COMMERCIAL ARBITRATION ACT 1985 - SECT 40
This legislation has been repealed.
COMMERCIAL ARBITRATION ACT 1985 - SECT 40
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.
[Section 40 amended by No. 43 of 1997 s. 22.]