of arbitration in Australia, assessed current priorities, and looked ahead to areas of reform and opportunity.
Promising Beginnings
The session opened with reflections on Australia’s arbitration journey over the past three decades. Mr Thirgood observed that, from humble beginnings, Australia has emerged as a significant exporter of legal talent and an active participant in the global arbitration community.
“The country’s legal culture, grounded in ethics and an outcomes-focused approach to dispute resolution, will be a source of credibility for the next 30 years,” he said.
In this respect, Ciarb plays an integral role in promoting substantive quality, procedural fairness and professional ethics in the field.
Dr Katter said 1995 was a formative year for Australia’s arbitration landscape.
“It was the year that the Australian branch of Ciarb opened and was also around the time that the digital transformation of the legal industry took hold.”
At the same time, Woolf civil procedure reforms were implemented in the United Kingdom and influenced procedural reform across the common law world. Back then, arbitration had not yet been embraced by Australian commercial parties as a preferred method of dispute resolution, though the shipping and commodities sector was an early adopter and shaped the work and scholarship of the branch’s early years.
Courts and Judicial Confidence
Justice Sarah Derrington reflected on the evolving role of the courts in fostering an arbitration culture in Australia.
“In the early days, courts had a chequered history with arbitration,” she said.
“While accepting of domestic arbitration, Australian courts were slow to accept international arbitration. Judges were reluctant to understand party autonomy as an essential aspect of an arbitration agreement, along with the role arbitration plays in dispute resolution more generally.
“This has shifted in the past 10 to 15 years. In 2024, the High Court of Australia took three arbitration matters.”
Minimal judicial intervention in arbitration proceedings is now the norm. The arbitration landscape has also become more competitive. Although New York remains a dominant seat of arbitration for shipping and commodities disputes, contemporary Australian judges are now more familiar with arbitration in their pre-judicial life, contributing to a judiciary that understands both the intricacies of the arbitral process and its underlying principles.
Developing Arbitration Talent
Ms Brabazon emphasised the role of university mooting competitions in developing Australia’s arbitration talent pipeline, reflecting on her own experiences competing on a champion team for the International Maritime Law Arbitration Moot.
The Willem C. Vis International Commercial Arbitration Moot, the world’s largest arbitration competition, has grown from one Australian team in 1993 to ten in 2025 — a year where the competition’s top three speakers were all Australian.
Ciarb and other institutions support this ecosystem through pre-moots (practice rounds bringing together multiple teams before the main competition), including for the Vis East Moot in Hong Kong, strengthening ties with the Asia-Pacific arbitration community.
Institutional Maturation and Collaboration
Reflecting on his experience in London in the 1990s, Mr Thirgood noted the remarkable speed with which Australian arbitration institutions have matured.
“Institutions like Ciarb, ACICA and the ADC contribute to the depth of understanding amongst the legal fraternity here and enhance commercial awareness of what arbitration has to offer,” Mr Thirgood said.
Fellowship programmes were described as a mechanism for building practitioner networks and growing the pool of arbitrators.
Mr Farnsworth observed that arbitration is increasingly viewed as a “no-brainer” for international commercial contracts.
“With the support of Supreme and Federal Court judges, we as a profession can highlight the distinction between litigation and arbitration and advocate for practitioners to make an informed choice and know that running a successful arbitration requires some different strategies and considerations,” he said.
He acknowledged that proposals for greater court engagement in encouraging parties to arbitrate have attracted mixed responses from the judiciary, despite their potential to ease strain on court resources.
Justice Sarah Derrington recognised that, because party consent is indispensable, courts cannot compel arbitration once seized of a matter, but there remains considerable scope to enhance institutional efficiency and encourage procedural flexibility.
Legislative Reform Opportunities
Turning to future reforms, Ms Brabazon identified two features of the UK Arbitration Act 2025 that merit consideration in Australia.
“A statutory presumption that the law governing the arbitration agreement is the same as the law governing the contract, where the parties have not expressly chosen the law governing their arbitration agreement, .
He said the second was legislative clarification that non-party beneficiaries may be bound by an arbitration clause in a trust instrument.
On the second proposal, Ms Brabazon explained that while trust issues are generally arbitrable, and high-net-worth individuals value confidentiality over disputes of that nature, issues arise where beneficiaries have not consented to arbitration.
Justice Sarah Derrington called for both proposals to receive serious consideration by the profession and drew parallels to recommendations by the Australian Law Reform Commission concerning family law disputes.
Future Trends: Neutrality, Productivity and Procedure
Her Honour also discussed what we might see over the next 30 years in terms of international scholarship and jurisprudence, noting that, at present, High Court arbitration cases have little recourse to serious arbitration jurisprudence from around the world.
Mr Thirgood added that it is incumbent on the arbitration world to maintain the confidence of the courts, in contrast to the many adjudication decisions that receive significant criticism in court judgments.
Speaking to the development of litigation into the future, Her Honour explained that: “active case management and parties tailoring aspects of procedure to the nature of their case is already happening.
“It is a myth that all litigation follows one path and parties can negotiate with the judge on how to best administer the case – a feature once attributed only to ADR,” she said.
Looking ahead, Dr Katter discussed neutrality, cooperation and enforceability in an environment of slowing multilateral treaty growth and world trade. Mr Farnsworth framed arbitration through a productivity lens, noting that rising costs to resolve disputes demand clearer differentiation between litigation and arbitration. He cautioned against treating arbitration as “litigation lite” and diluting its procedural advantages.
Finally, the panel agreed that persuasive advocacy in arbitration will continue to have a distinct human element, even as Artificial Intelligence reshapes how cases are prepared and presented.
Takeaways
Thirty years after Ciarb opened its Australian branch, Australia’s arbitration ecosystem has entered a phase of confident maturity: judicial intervention is limited, several complementary institutions advance education and foster a thriving arbitration community, and a new talent pipeline is emerging through legal skills competitions.
While judicial confidence in arbitration is now largely taken for granted, the challenge for the next 30 years is whether Australia can convert that confidence into sustained market relevance amid global competition, technological advance and shifting commercial preferences.
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