This Country Answer reflects the state of the law as of 18 July 2008. Please refer to the explanations in the chapter entitled Disclaimer and Preliminary Note.

A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Australia.

Implementing jurisdictions: Commonwealth of Australia. Applies in all Australian states, territories and external territories.

Explanatory note: Australia is a federation with legislative powers divided between the Commonwealth of Australia as the federal entity and six federal states (Queensland, New South Wales, Victoria, Tasmania, Western Australia, South Australia). In addition, there are two federal territories (Northern Territory and Australian Capital Territory) with their own governments. The Commonwealth of Australia and each state and territory has its own court system. The New York Convention ('NYC') is enacted by the International Arbitration Act 1974 ('IAA'), a Commonwealth Act applicable in all Australian states and territories.

In addition to the IAA, each state and territory has enacted uniform domestic arbitration legislation (the Commercial Arbitration Acts ('CAA')). This Country Answer covers the law of the Commonwealth of Australia and three states: New South Wales ('NSW'), Victoria ('VIC') and Western Australia ('WA'). For Q.6, however, every state and territory is covered.

2. Date of entry into force of the New York Convention

24 June 1975.

(Source: Gazette 1975, No. G24, p. 2.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity

No. The absence of an express reservation is however inconsistent with s. 8(4) of the IAA which contains a reciprocity requirement for enforcement under the NYC. S. 8(4) of the IAA provides that a party seeking to enforce an award that was not made in a Convention country may do so only if that party is either domiciled or ordinarily resident in Australia or in a Convention country. S. 8(4) is accordingly less limitative than the ordinary reciprocity reservation.

(Source: IAA, s. 8(4).)

(b) commercial relationships

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

The IAA, and consequently the NYC, applies to the recognition and enforcement of 'foreign awards' which are defined as arbitral awards made in a country other than Australia (IAA, s. 3). An award made in an international arbitration seated in Australia can be enforced under the UNCITRAL Model Law on International Commercial Arbitration, which is enacted by s. 16(1) of the IAA. Articles 35 and 36 of the Model Law apply to the recognition and enforcement of arbitral awards in international arbitrations, including those made in Australia, where the NYC is not applicable. Arts. 35 and 36 of the Model Law are similar to their equivalents in the NYC.

(Sources: IAA, ss. 3, 16(1) and 20; Model Law, Arts. 1(3)(a) to (c), 35 and 36.)

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards

(e.g. statutes, regulations, codes, directives, other legal instruments)?

Federal: (i) IAA; (ii) UNCITRAL Model Law; (iii) NYC; (iv) Foreign Judgments Act 1991 (Cth). Provided that the award is not an ICSID award, and falls within the definition of a foreign award in the IAA, it will be enforceable under the NYC. Any other arbitral award rendered in an international arbitration will be enforceable under the UNCITRAL Model Law. Where parties to an international arbitration seated in Australia have opted out of the Model law, a foreign award may be enforceable either under state law (see below) or at common law. Awards can be enforced under the Foreign Judgments Act 1991 where the award has become enforceable in a court of another country in the same manner as a judgment or order of that court.

In addition, there are Acts and Regulations that govern proceedings in the Federal and High Courts that may be relevant to procedural aspects of the conduct of enforcement proceedings in Australia.

State: If the NYC does not apply to a foreign award, the award may be enforced pursuant to the Uniform CAAs of each state or territory, which are substantially similar in content. Foreign awards may similarly be enforced at common law.

(Sources: Commercial Arbitration Act 1984 (VIC), s. 33; Commercial Arbitration Act 1985 (WA), s. 33; Commercial Arbitration Act 1986 (TAS), s. 33; Commercial Arbitration Act 1990 (QLD), s. 33; Commercial Arbitration Act (NT), s. 33; Commercial Arbitration Act 1984 (NSW), s. 33; Commercial Arbitration Act 1986 (ACT), s. 33. The full CAAs can be viewed at <www.austlii.edu.au>.)

