Country Q&A

GLOBAL GUIDES 2015/16

ARBITRATION

Arbitration procedures and practice in

Australia: overview
Leon Chung, Elizabeth Macknay and Elizabeth Poulos**
Herbert Smith Freehills

USE OF ARBITRATION AND RECENT TRENDS

1.

How is commercial arbitration used and what are the recent

trends?

Use of commercial arbitration

The use of international commercial arbitration in Australia to
resolve disputes has significantly increased in recent years.
Commercial arbitration is frequently used in a wide range of
disputes including those in the energy, resources, construction and
maritime industries. Recent legislative changes, the pro-arbitration
approach of the Australian courts and increased trade between
Australia and Asia have assisted in expanding the use of
commercial arbitration as a means of cross-border dispute
resolution in Australia across a range of sectors.

Recent trends
There have been a number of recent amendments to the
International Arbitration Act 1974 (Cth) (IAA) that governs
international arbitration in Australia, which implement the 2006
revisions to the UNCITRAL Model Law. These amendments have
resulted in a more effective and efficient arbitral process consistent
with international best practice and have been reflected in recent
pro-arbitration Australian court decisions. Each state and territory
of Australia has also enacted uniform legislation regulating
domestic arbitration based on the UNCITRAL Model Law.
The Australian national courts have demonstrated a clear move to
a more arbitration-friendly stance in recent years. In addition to an
increase in pro-arbitration decisions,
the Federal Court of Australia and the Supreme Courts of New
South Wales and Victoria have established panels of specialist
judges to adjudicate cases concerning international arbitrations. In
the Supreme Court of Western Australia, all international
arbitration matters are managed in a dedicated Commercial
Arbitration List and referred directly to a single judge of the
Supreme Court (currently the Chief Justice of Western Australia).
These specialist panels provide for a more consistent and highquality application of Australia's international arbitration laws by
specialist judges aware of the developments in the field of
arbitration.
The benefits of specialist judges with international arbitration
experience was recently demonstrated in the Victorian Supreme
Court case Giedo van der Garde BV v Sauber Motorsport AG [2015]
VSC 80, where the applicant sought the urgent enforcement of a
foreign arbitral award in time for the applicant to be reinstated in a
Formula One race that was taking place eight business days later.
Taking into account the urgency of the matter, the Supreme Court
of Victoria heard the matter two business days after the matter was
filed and delivered a judgment enforcing the award within a further
two days. The hearing was expedited to protect the effectiveness of
the award.
Thomson Reuters
This article was first published in the Arbitration Global Guide 2015/16
and is reproduced with the permission of the publisher, Thomson Reuters.
The law is stated as at 1 August 2015.

global.practicallaw.com/1-618-2164

Australian courts have adopted a restrictive interpretation of the

public policy ground for refusal of enforcement of a foreign award.
The Full Court of the Federal Court of Australia has held that
enforcement can only be refused where the party resisting
enforcement can demonstrate real practical unfairness and the
award is so fundamentally offensive to the jurisdiction's notions of
justice that a court could not reasonably be expected to overlook
the objection (TCL Air Conditioner (ZhongShan) Co Ltd v Castel
Electronics Pty Ltd (2014) 311 ALR 387). In doing so, the court
recognised the dangers that judicial review of factual findings of
arbitral tribunals poses to the system of international arbitration.
Australia has also seen a significant increase in the awareness and
use of investor-state dispute settlement (ISDS) in recent years. The
Australian Government's approach to ISDS has undergone a
number of changes following the first investment treaty arbitration
that was commenced against Australia by Phillip Morris in 2011
under the Hong Kong Australia bilateral investment treaty.
Australia has historically adopted ISDS provisions in five free trade
agreements (Chile, Singapore, Thailand, Korea and NZ-ASEAN)
and 21 bilateral investment treaties (including with Hong Kong,
Argentina, India, Hungary and Vietnam). However, Australia has
recently signalled that it will consider including ISDS provisions in
agreements on a case-by-case basis. This has led to ISDS
provisions being included in free trade agreements entered into
with Korea in December 2014 and reportedly also with China in an
agreement signed in November 2014, but not with a recently
concluded free trade agreement between Australia and Japan that
entered into force on 15 January 2015.
In November 2014, the Perth Centre for Energy and Resources
Arbitration (PCERA) was formally launched. Located in Perth,
Western Australia, PCERA offers a range of arbitration-related
services, acting primarily as an appointing authority for domestic
and international arbitrations located in Perth with a focus on
disputes in the energy and resources industries in Western
Australia. In addition to supporting arbitrations, PCERA offers
expert determination services by way of a panel of retired judges
and practising senior counsel who may be appointed as experts to
determine commercial disputes.
In May 2015, Australia's peak arbitration body, the Australian
Centre for International Commercial Arbitration (ACICA) celebrated
its 30th anniversary in Sydney. The most recent version of the
ACICA Rules was updated in 2011. An exposure draft for ACICA
Rules 2015 was released in 2014, which includes revised provisions
on consolidation and joinder as well as expedited rules for disputes
less than A$5 million. Other arbitration institutions in Australia
include LEADR & the Institute of Arbitrators and Mediators
Australia (LEADR & IAMA). The IAMA Arbitration Rules were
amended in 2014 and also include Fast Track Arbitration Rules.
The Australian International Disputes Centre and Australian
Commercial Disputes Centre have also recently amalgamated as
the Australian Disputes Centre (ADC) to more efficiently deliver
their disputes resolution services both nationally and
internationally.

