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Abstract

[The Queensland Court of Appeal handed down its decision in Australian Granites Ltd v Eisenwerk Hensel Bayreuth Dipl-Ing Burkhardt GmbH, in which the legal framework governing Australia’s international commercial arbitration was reviewed and the ‘Eisenwerk’ principle was established. What was ascertained was that the adoption of arbitration rules were believed to comprise a displacement of UNCITRAL Model Law on International Commercial Arbitration, with a number of legal practitioners and scholars criticising the approach taken by the Eisenwerk decision. On 11 August 2010, the New South Wales Supreme Court reviewed the Eisenwerk principle in Cargill International SA v Peabody Australia Mining Ltd, and nine days later, the Queensland Court of Appeal provided a different interpretation to that of Cargill, in Wagners Nouvelle Caledonie Sarl v Vale Inco Nouvelle Caledonie SAS. The diverse approaches taken by both cases have generated controversy regarding the Eisenwerk principle, and also to the amended 2010 legislation governing international commercial arbitration in Australia. Therefore, in order to provide an analysis of Australia’s reputation as a centre for international commercial arbitration, this essay will explore both Eisenwerk and Wagners. In doing so, it will discuss s 21 of the International Arbitration Amendment Act 2010 (Cth) and will argue that Wagners did miss a critical opportunity to reverse the Eisenwerk decision, in the hope of restoring Australia’s reputation as a centre for international commercial arbitration. In the process of providing an analysis of both cases, the issue of whether the impact of the Eisenwerk decision was negated by amendments to the International Arbitration Act 1974 (Cth) will be reviewed. This essay will finally provide a detailed analysis on new reforms to current legislation in the hope of demonstrating Australia’s future prospects as a ‘centre’ for international commercial arbitration.]

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