As noted in my July 2010 blog ‘A return to Arbitration?’, Australia’s domestic arbitration regime is currently the subject of legislative reform with each state and territory agreeing to adopt the Model Law. 

This raises the questions:

• will adoption of the Model Law improve the effectiveness of arbitration as an ADR process and make it a more attractive ADR option, or
• will its success depend on arbitrators taking full advantage of the new legislative framework in managing the process.

Declining popularity of arbitration

In the 1970s and 1980s construction disputes were commonly resolved by arbitration.  Increasingly, arbitral awards were challenged on the basis of ‘technical misconduct’.  The technical misconduct umbrella opened to include requiring arbitrators to write detailed decisions to a standard similar to a judge’s judgment.

The arbitration process became more cumbersome and time consuming as arbitrators managed the process more cautiously, mirroring procedures used in civil litigation (although ironically not the fast tracking procedures adopted in case management regimes in commercial lists) in order to avoid challenge on the basis of technical misconduct. 

New Law – New opportunities

In May 2010, the states and territories agreed to overhaul the current domestic arbitration regime and adopt the Model Law.  New South Wales has lead the way with its Commercial Arbitration Act 2010 (NSW) (NSW Act) commencing operation on 1 October 2010.  

The new legislative framework, which is expected to be adopted by the remaining states and territories, enhances the arbitrator’s role as the master of the process.  It opens up an opportunity for arbitrators to restore arbitration to its former glory as a efficient, informal and cost effective ADR process.

Examples of amendments that should instil confidence in arbitrators to manage the process effectively include:

• clarification that the parties are to be given a ‘reasonable’ opportunity to state their case; including power to order a stop clock arbitration;
• imposing a direct obligation on the parties to do all things necessary for the proper and expeditions conduct of the proceedings;
• the power to dismiss proceedings in the face of inexcusable delay
• powers to grant interim measures such as disclosure, security of costs, costs and damages and preservation orders; and
• most significantly the removal of the court’s power to set aside an award for technical misconduct and the provision of limited appeal rights. 

End result?

Changing the domestic arbitration procedural rules alone may not be enough to make arbitration a more attractive ADR option.  The onus is on parties, their advisors and ultimately arbitrators to utilise the tools provided by the Model Law.  Whether the Model Law delivers on its promise to provide a fast, fair, cost-effective and less formal option for resolving disputes remains to be seen. 

Perhaps Australia should draw on other nation’s experiences in the application of the Model Law?

Engineering, Procurement and Construction (EPC) and Engineering, Procurement and Construction Management (EPCM) contracts are two project delivery methods commonly used in the mining, mineral processing and power industries. Despite the widespread use of these contract models, there remains a general level of mystification associated with EPCM contracts, and the distinction between EPC and EPCM contracts is not particularly well documented or understood.

In acronym alone, the two contract models appear to be similar. So what’s in an ‘M’?

EPC contracting

Under an EPC contract, the EPC contractor develops the project from its inception to final completion. The principal provides the EPC contractor with technical and functional specifications for the project, and the EPC contractor subsequently designs, builds and delivers the project in an operational state so that it can be operated at the ‘turn of a key’ (resulting in the common reference to EPC contracts as ‘turnkey’ contracts).

EPC contracts are almost always ‘lump-sum’, where the EPC contractor is limited to receiving a fixed price irrespective of the actual cost of performing the work. The EPC contractor generally takes the benefit of any savings (and the risk of any cost over-runs). In addition, in an EPC contract, the EPC contractor usually provides a performance guarantee (subject to agreed liability caps).

An EPC contract provides a suitable framework for projects where significant engineering expertise is required, and the principal does not need to retain design control or flexibility in execution. EPC contracts are commonly used for large scale resource developments, such as oil and gas plant projects.

EPCM contracting – How is it different?

In contrast to an EPC contract, an EPCM contract is a sophisticated project management or agency arrangement where the EPCM contractor:

-  is responsible for the detailed engineering and design for the project; 

-  administers and manages the project as the principal’s agent or representative, including by providing programming and strategic management services; and 

-  is typically responsible for breaking down the procurement and construction work into packages, managing their tender, overseeing the principal’s entry into the trade/supply  contracts and managing those trade/supply contracts on the principal’s behalf to achieve completion of the project.