Country Q&A

Advantages/disadvantages
There are significant advantages in opting to resolve disputes
through commercial arbitration rather than litigation in Australia,
including that arbitration is:

More readily enforceable where the assets that are the subject
of a dispute are located outside of Australia.

Neutral.

Conducted in private.

The advantages of seating international arbitrations in Australia

are:

Australia's reputation as a neutral seat.

A stable political environment operating under the rule of law.

Many sophisticated arbitrators and counsel experienced in the

field.

A legislative framework consistent with the most recent

amendments to the 2006 revisions to the UNCITRAL Model
Law and internationally accepted norms.

An independent legal and court system supportive of

arbitration.

Arbitrations are conducted in private; however, documents used in

private arbitrations will not be regarded as confidential for that
reason alone (Esso Australia Resources v Plowman (1995) 183 CLR
10). To facilitate confidentiality in commercial arbitrations, the
amendments to the IAA included specific provisions regarding
confidentiality in arbitral proceedings. Sections 23C to 23G of the
IAA now contain opt-in provisions providing that parties must not
disclose confidential information in relation to the arbitral
proceedings, except for specific cases. Parties can also incorporate
confidentiality provisions in their arbitration agreement or choice of
arbitral rules.

arbitral tribunal the power to make orders regarding the inspection

of evidence by either the arbitral tribunal or others. This section
also clarifies that the provisions relating to the Model Law
regarding interim measures would similarly apply to any such
orders made under section 23J.
The states and territories of Australia have all also enacted uniform
legislation relating to domestic arbitration based on the UNCITRAL
Model Law, which has resulted in a uniform and consistent
legislative structure governing commercial arbitration in Australia.

Mandatory legislative provisions

3.

Under the International Arbitration Act 1974 (Cth) (IAA), the

UNCITRAL Model Law mandatorily applies as the law governing
the conduct of all international commercial arbitrations seated in
Australia (section 16, IAA). Parties cannot opt-out of the UNCITRAL
Model Law either by the express choice of a foreign arbitration law,
or impliedly by the choice of arbitral rules (either institutional or ad
hoc). In addition, section 21 of the IAA specifies that the UNCITRAL
Model Law "covers the field" of matters relating to international
arbitration. The effect of this is that if the UNCITRAL Model law
applies to an arbitration, then the law of a state or territory relating
to arbitration does not apply to that arbitration.
The IAA also contains optional provisions to which parties can optout. Importantly, the effect of the following opt-out provisions is
that they will automatically apply to all international arbitrations in
Australia unless the parties expressly exclude them:

Power to issue subpoenas: a party to arbitral proceedings may

apply to a court for an order to attend for examination or to
produce specified documents (section 23, IAA).

Failure to assist tribunal: where a party fails to assist the

tribunal in the performance of its functions, the other party can
apply to the court for orders requiring the offending party to
attend court for examination or to produce documents (section
23A, IAA).

Default by party to arbitration agreement: where a party refuses

or fails to attend before an arbitral tribunal for examination
when required to do so under a subpoena, the arbitral tribunal
may continue with the arbitration proceedings in default of
appearance (section 23B(1)(a), IAA).

