Choosing the most appropriate way to solve your particular dispute can be tricky, and you should obtain independent legal advice to assist you in making that decision.

This page outlines answers to frequently asked questions about VCAS, arbitration and other alternative dispute resolution, and in-court options, for settling disputes.

  • What is arbitration?

    Arbitration is an effective way of resolving commercial disputes privately, without the need to go to court. Arbitration is usually quicker, easier and less costly than going to court. More people are turning to arbitration to resolve their disputes because court cases can be quite expensive and lengthy.

    Arbitration involves each party to a dispute giving their side of the story to a neutral third person called an arbitrator. The arbitrator then makes a decision called an Award, which is final and binding on all parties to the dispute and can be enforced in court under the Commercial Arbitration Act 2011 (Vic).

    Whether your dispute is in court or VCAT or not, you can choose to have your case heard by an arbitrator.

  • How does VCAS fit within my dispute resolution options?

  • Why use VCAS?

    The Victorian Commercial Arbitration Scheme (VCAS) provides Rules for arbitrating to resolve disputes quickly and affordably without going to court. Arbitrators working within VCAS have agreed to capped fees and fixed timelines, and all are accredited with the Chartered Institute of Arbitrators or the Resolution Institute or they are experienced arbitrators who have demonstrated excellence in the field of domestic and/or international arbitration.

    VCAS arbitrators are affordable and will resolve your dispute quickly and efficiently because they have agreed to conduct arbitrations under the Rules of the VCAS Scheme. These Rules are designed to make sure parties to a dispute have their matter heard quickly, are certain about the arbitration fees involved, and will have a fair hearing.

    VCAS is endorsed by the Victorian Bar.

  • Can my dispute be arbitrated under VCAS?

    Most (but not all) commercial disputes, big or small, can be resolved by arbitration. Arbitration is a consensual process so both the parties must agree that the dispute (or a dispute in the future) will be resolved by arbitration.

    There are two ways disputes can be referred to arbitration.

    1. Parties can agree when they enter into a contract or agreement, that any disputes that may arise in the future will be heard and determined by arbitration. This is the traditional way disputes are referred to arbitration, and parties can agree in advance to use the VCAS Rules to settle any future dispute (see the domestic building dispute exception, below).
    2. By agreement after a dispute arises. This offers the most immediate way for parties in dispute to utilise the VCAS process.

    Examples of disputes that can be heard by VCAS include those relating to contracts, building and construction, partnerships, supply agreements, commercial leases, franchises, mortgages and securities, farm debts, trusts, corporations matters, renovation works, media, sports law, entertainment and travel etc.

    Arbitration cannot be used to resolve matters where the contract in dispute specifically excludes arbitration as an option for resolving a dispute, and disputes where there are specific statutory prohibitions. This includes disputes relating to retail tenancies, citizenship, marriage and divorce, some aspects of intellectual property rights (for example, whether a patent or trade mark ought to be granted), competition, taxation, most workplace disputes, bankruptcy and corporate insolvency, illegality and fraud, and possibly trade practices and consumer protection.

    I have a domestic building dispute

    Parties to domestic building contracts cannot agree in advance (before a dispute arises) to refer any dispute that may arise to arbitration (as the Victorian Civil and Administrative Tribunal has exclusive jurisdiction in this regard).

    However, domestic building disputes that are already on foot may be referred to arbitration by agreement. This means that parties to a domestic building dispute that is underway in VCAT may decide, by agreement, to have that dispute resolved by arbitration instead. This is explained in paragraph 1.5 of the User Guide.

  • How do I have a matter heard by a VCAS arbitrator?

    As explained above, there are two ways for a dispute to go to arbitration:

    1. Parties can include a clause in their contract, where they agree that any dispute that arises in connection with the contract (in the future) can go to arbitration under the VCAS Rules. A sample clause for this purpose is located in paragraph 3.1 of the VCAS User Guide here and reads:
      • Any dispute arising out of or in connection with this Contract, including any questions regarding its existence, validity or termination, shall be determined by arbitration in Victoria in accordance with the Victorian Commercial Arbitration Scheme Rules applicable at the commencement of the arbitration.
    2. Parties to an existing dispute, whether before the Courts or VCAT or not yet in the court and tribunal system, can agree to have their dispute determined by arbitration under the VCAS Rules. All the parties need to do is agree in writing to refer the dispute to arbitration. A sample agreement is in Paragraph 5 of the VCAS User Guide here and can be downloaded here. This Notice of Agreement needs to be included in the Notice that the claimant uses to refer the case to VCAS.
  • How can I select a VCAS arbitrator?