Unlike EPC contracts, EPCM contracts are almost always ‘cost plus’ (or ‘cost-reimbursable’). The principal pays the subcontractors directly for materials, equipment and on-site works, and only pays the EPCM contractor its actual direct costs (mostly labour) for performing engineering and supervisory services, plus an agreed margin. The margin charged by EPCM contractors varies depending on the risk assumed (which is usually low), the size of the project (small projects usually have higher margins) and supply/demand position in the economy.

An EPCM contract provides a suitable framework where the nature of the project requires continual design development either due to the complex nature of the project (or its interface with other assets or projects) or because the outputs of the project have not yet been finally determined. So long as the principal has the expertise, experience and resources to manage the progress of the project and can afford to retain the cost and time risk of the project, the principal can avoid payment of a hefty premium to put the risk on a head contractor under an EPC contract.

An EPCM contract may be appropriate where the inherent advantages of other procurement models (largely time and cost certainty) are not able in a practical sense to be delivered, perhaps due to lack of market appetite or capability to accept the risk transfer of traditional models. This is particularly relevant where the principal is unable or unlikely to obtain a suitable contractor and price using an EPC contract model.

EPCM contracts are commonly used for the construction or expansion of large scale heavy engineering facilities or manufacturing plants in the petrochemical oil and gas, mining and power sectors, where engineering and project management skills are more likely to be separate to construction and supply capability. EPCM contracts are not generally used for civil projects, except where the project can be delivered by relatively small, self-contained packages awarded to multiple contractors.

So what’s in an ‘M’?

There are, of course, many other differences between EPC and EPCM contracts. The fundamental difference, however, lies in the ‘M’. The ‘Construction Management‘ component of the project delivery method means that the EPCM contractor does not perform construction work and does not usually take full responsibility for delivering the completed project. The principal is able to take a more ‘hands on’ approach, with greater flexibility to modify project specifications and effect changes to the scope of the works throughout the project. However, as with any project delivery method, if you elect to use an EPCM contract model for your project, it should be moulded to fit the needs of the project and the principal to give your project the best chance for success.

There are some significant differences between Incoterms 2000 and the new Incoterms 2010. Some of the changes will need to be incorporated into new sale of goods contracts entered into before 1 January 2011; other changes simply need to be understood and considered when preparing contracts effective on or after 1 January 2011.

 What needs to be done before 1 January 2010?

Timing is all important. After 1 January 2011, any reference to Incoterms in a contract signed on or after that date will be understood to be a reference to Incoterms 2010, unless the parties expressly agree otherwise.

Both international and domestic users, therefore, should consider what amendments need to be made between now and 1 January to bring new contracts in line with Incoterms 2010. This will involve a thorough audit of standard suites of contracts that refer to Incoterms to ensure that those standard contracts are consistent with Incoterms 2010.

 What will change?

1. Incoterms DAF, DES, DDU and DEQ replaced 

Because of increased point-to-point sales and containerisation, Incoterms 2010 replaces four existing Incoterms with two new Incoterms:

2. Institute cargo clauses updated and insurance obligations clarified 

In 2009, insurance markets adopted the revised Institute Cargo Clauses (LMA/IUA) (2009). Incoterms Cost Insurance and Freight (CIF) and Carriage and Insurance Paid (CIP) have been amended to reflect this. The amendments also clarify information obligations regarding insurance.

3. New security obligations

The seller and the buyer will be compelled to co-operate as they have not done previously. This is because Incoterms 2010 will allocate the obligations to supply the necessary information in order to obtain export and import clearance (eg, chain of custody information).

4. Obligations around terminal handling charges clarified 

Incoterms 2010 seeks to reduce the potential for buyers to be charged twice for terminal handling charges. Pass through of the cost of carriage of goods to an agreed destination, which often resulted in buyers being charged twice, should disappear as a result of amendments to CIP, CPT, CFR, CIF, DAT, DAP and CCP Incoterms.

5. Requirements and obligations associated with string sales recognised 

Incoterms 2010 recognises and clarifies the practice of string sales (ie, multiple sales of goods during transit).

Specifically, FCA, CPT, CIP, FAS, FOB, CFR and CIF Incoterms have been amended to provide that the seller in the middle of a string sale has an obligation to “procure goods shipped” and not to “ship” the goods.

The seller’s obligation to contract for the carriage of goods has been amended to allow the seller to procure a contract of carriage.

