Western Australian Consolidated Acts

COMMERCIAL ARBITRATION ACT 1985 - SECT 38

38 .         Judicial review of awards

        (1)         Without prejudice to the right of appeal conferred by subsection (2), the Court shall not have jurisdiction to set aside or remit an award on the ground of error of fact or law, on the face of the award.

        (2)         Subject to subsection (4), an appeal shall lie to the Supreme Court on any question of law arising out of an award.

        (3)         On the determination of an appeal under subsection (2), the Supreme Court may by order — 

            (a)         confirm, vary or set aside the award; or

            (b)         remit the award, together with the Supreme Court’s opinion on the question of law which was the subject of the appeal, to the arbitrator or umpire for reconsideration or, where a new arbitrator or umpire has been appointed, to that arbitrator or umpire for consideration,

                and where the award is remitted under paragraph (b) the arbitrator or umpire shall, unless the order otherwise directs, make the award within 3 months after the date of the order.

        (4)         An appeal under subsection (2) may be brought by any of the parties to an arbitration agreement — 

            (a)         with the consent of all the other parties to the arbitration agreement; or

            (b)         subject to section 40, with the leave of the Supreme Court.

        (5)         The Supreme Court shall not grant leave under subsection (4)(b) unless it considers that —

            (a)         having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more parties to the arbitration agreement; and

            (b)         there is —

                  (i)         a manifest error of law on the face of the award; or

                  (ii)         strong evidence that the arbitrator or umpire made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law.

        (6)         The Supreme Court may make any leave which it grants under subsection (4)(b) subject to the applicant complying with any conditions it considers appropriate.

        (7)         Where the award of an arbitrator or umpire is varied on an appeal under subsection (2), the award as varied shall have effect (except for the purposes of this section) as if it were the award of the arbitrator or umpire.

        [Section 38 amended by No. 43 of 1997 s. 17 and 22.]