There must be an agreement in writing for the Commercial Arbitration Act 2010 (NSW) (Act) to apply (s 7).
The parties and the arbitrator must liaise with a view to agreeing the terms of the arbitration agreement including the scope of the issues upon which the arbitrator is required to adjudicate.
Part 5 of the Act deals with the conduct of arbitrations and should be considered closely. In particular, s 19 provides that, subject to the provisions of the Act, the parties are free to agree on the procedure to be followed by arbitrators in conducting the proceedings. Failing such agreement, the arbitrators may, subject to the provisions of the Act, conduct the arbitration in such manner as they consider appropriate. It is important to remember that there are numerous provisions in the Act that will apply to the arbitration unless the parties agree to opt out of them, including a provision that the arbitration will be private and confidential.
Achieving agreement as to the form of the arbitration and procedure is one of the key objectives of the first meeting of the parties and the arbitrator (usually referred to as the preliminary conference or first directions conference).
At the preliminary conference, the arbitrator will make appropriate procedural directions. Guidance on what directions may be appropriate can be found in the notes published by arbitral bodies such as Resolution Institute (formerly IAMA) and ACDC (Australian Commercial Disputes Centre).
The arbitrator will also at this time make arrangements to secure his fees and foreshadow further directions conferences for case management with a view to resolving the dispute in a cost effective manner, informally and quickly (in accordance with the requirements of s 1C of the Act).
It should be remembered that once appointed an arbitrator has wide powers to make orders in the nature of interlocutory relief such as injunctions, freezing orders, orders for security for costs and orders preserving evidence. Those powers are adumbrated in s 17 of the Act.