Dispute Resolution & Arbitration

Aperim Pty Ltd (ABN 46150699737; ACN 150699737) is incorporated in New South Wales, Australia and operates the aicial brand. In this guide, “aicial” refers to that brand; “we”, “us” and “our” refer to Aperim Pty Ltd; and “you” refers to the person or organisation we are in dispute with.

This guide explains, in everyday language, how a dispute with us is resolved, including the binding arbitration clause in our Terms of Service, clause 16. It is provided for convenience only and is not itself a binding legal agreement. The Terms of Service is the authoritative source, and if anything in this guide differs from it, the Terms of Service governs. You can read the clause itself at Terms of Service, clause 16.

Before turning to arbitration, we ask that you raise the issue with us directly. This is how we prefer to work, but — unlike the binding arbitration step below — it is not a contractual precondition you must complete before either party can commence arbitration under clause 16 of our Terms of Service.

• Talk to us first. Email legal@aicial.com describing the issue, and we will work with you to try to resolve it directly.
• Give formal notice, if it comes to that. Either party may give the other written notice that a dispute exists, at any time.
• Binding arbitration. If the dispute is not resolved, it is resolved by binding arbitration administered by the Australian Centre for International Commercial Arbitration (ACICA) in Sydney, as described below. The arbitrator’s decision is final and enforceable.

Arbitration is administered by ACICA, seated in Sydney, New South Wales, Australia, and conducted in English under the ACICA Arbitration Rules 2021, or, where a party successfully applies for it, the streamlined rules described in the next section.

The arbitrator’s award is final and binding on both parties. It is enforceable internationally under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). Australia and each of aicial’s other current and target markets — the United Kingdom, the United States, mainland China, India, and, as European Union member states, Spain and France — are all parties to that Convention, so an award can generally be enforced through the local courts in each of those places without re-arguing the underlying dispute.

Our arbitration clause allows either party to apply for smaller disputes to be dealt with under a faster procedure with a lower administration fee. Before the tribunal is appointed, either party may apply to ACICA for the arbitration to instead be conducted under the ACICA Expedited Arbitration Rules 2021 — a streamlined procedure with a leaner timetable and a lower administration-fee scale (see Costs, below). ACICA may grant that application where the amount in dispute is under AUD 5,000,000, where both parties agree, or where the case is exceptionally urgent, and will consider both parties’ views before deciding.

Unless the parties agree otherwise, your dispute is decided by a single arbitrator. A three-member tribunal is convened only if a party applies for one, and only for claims over AUD 10,000,000 or disputes of unusual complexity.

aicial’s customers can be anywhere in the world, so the ACICA Arbitration Rules 2021 expressly allow hearings to be conducted virtually, in person, or in a hybrid combination of the two, at the tribunal’s discretion. If your hearing is held virtually, you won’t need to travel to Sydney to take part. For legal purposes, a hearing held virtually is treated as held at the seat, Sydney, unless the parties agree otherwise or the tribunal directs otherwise.

If a situation cannot wait for a tribunal to be formed, ACICA’s emergency arbitrator provisions allow a party to apply for urgent interim relief before the full tribunal is constituted, for a separate emergency arbitrator fee (see Costs, below).

Separately, either party may still go to a court of competent jurisdiction for urgent injunctive relief to protect intellectual property or confidential information while an arbitration is pending, rather than waiting for the arbitration to conclude.

This clause does not remove any non-waivable statutory right you have, including rights under the Australian Consumer Law. Nor does it prevent either party from seeking the urgent court-ordered injunctive relief described above. Arbitration applies to the underlying dispute — it is not a way for either side to avoid a right the law says cannot be contracted away.

We use arbitration because it is generally faster and more predictable than litigating the same dispute in the courts of multiple countries. The ACICA Arbitration Rules keep the details of a dispute confidential, and, as described above, an award can generally be enforced through the local courts in each of aicial’s current and target markets without re-arguing the underlying dispute, wherever you and we are each located. Arbitration does carry fixed, up-front institutional fees, which can be disproportionate to a small claim — see Costs, below.

ACICA charges its own registration fee and an administration fee, separate from the arbitrator’s own fees and each party’s legal costs. As at publication, ACICA’s registration fee is AUD 2,500 and is not refundable once paid. For amounts in dispute up to AUD 100,000 — the band most aicial disputes fall into — the administration fee is a flat AUD 1,500 under the standard ACICA Arbitration Rules 2021, or AUD 1,000 under the Expedited Rules described above (unless ACICA determines otherwise). Above AUD 100,000, the administration fee moves to a percentage-based scale through several further tiers, capped at a maximum administration fee of AUD 80,000. If a party applies for emergency interim relief before the tribunal is constituted, ACICA separately charges an Emergency Arbitrator Fee of AUD 10,000 plus a AUD 2,500 application fee. These figures exclude GST.

Because the registration fee and the minimum administration fee apply regardless of the size of the claim, commencing arbitration costs at least AUD 4,000 excluding GST under the standard Rules, or AUD 3,500 if ACICA grants an Expedited application — before the arbitrator’s own fees and either party’s legal costs. For a smaller dispute, this entry cost can equal or exceed the value of the claim itself, so it is worth weighing against the value of your dispute before commencing arbitration.

Unless the tribunal decides otherwise having regard to the circumstances of the case, the unsuccessful party bears the costs of the arbitration. ACICA reviews and updates its fee schedule from time to time, so we point you to ACICA’s own published Schedule of Fees for the current figures rather than treating the numbers on this page as permanently accurate.

To raise a concern informally, or with any question about this guide or our Terms of Service, contact:

Aperim Pty Ltd, which operates the aicial brand
ABN 46150699737
ACN 150699737
New South Wales, Australia
Email: legal@aicial.com