Key amendments in Incoterms 2010

Three key areas of amendments do not require any specific action but should be understood and considered when preparing contracts to be given effect on or after 1 January 2011. These are:

1. Using Incoterms for domestic sale of goods contracts 

Incoterms 2010 have been adapted for use in domestic contracts. This will make it easier to incorporate Incoterms in contracts relating to the movement of goods domestically – for example, within a trading bloc such as the EU where the export and import formalities have largely disappeared, and in the US where there has been an increasing preference to use Incoterms rather than the Uniform Commercial Code in domestic sales.

2. Revised term categories

Incoterms 2010 separates its eleven terms into two broad categories:

Previously, confusion occurred when some people misused FOB to indicate any point of delivery. This new categorisation clearly states that the FOB rule is meant to be used solely for sea and inland waterway transport.

3. Maintenance of electronic records 

This amendment imposes the same obligation to keep contractual documentation and records regardless of their form. Interestingly, ‘electronic communication’ is used broadly to encapsulate future technological developments.

What you need to remember

Trading companies that refer to Incoterms in their contracts need to be aware of the effect of the differences between Incoterms 2000 and Incoterms 2010.

Confusion (and potential disputes) may arise where trading companies have not conducted a thorough audit of their existing contracts (or proposed new contracts) that will apply after 1 January 2011 to ensure they understand the effect of the amendments and consequently the terms they have (or will in the future) agreed.

If trading companies have not familiarised themselves with the changes between Incoterms 2000 and Incoterms 2010 before 1 January 2011, users may still choose to be bound by the previous version – provided the parties’ agreement to use those terms is clear.

It is natural, therefore, that parties in contract negotiations would rely on technology to find changes in the document being negotiated, particularly where proposing amendments and developing clauses.

In the past, we would rely on the other side to direct us to amended clauses in a contract or to relay the substance of the proposed or incorporated amendment. In some instances, we would have to read the document from top to bottom to identify each and every change.

Today, thanks to technology, we rely on ‘track changes’ or compare software which raises the question: “What is accepted practice now that we conveniently use track changes?”

Earlier this year, the Queensland Supreme Court considered two important question in the case Thiess Pty Ltd v FLSMIDTH Minerals Pty Limited [2010] QSC 6: (i) what is a lawyer’s duty when making changes to draft deeds; and (ii) when should the Court intervene to rectify a document.

The facts of the case

Queensland Aluminium Limited (QAL) had engaged Thiess Pty Ltd (Thiess) to design and construct three high temperature processing plants, known as calciners, at QAL’s operation in Gladstone. Thiess subcontracted a large part of the design work to FLSMIDTH.

In mid-2003, the calciners, built to FLSMIDTH’s design, were found to have structural problems and by the end of 2004 Thiess had commenced proceedings against FLSMIDTH to recover its overruns and lost bonuses under the head contract with QAL.

In early 2005, QAL, Thiess and FLSMIDTH began negotiations toward a settlement. After months of negotiations, the parties entered into a settlement deed (Main Deed). As part of these negotiations, Thiess and FLSMIDTH agreed to enter into a separate Side Deed that, amongst other things, dealt with the ongoing liability of Thiess and FLSMIDTH and, in particular, reserved Thiess’ rights and FLSMIDTH’s liability in relation to the proceedings on foot.

Initially, the Main Deed between QAL, Thiess and FLSMIDTH included a limitation clause that sought to limit FLSMIDTH’s liability to the limit of the indemnity under the Project Specific PI Policy in accordance with the Consultancy Agreement. The parties believed that this included the primary policy of insurance provided by QBE and the excess policy provided by Liberty.

FLSMIDTH’s solicitors moved the limitation clause from the Main Deed to the Side Deed and at the same time amended it in a material way.

When the amendment appeared in the next version of the Side Deed, the whole of the clause was marked up on the basis that it was a new clause in the Side Deed. The covering email sent by FLSMIDTH’s solicitors identified some of the changes to the document but not the material changes to the limitation clause.

Negotiations between FLSMIDTH and Thiess continued for another five weeks before the documents were finally executed.

After the execution of the deeds, Thiess claimed that the changes to the version of the limitation clause in the Main Deed were intentionally not identified and did not reflect their understanding of the commercial deal.