C. Limitation periods (time limits)

6. (a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

Yes.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

New South Wales: 12 years where the arbitration agreement is made by deed, otherwise 6 years. The limitation period begins to run from the date when the party against whom enforcement of an award is sought first defaults in respect of compliance with the award.

(Source: Limitation Act 1969 (NSW), s. 20.)

Victoria: 15 years where the arbitration agreement is made under seal, otherwise 6 years. The limitation period begins to run on the date the cause of action accrued.

(Source: Limitation of Actions Act 1958 (VIC), s. 5(1)(c) and 5(3).)

Northern Territory: 12 years where the arbitration agreement is made by deed, otherwise 3 years. The limitation period begins to run from the date upon which the right to enforce the award first accrued to the plaintiff or a person through whom he or she claims.

(Source: Limitation Act 1981 (NT), s. 18(2).)

Queensland: 12 years where the arbitration agreement is made under seal, otherwise 6 years. The limitation period begins to run on the date the cause of action arose.

(Source: Limitation of Actions Act 1974 (QLD), s. 10(1)(c) and 10(3).)

Tasmania: 12 years where the arbitration agreement is made under seal, otherwise 6 years. The limitation period begins to run on the date the cause of action accrued.

(Source: Limitation Act 1974 (TAS), s. 4(1)(c) and 4(3).)

Western Australia: 12 years where the arbitration agreement is made under seal, otherwise 6 years.

(Sources: Limitation Act 2005 (WA), s. 13(1) and 18; Limitation Act 1935 (WA), s. 38(1)(c).)

However, if the cause of action accrued before 15 November 2005 and the arbitration agreement was made under seal, the limitation period is 20 years.

(Source: Limitation Act 1935 (WA), s. 38(1)(e)(ii).)

The limitation period begins to run from when the cause of action accrues. From 15 November 2005 onwards, the cause of action to enforce an arbitral award accrues when default in observance of the award first occurs, being the default in respect of which the action is brought.

(Source: Limitation Act 2005, s. 64 (WA).)

Prior to 15 November 2005, the cause of action to enforce an arbitral award accrued when the claimant became entitled to enforce the award.

(Sources: Antclizo Shipping Corporation v. The Food Corporation of India, unreported, Supreme Court of Western Australia, Mstr Bredmeyer, 6 Nov. 1998, following International Bulk Shipping & Service v. Minerals Trading Corp. [1996] 1 All ER 1017 (English Court of Appeal).)

Australian Capital Territory: 12 years where the arbitration agreement is made under seal, otherwise 6 years. The limitation period begins to run when the cause of action first accrues to the plaintiff or to a person through whom he or she claims. The cause of action to enforce an arbitral award accrues on the date when default first happens in observance of the award, being the default in relation to which the action is brought.

(Source: Limitation Act 1985, Section 17 (ACT).)

South Australia: Leave may be granted for the enforcement of an award in the same manner as a judgment or order of the Court. Actions upon any judgment or recognizance shall be commenced and sued within 15 years of the cause of action accruing or the recovery of judgment. Where the arbitration agreement was not made under seal or by deed, the limitation period is 6 years after the accrual of the cause of action. The limitation period begins to run from the date when the party against whom enforcement of an award is sought first defaults in respect of compliance with the award.

(Sources: Commercial Arbitration and Industrial Referral Agreements Act 1986 (SA), s. 33; Limitation of Actions Act 1936 (SA), ss. 34 and 35.)

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

Any court in Australia, including a court of a state or territory, provided that it is a court of competent jurisdiction. (Source: IAA, s. 3.)

In determining whether a court has competent jurisdiction, it is important to consider the value of the award and the procedural rules of the court to ensure the court has proper power to enforce or recognize. Where a party seeks to commence enforcement proceedings in the Federal Court, it is important to determine whether the matter is one in which the Federal Court has original jurisdiction. As a matter of practice, enforcement proceedings will generally be commenced in the Supreme Court of the relevant state or territory, each of which have unlimited jurisdiction.

