David Levin KC (2013) 29.3 BCL 230

In an article written in mid-20091 this writer explored the somewhat vexed issue as to the applicability in commercial arbitrations in Australia of the various statutory provisions enacting proportionate liability in the various Australian States and Territories. Since the commercial arbitration legislation and the proportionate liability enactments each lack uniformity, the analysis was, of necessity, somewhat disjointed.

The article was, however, firm in its conclusion that it would eventually be determined that the relevant apportionment legislation was not applicable to arbitrations conducted under the Commercial Arbitration Acts. In a review of a number of higher court decisions that considered this issue, the author concludes that the planets are aligning against any interpretation of Australian proportionate liability legislation that seeks to impose proportionate liability on disputes subject to resolution at arbitration.

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