Thiess consequently commenced proceedings against FLSMIDTH seeking rectification of the Side Deed on the basis of common or alternatively unilateral mistake. Thiess also made submissions that FLSMIDTH’s solicitor’s failure to identify the changes to the Side Deed was intentionally deceptive and misleading.

What the court decided

The judge (His Honour McMurdo J) conducted a detailed examination of:

• all the dealings between the parties and, in particular, of their lawyers, the drafts and correspondence accompanying the amendments; and

• the evidence called by both sides regarding proper practice of solicitors in the process of drafting and redrafting of such documents.

According to the expert called by Thiess, a careful and competent solicitor of good repute would direct their opponent’s attention specifically to such a change within their previous draft of the clause.

On the view of the expert called by FLSMIDTH, that was not required, because a competent solicitor in receipt of such an email would not rely simply on the covering email. They would read its attachment, in this case the draft Side Deed, and it would be sufficient for them to mark the whole of the proposed clause 8, as FLSMIDTH’s solicitors did.

The judge held that the new limitation clause contained a markedly different commercial element to the overall settlement. In those circumstances, Thiess’ solicitor “could have expected” that the amending solicitor would have drawn attention to such a material change.

In addition, the judge found that the drafting of the new clause would have a result that was quite different from that which the parties and their solicitors had been discussing. While the judge excused the amendment to some extent, noting that it appeared that FLSMIDTH’s solicitors were not aware of the effect of the change made, the court acknowledged that it was the continued common intention of the parties that the deeds would not affect the proceedings that were on foot. The court ordered that the Side Deed reflect the initial intent of the parties.

Things to consider

It would seem that the judge in this case excused the masked amendment as misunderstanding of the legal effect. However, had the judge held the parties strictly to the words they had agreed to, the amount Thiess may have been able to recover under the first proceedings would have been significantly reduced.

So, even though ‘track changes’ is convenient, you should always check what you receive from the other side because it will not be an easy process to have an error rectified.

Moreover, lawyers should draw attention to any material change they make. Otherwise, they may fall foul of ethical standards if, unlike in the Thiess case, a judge forms the view they were well aware of the impact of a change and communicated the change in a way that it might go unnoticed by the other side.

The answer may be as simple as alternative dispute resolution. Sensible commercial parties have always engaged in ADR and more and more jurisdictions around the world are promoting a culture where you can’t expect your day in court until you have tried to sort out your dispute yourself.

But can ADR really be forced on to potential litigants?

Although ADR has been promoted in different ways in different countries, the aim has always been the same – to reduce legal costs, increase efficiency, bring about a cultural change and free up limited court resources.

Each jurisdiction’s policies and procedures have had a common theme – to try to force parties to resolve their own disputes, including by:

• filing statements that outline what steps the parties have taken to resolve the dispute;
• limiting the circumstances in which a party can reject an invitation to mediate;
• requiring parties to disclose critical documents early; and
• ordering parties to participate in non-binding ADR.

Places like Hong Kong, the United Kingdom and, indeed, various Australian state courts have followed a ‘practice directions’ approach. Australia’s Federal Government, on the other hand, has decided to adopt a legislative option.

In response to key recommendations made by the National Alternative Dispute Resolution Advisory Council in its 2009 report The Resolve to Resolve , Australia’s Federal Government introduced the Civil Dispute Resolution Bill into the Parliament on 16 June 2010.

The Bill proposes that any applicant commencing proceedings in the Federal Court or Federal Magistrates Court in relation to a civil dispute (with some exceptions) and any respondents to those proceedings must file a ‘Genuine Steps Statement’.

The applicant’s Statement must include the steps taken to try to resolve the dispute, or why no steps have been taken. The respondent’s Statement must either agree with what applicant has stated, or disagree and provide reasons.

While the Bill does not explicitly define what constitutes a ‘genuine step’, it does set out a number of examples, including notifying the other party of the dispute, offering to discuss the dispute, providing information and documents, considering ADR and attending ADR.

Lawyers who do not advise their client of the requirement to file a Statement may have a costs order awarded against them.

Mandated ADR has been around for a long time, but it still hasn’t been universally adopted. There is always the argument that there will be no genuine change, no cultural shift, and that the parties will simply ‘go through the motions’ because the law says that they must. There is also the risk that costs will be ‘front-loaded’ rather than result in a genuine cost savings.