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

There are no requirements regarding domicile or location of assets within the jurisdiction. In practice, enforcement will only be sought if: (a) assets are located in the jurisdiction; or (b) attachment of a debt is sought and the debtor is located within the jurisdiction.

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

Enforcement proceedings are generally commenced inter partes. However, a party may be granted leave to proceed ex parte in circumstances as prescribed by the relevant procedural rules of each state or territory court (e.g. Uniform Civil Procedure Rules (UCPR) (NSW), r. 11.4). Proceedings may, for example, be commenced ex parte in circumstances where a party is seeking a freezing order in support of proceedings commenced for recognition and enforcement of a foreign award (e.g. UCPR (NSW), r. 25.11).

10. (a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes.

(b) How many levels of appeal or recourse are available against this decision?

One, unless there are exceptional circumstances. As stated under Q.7, an action to recognize or enforce a foreign award would usually be commenced in the relevant state Supreme Court. Appeals from a state Supreme Court are heard, in limited cases, by that state's Court of Appeal. If the enforcement action was commenced in the Federal Court, appeals from the Federal Court are heard, in limited cases, by the full court of the Federal Court.

From the full court of the Federal Court or from a state Court of Appeal, a party can seek leave to appeal to Australia's highest court-the High Court of Australia-but leave is rarely given. There must be an error in the lower court's decision and reviewing the decision must be of sufficient public interest to warrant the attention of the High Court of Australia.

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

New South Wales: After obtaining a writ of execution for the court's judgment recognizing the foreign award. The UCPR sets out the circumstances in which leave of the court will be required before a writ of execution can be issued.

(Source: UCPR (NSW), Pt 39, Div. 1.)

Victoria: There is no statutory authority on this issue but the position would likely be the same as in Western Australia.

Western Australia: As soon as judgment enforcing the award has been awarded by a court.

(Source: Civil Judgments Enforcement Act 2004 (WA), s. 11)

E. Evidence required

12. (a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

The following evidence must be supplied: (i) the duly authenticated original award or a duly certified copy and the original arbitration agreement under which the award purports to have been made or a duly certified copy; (ii) a certificate purporting to be signed by the Secretary to the Department of Foreign Affairs and stating that a country specified in the certificate is, or was at a time so specified, a signatory to the NYC; (iii) a copy of the Gazette containing a proclamation being proof of the fact that Australia has acceded to the NYC and the fact that the NYC entered into force for Australia on or before the date so fixed.

(Source: IAA, ss. 9(1) and 10.)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

The relevant parts of the documents (e.g. the arbitration agreement and the dispositive part of the award) are necessary. However, depending on the defence to enforcement, the entire award may need to be introduced.

(c) Are originals or duly certified copies required?

Originals or duly certified copies.

(Source : IAA, s. 9.)

(d) How many originals or duly certified copies are required?

One original or duly certified copy. However, the standard practice is to provide the court with 2 copies (one of which is the original or certified copy) plus one copy for each party to the proceedings.

(e) Does the authority or court keep the originals that are filed?

New South Wales: Yes.

(Sources: State Records Act 1998 (NSW) No. 17, ss. 3 and 22(3); State Records Regulation 2005 (NSW), s. 6 and Schedule 3.)

Victoria: Yes.

(Source: Public Records Act 1973 (VIC), s. 2 (definition of 'public record').)

Western Australia: Yes.

(Source: State Records Act 2000 (WA).)

13. (a) Is it necessary to provide a translation of the documents supplied?

Yes.

(b) If yes, into what language?

English.

(Source: IAA, s. 9(3).)

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

Yes, the translation must be certified by a diplomatic or consular agent in Australia of the country in which the award was made or otherwise to the satisfaction of the court. In practice, however, some courts accept translations made by official, certified, Grade 1 translators without further certification.

(Source: IAA, s. 9(4).)

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

A full translation of any documentation presented to the court is required.

(Source: IAA, s. 9(3).)

F. Stay of enforcement

14. (a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Yes. s. 8(8) of the IAA implements Art. VI of the NYC.

