units

LAW7443

Faculty of Law

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Monash University Handbook 2011 Postgraduate - Unit

6 points, SCA Band 3, 0.125 EFTSL

Refer to the specific census and withdrawal dates for the semester(s) in which this unit is offered.

LevelPostgraduate
FacultyFaculty of Law
OfferedNot offered in 2011

Synopsis

Arbitration is now a key formal means of resolving disputes in relation to domestic commercial agreements. It raises many significant issues and challenges. The first question is how private parties are able to agree to resolve disputes in this way and how such agreements are to be respected by court institutions. The unit aims at being an advanced postgraduate unit highlighting the most significant current issues in domestic arbitration scholarship and practice. It begins with a conceptual analysis of the nature of domestic arbitration, its sources of law and the ways in which it is integrated with the court system. Using students experience, case studies and literature, attention is then given to its advantages and disadvantages as compared to other methodologies, particularly domestic litigation.
Attention is then given to the way arbitrations are best conducted within the domestic legislative model. This involves an analysis of the key statutory provisions of the Commercial Arbitration Act, case law and the discretions available to parties and arbitrators. Consideration is given to appointment of the Tribunal, challenges to arbitrators, issues of evidence and procedural discretions. Attention is then given to the elements of the Award, court supervision and enforcement.
The bulk of the work involves looking at some of the key issues in particular types of commercial disputes. Attention is given to the core fields of contractual and construction disputes.

Objectives

The objectives of the unit are to:

  1. introduce students to the most significant current issues in relation to arbitration of domestic commercial disputes
  2. develop students' understanding of the advantages and disadvantages of arbitration compared to other dispute resolution methodologies, particularly domestic commercial litigation
  3. invite students to evaluate the procedural model under the Commercial Arbitration Act
  4. have students develop an understanding of the relationship between party autonomy and court supervision in relation to arbitration
  5. enable students to identify and evaluate the emerging challenges thrown up by certain types of commercial disputes, particularly contractual and construction disputes.

Assessment

Research assignment (3,750 words): 50%
Take-home examination (3,750 words): 50% or
Participation in a graded moot simulation (including preparation of a written memorial): 50%

In appropriate cases determined by the lecturer, assessment may be one research assignment (7,500 words) for 100% of the marks.

Contact hours

24 contact hours per semester (either intensive, semi-intensive or semester long, depending on the Faculty resources, timetabling and requirements).