Australia’s Civil Dispute Resolution Bill has not been enacted yet, and given the current ‘hung’ Parliament we are facing, it may be some time before we know if legislation can be used effectively to address perceived inefficiencies in the civil justice system.

But then again, perhaps we will know sooner than we think, because the Australian state of Victoria is set to go down the legislated path. Its Civil Procedure Bill 2010 (Vic) is more prescriptive than Federal Government’s proposed Civil Dispute Resolution Bill and its pre-litigation requirements include, as a bare minimum, exchanging critical documents early and considering options for ADR.

The Victorian Bill also introduces a new ‘overarching purpose’ for Victorian Courts – to ‘facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’. Furthermore, new standards of conduct, called ‘overarching obligations’, aim to further the administration of justice in relation to civil proceedings.

In the end, so-called ‘pre-action protocols’ are just another step along the continuum of forcing parties to resolve disputes themselves. The real question is: can legislation and practice directions change the cultural behaviour of litigation, or are we barking up the wrong tree?

So while the past ten years have provided an interesting economic backdrop for players in the construction industry – with the world economy moving from boom to near bust to (hopefully) better times ahead – for most of those years Australia’s construction industry simply surged ahead, even during the global economic downturn of 2008/2009.

Nonetheless, changes in the economy did lead to changes in how projects are delivered in Australia. Which begs the question – how has project delivery evolved in Australia over the past decade and how will the abundance of upcoming construction work across the country be delivered going forward?

The short answer to the first part of that question is that owners and contractors have worked together to develop contracting models that are more sustainable for both parties, by considering movements in the economic climate and the best management of risk allocation.

Ten years ago, the contracting models used for projects were the ‘traditional’ form of contracts – an allocation of risk for an agreed fixed lump sum. Popular contract models included EPC, design and construct, and construct only contracts, with contractors being appointed following a competitive tender process.

This process was costly for all involved. In difficult times, contractors would accept a high level risk with only small contingencies, which led to a claims-focussed culture. In less difficult times, contractors would either accept a high level of risk (with a price tag to match) or a low level of risk and again revert to focusing on claims if any of the owner’s risks came to pass.

By 2003/2004 contractors had become more selective about the projects they bid for, and they began to avoid high risk delivery models. Owners were therefore forced to critically assess traditional procurement processes and to become innovative in order to attract the best contractors and engineering resources.

The most dramatic change to project delivery models came with the development in Australia of “alliancing”.

Alliances involve an owner and one or more service providers (designer, builder, supplier) coming together to work as an integrated team to deliver a specific project under a contractual framework where the commercial interests align with the actual project outcome.

One of the significant drivers for the parties to ensure the project is successful is that most risks and rewards are shared jointly. Put simply, in the first phase of an alliance, the parties work together to finalise a scope of work and prepare a target cost estimate (TCE) of the cost to complete the project. That TCE is locked in, and phase 2 (the actual construction) commences.

During phase 2 the parties endeavour to complete the project for less than the TCE. If they do so, they share in the savings. If they exceed the TCE, then they share in the cost overruns (although, typically, the service providers’ share of risk is capped at their profit, so they always receive their actual costs).

The use of alliances peaked in Australia in about 2006. They are particularly suited for project delivery where the risks are not known at the time the service providers are introduced to the project. In a heated market, however, they were used across a very wide range of projects.

One criticism of alliances, not necessarily well founded, is that TCEs have become ‘too high’ – that is, the parties have ensured that the TCE will never be exceeded. There was also concern that service providers are paid all of their direct costs, regardless of how well (or poorly) the project performs.

With the onset of the GFC in late 2008 the focus of owners shifted. What they looked for was cost certainty that did not involve significant contingencies but equally recognised that, in order to attract the best contractors and engineers, contractors needed to have sufficient involvement with the project to identify risks and price the works accurately.

This balancing act resulted in what is now described as the Early Contractor Involvement model (ECI).

ECI extended the first stage of alliancing from identifying risks and establishing a TCE for the project works to identifying the risks, allocating responsibility for those risks and determining an overall hard dollar figure for the project works based on that risk allocation.

ECI is seen as an appropriate middle ground. The ‘best of both worlds’, it uses a soft dollar approach to the first stage (avoiding some of the difficulties associated with a traditional D&C) and then a hard dollar approach with a traditional lump sum contract at the point where all risks can be accurately identified and priced, creating greater cost certainty through the fixing of the price (potentially with incentives).

