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( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
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, most recently amended in July 2010. The IAA also incorporates the UNCITRAL Model Law on International Commercial Arbitration ('Model Law') as applicable to international arbitrations.
In addition to the IAA, each state and territory has enacted domestic arbitration legislation (the Commercial Arbitration Acts ('CAA')). Before mid-2010, the CAAs of Australia's six states and two territories were largely uniform but were not based on the Model Law. The CAAs applied to domestic arbitrations and to international arbitrations where the parties had chosen to opt out of the Model Law.
From mid-2010, the states and territories began revising their CAAs on the basis of the Model Law. The state of New South Wales took the lead, reforming its law on 28 June 2010. Similar changes have since been passed by the parliaments of Tasmania, Victoria, South Australia and the Northern Territory. A bill is currently before the parliaments of Western Australian and Queensland. The Tasmanian parliament passed the changes, but has yet to put its revised CAA into force. Similarly, the Northern Territory parliament passed the legislation on 31 August 2011 but it is not yet in force. In the Australian Capital Territory, the 1986 CAA continues to be in force and no bill based on the Model Law has yet been introduced.
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:
No. However, the absence of an express reservation is 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?
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, which is incorporated into the IAA by s. 16(1). Arts. 35 and 36 of the Model Law apply to the recognition and enforcement of arbitral awards in international arbitrations, including those made in Australia, to which 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)?
(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 s. 35 of the UNCITRAL Model 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.
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?
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
Since the 2010 amendments to the IAA, a foreign arbitral award will be treated by a court of a state or territory as if the award were a judgment or order of that court (s. 8(2), IAA). Accordingly, it appears (but has yet to be confirmed in a court) that the relevant limitation period for a foreign award is that which applies to taking action on a court judgment, rather than that which applies to an arbitral award made in Australia. On that basis these are the relevant limitation periods for each State and Territory:
New South Wales: 12 years, running from the date on which the award first becomes enforceable.
(Sources: IAA, ss. 8(2) and 8(3); Limitation Act 1969 (NSW), s. 17(1).)
Victoria: 15 years from the date on which the award became enforceable.
(Sources: IAA, ss. 8(2) and 8(3); Limitation of Actions Act 1958 (VIC), s. 5(4).)
Northern Territory: 12 years from the date on which the award first becomes enforceable.
(Sources: IAA, ss. 8(2) and 8(3); Limitation Act 1981 (NT), s. 15(1)).
Queensland: 12 years from the date on which the award becomes enforceable.
(Sources: IAA, ss. 8(2) and 8(3); Limitation of Actions Act 1974 (QLD), s. 10(4).)
Tasmania: 12 years from the date on which the award became enforceable.
(Sources: IAA, ss. 8(2) and 8(3); Limitation Act 1974 (TAS), s. 4(4).)
Western Australia: 6 years from the date of accrual of the cause of action, which, in the case of a cause of action to enforce an arbitral award, is the date when default in observance of the award first occurs.
(Sources: IAA, ss. 8(2) and 8(3); Limitation Act 2005 (WA), s. 13(1), 64.)
Questions arise as to the interplay between the Limitation Act 2005 (WA) and the Civil Judgments Enforcement Act 2004 (WA). The relevant provisions of the latter read:
- An order to enforce a judgment 'must not be made if 12 years have elapsed since the judgment took effect' (s. 12).
- 'A judgment has effect (i) at the time it is given or (ii) if it provides, or the court giving it orders, that it has effect from an earlier or later time, at that time' (s. 11(1)).
Leave of the court is required before enforcing a judgment, inter alia, if 6 years have elapsed since the judgment took effect; if the person seeking to enforce the judgment was not personally a party to the case in which the judgment was given; or if the person liable to satisfy the judgment was not personally a party to the case in which the judgment was given (s. 13).
Australian Capital Territory: 12 years from the date when the award first becomes enforceable.
(Sources: ss. 8(2) and 8(3); Limitation Act 1985, s. 14(1) (ACT).)
South Australia: Actions upon any award shall be commenced within 15 years after the cause of action accrued (Sources: ss. 8(2) and 8(3); 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?
A competent court of a state or territory or the Federal Court of Australia.
(Source: IAA, ss. 3, 8(2) and 8(3).)
In determining whether a court has 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. As a matter of practice, enforcement proceedings will be commenced either in the Supreme Court of the relevant state or territory, or in the Federal Court.