(Source: IAA, s. 8(8).)

In Hallen v. Angledal, the Supreme Court of NSW considered the court's discretion under Art. VI of the NYC to stay local proceedings pending the outcome of an application to set aside an arbitral award in the place it was made. Justice Rolfe, in refusing the grant the stay, held that in order to grant a stay under s. 8(8) of the IAA, the party requesting the stay must first show that proceedings had been brought before a competent authority, secondly that those proceedings were for the setting aside or suspension of the arbitral award in question, and thirdly that there is some prima-facie or reasonably arguable case.

(Source: Hallen v. Angledal [1999] NSWSC 552, Supreme Court of New South Wales.)

By contrast, an application for adjournment of enforcement proceedings pending the resolution of a setting-aside application in Singapore was successful in Toyo Engineering Corp. v. John Holland Pty Ltd. Victoria Supreme Court Justice Byrne noted the following circumstances: (i) the setting aside (the case refers to it as an 'impeachment application') application in Singapore was not hopeless; (ii) adequate security for payment of the award was offered, should it survive the setting aside application; (iii) the setting-aside application had been brought promptly; and (iv) there was no relevant prejudice to the other party. The applicant had further submitted that if an adjournment was refused and the award was subsequently set aside, it would suffer some prejudice in the form of trouble, expense and delay in seeking to recover money paid under the award from the other party. Justice Byrne, in granting the adjournment, regarded the fact that the adjournment would be for a relatively short time as the determinative factor.

(Source: Toyo Engineering Corp. v. John Holland Pty Ltd [2000] VSC 553 per Justice Byrne , Supreme Court of Victoria.)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

Under federal insolvency legislation, leave is required before proceedings can be commenced against an insolvent debtor. Often the grant of leave will be conditional upon a promise not to enforce judgment without seeking further leave. In determining whether to grant leave, the court will consider, among other things, the effect of enforcement on the insolvent debtor's ability to satisfy its creditors. Certain enforcement actions against the property of an insolvent company will be prohibited where the company is the subject of an actual or proposed winding-up order.

(Sources: Bankruptcy Act 1966 (Cth), s. 60; Corporations Act 2001 (Cth), ss. 440D and 500(2).)

New South Wales: There is a general discretion of the court to order a stay of proceedings before it, either permanently or until a specified day.

(Source: Civil Procedure Act (NSW) 2005, s. 67.)

Victoria: The relevant court has a general power to stay its proceedings where such proceedings are 'scandalous, frivolous or vexatious' or 'an abuse of the process of the court'.

(Sources: Magistrates Court Civil Procedure Rules 1999, r. 9A.01; County Court Rules of Procedure in Civil Proceedings 1999, r. 23.01; Supreme Court (General Civil Procedure) Rules 2005, r. 23.01.)

Western Australia: A person against whom a judgment is given may apply for an order suspending enforcement of the judgment, but the court will only make an order if there are special circumstances that justify doing so.

(Source: Civil Judgments Enforcement Act 2004 (WA), s. 15.)

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

The court may order the party seeking the stay to give suitable security.

(Source : IAA, s. 8(8).)

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

New South Wales: Access to court-filed documents may be granted to non-parties only with leave of the court. Leave will not be granted if the judge or registrar considers that the documents should be kept confidential. Parties to enforcement proceedings can and should ensure that confidentiality is maintained by seeking a specific order that the file remain confidential.

(Sources: UCPR, r. 36.12; Supreme Court Practice Note SC Gen2.)

Victoria: Any person may, upon payment of a fee, inspect and obtain a copy of any document filed in a court proceeding. However, this right will be removed where the court orders any document to remain confidential or, in the case of a person not a party, the prothonotary decides that a document should remain confidential to the parties.

(Source: Supreme Court (General Civil Procedure) Rules 2005 (VIC), r. 28.05.)

Western Australia: A person wanting to inspect documents filed in legal proceedings for recognition and enforcement of an arbitral award would require leave of the court, and very cogent reasons would have to be provided in order to obtain leave.