In the last year of the decade, and as the market steadies from the effects of the GFC, we see increased use of the ECI model for all kinds of projects – small, medium and large. Like alliancing, it works well where a project needs to be fast tracked, or where the design is complex or where there is significant risk that cannot be quantified at the time of tender.

Although alliancing will remain important in project delivery in Australia, ECI is the way of the future.

With the return of more difficult times, ADR has again come under the spotlight. It seems widely accepted that arbitration in the domestic arena in Australia has become largely undistinguishable, in terms of time and money spent resolving disputes, from litigation.

Meanwhile, international arbitration has also been under scrutiny across the globe. In 2006, UNCITRAL revisited its Model Law for arbitration and agreed revisions to the Model Law. These revisions have been accepted by the Australian federal government (as discussed below).

Although difficulties with domestic arbitration in Australia are arguably due to the way in which parties, lawyers and courts have interpreted that legislation, Australia has taken the opportunity to overhaul its domestic arbitration regime, and make it consistent with the approach taken in international arbitration.

The International approach

On the international stage, Australia is intent on becoming a hub for international arbitration. To this end, a dedicated Australian Disputes Centre opened in Sydney this year, and the Australian Government last month updated the International Arbitration Act (Cth) 1974 (IAA), to adopt the 2006 revisions to the Model Law. Australia is the fifth country to do so – following in the footsteps of Peru, Mauritius, New Zealand and Slovenia.

In the context of announcing the amendments to the IAA the Attorney-General, the Hon. Robert McClelland MP, highlighted the aim of the amendments is to

‘emphasise the importance of speed, fairness and cost-effectiveness in international arbitration, while clearly defining and limiting the role of the courts in international arbitration without compromising the important protective function they exercise’.

To achieve these aims, the amendments to the IAA focus on clarifying matters of application and judicial interpretation and incorporating the greatest possible choices for parties to resolve their dispute. In summary, the amendments to the IAA:

1. provide increased protection for foreign awards by providing that a court may only refuse to recognise and enforce an arbitral award if one or more of the specific grounds listed in the IAA is satisfied;

2. provide clarification to the courts by inserting a new objects clause (which emphasises the important role arbitration plays in facilitating international trade and commerce) and a new interpretation clause (which requires a court to consider the objects of the Act, including that awards are intended to provide certainty and finality);

3. remove the parties’ previous ability to opt out from using the Model Law;

4. include a regime for interim binding orders to protect the rights of a party and maintain the status quo, preserve assets or preserve evidence (although Australia has not adopted the Model Law to the extent it allows for applications for interim order to be brought ex parte);

5. provide the parties with more flexibility by showcasing a range of optional provisions to govern their dispute (such as seeking assistance from a court in the form of a subpoena);

6. include a framework/regime for protecting confidential information; and

7. give the arbitral tribunal greater scope to limit the costs of an arbitration.

The Domestic approach

Each Australian state and territory has legislation allowing for commercial arbitration. In tandem with updating the IAA, the Standing Committee of Attorneys General have developed a ‘Model Commercial Arbitration Bill’, to bring Australia’s domestic arbitration regime in line with international expectations and law, and to achieve greater consistency between the commonwealth and state laws.

The Model Commercial Arbitration Bill largely adopts the Model Law. This acknowledges the greater success of international arbitration legislation.

If the Model Commercial Arbitration Bill is adopted throughout Australia, the business community and practitioners alike will no longer be required to have knowledge of two arbitral systems (one for domestic disputes and another for international disputes). This will assist in increasing both Australian and overseas businesses’ familiarity and confidence of Australian arbitral processes within Australia.

New South Wales has been the first to adopt the Model Commercial Arbitration Bill, by replacing its Commercial Arbitration Act (NSW) 1984 with the Commercial Arbitration Act 2010, which was passed in late June 2010. The NSW Act largely accepts the Model Bill but there are some notable differences, for example the NSW Act does not include a power to stay court proceedings. These differences make the NSW Act more consistent with international arbitration law and advance the object of arbitration.

The future

It remains to be seen whether the other states and territories will adopt the Model Commercial Arbitration Bill (and hence the Model Law), and whether or not they will make any amendments to it in doing so. Assuming the laws are adopted throughout Australia, it will be a matter of time to see whether the parties to disputes have confidence that arbitration has again been put in the position of being a viable alternative to litigation.