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. (This was recently confirmed in Traxys Europe SA v. Balaji Coke Industry Pvt Ltd (No 2)  FCA 276.) In practice, enforcement will be sought only 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. 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, r. 25.11). The procedure across Australia's states is not uniform in this respect. The Rules of Court and Practice Notes of the Federal Court and the NSW Supreme Court contemplate that enforcement proceedings generally will be commenced inter partes. Conversely, the Rules of Court of the Supreme Court of Victoria contemplate that enforcement proceedings will generally be commenced ex parte. However, the Victorian Court of Appeal in IMC Aviation Solutions Pty Ltd v. Altain Khuder LLC  VSCA 248 ('Altain Khuder') recently confirmed that where there is an issue as to whether the award debtor is a party to the arbitration agreement, proceedings should be commenced inter partes.
Subject to the applicable rules, proceedings may, for example, be commenced ex parte where a party is seeking a freezing order in support of proceedings commenced for recognition and enforcement of a foreign award (see e.g. Traxys Europe SA v. Balaji Coke Industry Pvt Ltd (No. 2)  FCA 276, where ex parte enforcement proceedings were coupled with an ex parte application to freeze the assets (shares in an Australian company) over which enforcement was sought).
10. (a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(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 or the Federal Court. Appeals from a state Supreme Court are heard, in limited cases, by the state's Court of Appeal or Full Court (as the case may be). If the enforcement action was commenced in the Federal Court, appeals 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 or Full Court (as the case may be), a party can seek leave to appeal to Australia's apex 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. To date there has never been an appeal to the High Court of Australia in connection with the enforcement of an arbitral award.
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 (see below).
Western Australia: As soon as a judgment enforcing the award has been handed down 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 stating that a country specified in the certificate is, or was at a specified time, 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.
If enforcement of an award is sought against a non-signatory to an arbitration agreement, the award creditor should supply additional evidence to prove, on a prima facie basis, that the award debtor is bound by the arbitration agreement (Altain Khuder, ( (Hansen JA and Kyrou AJA)).
(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, it may be prudent for the petitioner to submit the entire award and the entire contract containing the arbitration agreement pursuant to which the award purports to have been made (Altain Khuder). These may, in any event, be required by the court depending on what defence to enforcement is raised.
(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 two 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.)
(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?
(b) If yes, into what language?
(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.
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 at the place where it was made. Refusing to grant the stay, Justice Rolfe held that in order to grant a stay under s. 8(8) of the IAA, the party requesting the stay must show first that proceedings had been brought before a competent authority, second that those proceedings were for the setting aside or suspension of the arbitral award in question, and third that there is some prima facie or reasonably arguable case.
(Source: Hallen v. Angledal  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. Granting the adjournment, Justice Byrne regarded as determinant the fact that the adjournment would be for a relatively short time.
(Source: Toyo Engineering Corp. v. John Holland Pty Ltd  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. <em>forum non conveniens</em>)?
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: The court has a general discretion 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 make an order only 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. A recent example of a court requiring security as a condition for the adjournment/stay of an application to enforce a foreign award is ESCO Corporation v. Bradken Resources Pty Ltd  FCA 905.
(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 Gen 2.)
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 that any document should remain confidential or, in the case of a non-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 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, such as where the presence of the public would defeat the ends of justice.
(Sources: 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 issue an order prohibiting the publication or disclosure of any information tending to reveal the identity of a party to proceedings if it considers this necessary for 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 containing final decisions on some of the disputed issues are enforceable like final awards. Queensland distinguishes between arbitral 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' for it to 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 an 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 the decisions on matters submitted to arbitration can be separated from those on matters not submitted to arbitration, the part of the award containing the former decisions may be enforced.
(Source: IAA, s. 8(6).)
An award can be enforced in part, whether this need arises from the fact that part of the award has already been performed or from the fact that the award contained a bad but severable provision (e.g. an uncertain provision). However, severance will not be allowed where the remainder of the award is affected by the provision that is rejected.
(Source: ACN 006 397 413 Pty Ltd v. International Movie Group (Canada) Inc. and Anor  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)(f), 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 at 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.
Albert Monichino S.C, Damian Sturzaker, Bruce Collins S.C, Hugh Foxcroft S.C, Bjorn Gehle