Arbitration-By-Attrition: Is Arbitration In Australia Losing Its Appeal?

Introduction

Arbitration is designed to be both fast and final. However the decision of the Victorian Supreme Court in Oil Basins Ltd v BHP Billiton Ltd demonstrates that this may not always be the case.

The Victorian Supreme Court upheld BHP's bid to have an arbitral award against it set aside, with the result that the product of three years of arbitration was overturned following a further two years of litigation in the courts.

BHP was a powerful adversary in this dispute and had the means to conduct what is essentially Arbitration-by-Attrition. The key question here is; what can be done to prevent a party from conducting Arbitration-by-Attrition and to ensure that arbitration proceedings are both fast and final?