Victorian Consolidated Legislation

Commercial Arbitration Act 1984 - SECT 40

Exclusion agreements affecting rights under sections 38 and 39

40. Exclusion agreements affecting rights under sections 38 and 39



(1) Subject to this section and section 41-

   (a)  the Supreme Court shall not, under section 38(4)(b), grant leave to
        appeal with respect to a question of law arising out of an award; and

   (b)  no application may be made under section 39(1)(a) with respect to a
        question of law-

if there is in force an agreement in writing (in this section and section 41
referred to as an exclusion agreement) between the parties to the arbitration
agreement which excludes the right of appeal under section 38(2) in relation
to the award or, in a case falling within paragraph (b), in relation to an
award to which the determination of the question of law is material.

(2) An exclusion agreement may be expressed so as to relate to a particular
award, to awards under a particular arbitration agreement or to any other
description of awards, whether arising out of the same arbitration agreement
or not.

(3) An agreement may be an exclusion agreement for the purposes of this
section whether it is entered into before or after the commencement of this
Act and whether or not it forms part of an arbitration agreement.

(4) Except as provided by subsection (1), sections 38 and 39 shall have effect
notwithstanding anything in any agreement purporting-

   (a)  to prohibit or restrict access to the Supreme Court; or

   (b)  to restrict the jurisdiction of the Supreme Court.

(5) An exclusion agreement shall be of no effect in relation to an award made
on, or a question of law arising in the course of, an arbitration being an
arbitration under any other Act.

(6) An exclusion agreement shall be of no effect in relation to an award made
on, or a question of law arising in the course of, an arbitration under an
arbitration agreement which is a domestic arbitration agreement unless the
exclusion agreement is entered into after the commencement of the arbitration
in which the award is made or, as the case requires, in which the question of
law arises.

(7) In this section domestic arbitration agreement means an arbitration
agreement which does not provide, expressly or by implication, for arbitration
in a country other than Australia and to which neither-

   (a)  an individual who is a national of, or habitually resident in, any
        country other than Australia; nor

   (b)  a body corporate which is incorporated in, or whose central management
        and control is exercised in, any country other than Australia-

is a party at the time the arbitration agreement is entered into.