    Parties to a dispute who agree to have their dispute determined by VCAS will agree to appoint an arbitrator.

    Parties may choose an arbitrator from the list provided by VCAS or, if they cannot agree, request the VCAS governance panel to appoint an arbitrator from the VCAS list for them. The list of VCAS arbitrators is here. Parties can also choose someone else to arbitrate (not on the VCAS list), but the parties will need to obtain that person’s agreement to operate under the VCAS Rules.

    All VCAS arbitrators are experienced lawyers (barristers and solicitors) who have met minimum criteria of arbitration accreditation set by VCAS. This means they have demonstrated a suitable level of knowledge, skill and experience. VCAS arbitrators are fellows of the Chartered Institute of Arbitrators (FCIArb), accredited arbitrators with the Resolution Institute or they are experienced arbitrators who have demonstrated excellence in the field of domestic and/or international arbitration.

  • How much does arbitration cost?

    Arbitrators’ fees are fixed and capped, so there are no hidden extras.

    The current VCAS Scale of Fees is here:

    Sums in dispute (claim + counterclaim) > $50,000, < $100,000 > $100,000, < $200,000 > $200,000, < $300,000 > $300,000, < $500,000 > $500,000
    Rate payable to arbitrator for work in arbitration $2,000 per day or $200 per hour (max. 8 hours per day) $2,400 per day or $240 per hour (max. 8 hours per day) $2,800 per day or $280 per hour (max. 8 hours per day) $3,400 per day or $340 per hour (max. 8 hours per day) $4,000 per day or $400 per hour (max. 8 hours per day)

    Further information on VCAS arbitrators’ fees is in paragraph 8 of the VCAS User Guide here.

    The parties to a dispute pay the capped fee to the arbitrator who will determine as part of the Award who pays that fee at the end of the arbitration. There is a cap on the recovery of legal and other costs that parties incur during the arbitration. This gives the parties to an arbitration certainty about recoverable legal costs and the arbitrator’s fees.

    Claimants pay VCAS a $300 fee to arbitrate under the scheme.

  • How long will arbitration take?

    Parties can expect to have the arbitration heard and an Award published in 120 days from the commencement of arbitration, subject to adjustments by the arbitrator.

    Some cases are simpler and may take less time. If the matter is particularly complex, it may need more time, and this will be agreed with the parties.

    If the sum in dispute is less than $50,000, the parties can choose to not have a hearing. Instead, the arbitrator will make a decision based only on the documents submitted by the parties to the dispute. In these cases, the parties can expect an Award within 90 days from the start of the arbitration.

  • Where is the arbitration held?

    The arbitration can be held in person at any appropriate venue as arranged by the parties. The VCAS scheme is designed to bring alternative dispute resolution to Victoria’s regions through the use of online technology or otherwise.

    The arbitration can be held online through Microsoft Teams, Cisco WebEx, Zoom or an other online platform. Particularly during the COVID-19 situation where in-person gatherings and movement between venues is more difficult, VCAS provides parties with arbitrators familiar with conducting cases online.

    If the sum in dispute is less than $50,000, VCAS provides a fast and efficient “documents-only” arbitration process where the dispute is arbitrated entirely from documents provided.

  • What happens if I don’t agree with an arbitrator’s Award (decision)?

    One of the key strengths of arbitration is that it is final and binding.

    There is no appeal from an arbitrator’s decision (unless the parties agree, before the hearing of the arbitration, that the arbitrator’s decision may be appealed and the Court agrees: see section 34A of the Commercial Arbitration Act 2011 (Vic)).

    The flip-side is, of course, that a person disappointed with the arbitrator’s Award has very little scope to avoid the arbitrator’s decision.

  • What happens if the other party doesn’t abide by the Award?

    Usually, the losing party to an arbitral Award will abide by the Award (because it is very difficult to challenge an award in Court). If a party refuses to pay after an Award has been made then the successful party can take the Award to Court (usually the County Court). Enforcement is dealt with in the legislation, specifically the Commercial Arbitration Act 2011 (Vic) and the Rules of Court.