(Source: Rules of the WA Supreme Court 1971, Order 67 r. 11(1)(d), Order 81D r. 11(1).)

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

Hearings are not automatically confidential. However, court business in relation to any proceeding may be conducted privately in certain circumstances, relevantly including where the presence of the public would defeat the ends of justice.

(E.g. Civil Procedure Act 2005 (NSW), s. 71; Supreme Court Act 1986 (VIC), s. 18.)

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove names of parties or avoid publication of confidential information (such as business or State secrets)?

Yes, decisions are sometimes published. The court may, by order, prohibit the publication or disclosure of any information tending to reveal the identity of a party to proceedings, if it is of the opinion that it is necessary to secure the proper administration of justice.

(Sources: Civil Procedure Act 2005 (NSW), s. 72; Supreme Court Act 1986 (VIC), s. 18.)

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

Partial awards, which definitively decide some of the disputed issues, are enforceable like final awards. However, the state of Queensland draws a distinction between arbitral tribunal orders and awards. In Resort Condominiums, the Supreme Court of Queensland held that a decision 'must determine finally at least some of the matters in dispute before the parties' before it will be considered an award within the meaning of the NYC (at para. 37). Australian law is applied to the question of whether or not a decision is characterized as an award or order. The arbitral tribunal's own characterization is not determinative.

(Sources: IAA, s. 3(1); Resort Condominiums International Inc. v. Bolwell (1993) 118 ALR 655, Supreme Court of Queensland.)

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

New South Wales: The court has the power to enforce an award in the same manner as a judgment or order of the court. Accordingly, the court can exercise its ordinary powers to order non-monetary relief.

(Sources: CAA (NSW), s. 33; UCPR (NSW), 36.1; Supreme Court Act 1970 (NSW), Pt 5, Div. 1; District Court Act

1973 (NSW), s. 6.)

Victoria: Same as for New South Wales.

(Sources: Magistrates Court Act 1989 (VIC), s. 100; County Court Act 1958 (VIC), s. 37(1)(a).)

Western Australia: Same as for New South Wales.

(Sources: CAA (WA), s. 33; Civil Judgments Enforcement Act 2004 (WA), Pt 5.)

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

Where an award deals with a difference not contemplated by, or not falling within the terms of, the submission to arbitration, or contains a decision on a matter beyond the scope of the submission to arbitration, and that aspect of the award can be separated from decisions on matters not so submitted, that part of the award which contains decisions on matters so submitted may be enforced.

(Source: IAA, s. 8(6).)

An award can be enforced in part, whether the need for severance results from the fact that the award had been partially performed or from the fact that it contained a bad but severable provision (e.g. an uncertain provision). However, severance of an award will not be granted where the remainder of the award is affected by the part of the award rejected.

(Source: ACN 006 397 413 Pty Ltd v. International Movie Group (Canada) Inc. and Anor [1997] 2 VR 31, Supreme Court of Victoria.)

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

IAA, s. 8(5), mirrors Art. V(1)(e) of the NYC, including the discretion implied by the words 'the court may'. However, Australian courts have never been asked to consider enforcing an award that has been set aside in its place of origin. Australian courts would be likely to consider the approach adopted by UK courts. To date, there is no known example in England, Wales or Northern Ireland of a court enforcing an award that has been set aside by a competent authority as referred to in the NYC Art. V(1)(e).

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

While the legislative and procedural regime in Australia for the enforcement of foreign arbitral awards is relatively straightforward and generally inexpensive, the courts have the power to order a party seeking enforcement to provide security for costs. They may exercise this discretion in the context of enforcement proceedings, particularly where the plaintiff is a corporation and/or ordinarily resident abroad.

Country Rapporteur: Simon Greenberg.

Other contributors: Alex Baykitch, Simon Davis, Richard Garnett, Bjorn Gehle, Bronwyn Lincoln, Damian Sturzaker, Katherine Williams.