Inspection of evidence: an arbitral tribunal may make an order

allowing a party to the proceedings to inspect, photograph,
observe or conduct experiments on relevant evidence that is in
the possession of another party to the arbitral proceedings
(section 23J, IAA).

Security for costs: the tribunal can, at any time before the award
is issued, order a party to pay security for costs (section 23K,
IAA).

Interest up to making of award: where an arbitral tribunal

makes an award for the payment of money, the tribunal may
include interest for the whole, or any part, of the period between
the date on which the cause of action arose and the date on
which the award is made (section 25(1), IAA).

Interest on debt under award: where an arbitral tribunal makes

an award for the payment of money by a particular date, and
the amount is not paid by that date, the arbitral tribunal may
direct that interest is payable for the amount not paid by the
due date (section 26, IAA).

Costs: the costs of an arbitration are at the discretion of the

arbitral tribunal (section 27, IAA).

LEGISLATIVE FRAMEWORK
Applicable legislation
2.

What legislation applies to arbitration? To what extent has

your jurisdiction adopted the UNCITRAL Model Law on
International Commercial Arbitration 1985 (UNCITRAL
Model Law)?

The legislative framework governing international arbitration in

Australia is set out in the International Arbitration Act 1974 (Cth)
(IAA), which gives effect as law to the:

UNCITRAL Model Law.

Convention on the Recognition and Enforcement of Foreign

Arbitral Awards.

International Centre for Settlement of Investment Disputes

Convention.

The IAA is a comprehensive legislative regime that governs all

international arbitrations seated in Australia. It provides a robust
framework for international arbitration to facilitate its effective
progression from the early stages of seeking interim measures to
the final stages of enforcing an arbitral award. Amendments were
also made to the IAA in 2010 to give effect to the 2006 revisions to
the UNCITRAL Model Law. In addition to implementing the 2006
revisions to the Model Law, the 2010 amendments to the IAA
provide for a number of additional provisions that supplement the
interim measures regime in the Model Law. For example,
additional provisions in section 23J of the IAA expressly grant the

global.practicallaw.com/arbitration-guide

Are there any mandatory legislative provisions? What is

their effect?

Disclosure of confidential information: parties must not disclose

confidential information in relation to the arbitral proceedings
except in specified circumstances (section 23C, IAA).
Circumstances in which confidential information may be
disclosed: a party to arbitral proceedings or an arbitral tribunal
may disclose confidential information in the specified
circumstances (section 23D, IAA).
Arbitral tribunal may allow disclosure in certain circumstances:
an arbitral tribunal may make an order allowing a party to
arbitral proceedings to disclose confidential information in
circumstances other than those mentioned in section 23D
(section 23E, IAA).
Court may prohibit disclosure in certain circumstances: a court
may make an order prohibiting a party to arbitral proceedings
from disclosing confidential information if it is satisfied that the
public interest in preserving the confidentiality of arbitral
proceedings is not outweighed by other considerations that
render it desirable in the public interest for the information to
be disclosed (section 23F, IAA).
Court may allow disclosure in certain circumstances: a court
may make an order allowing a party to arbitral proceedings to
disclose confidential information if the court is satisfied that the
public interest in preserving the confidentiality of arbitral
proceedings is outweighed by other considerations that render
it desirable in the public interest for the information to be
disclosed (section 23G, IAA).

In most cases, the courts have declined to rule on whether the

matters are not arbitrable and have instead focused on "whether
the scope of the arbitration agreement is broad enough to cover
such a dispute" (ACD Trion Inc v Tridon Australia [2002] NSWSC
896).
Section 11 of the Carriage of Goods by Sea Act 1991 (Cth) states that
any agreement to arbitrate outside Australia contained in sea
carriage documents will be held to be invalid. This issue was the
subject of a decision of the Full Federal Court in

Dampskibsselskabet Norden A/S v Gladstone Civil Pty Ltd [2013]

FCAFC 107 that held a voyage charter party agreement was not a
sea carriage document and therefore the arbitration clause in the
charter party that provided for arbitration seated in London was
valid.

Limitation
5.

Australia imposes limitation periods in which claims may be made

in international arbitration as a matter of substantive law. Each
state and territory has its own statute governing limitation periods.
For example, New South Wales imposes a limitation period of six
years for causes of action founded on contract or tort (section 14,
Limitation Act 1969 (NSW)). These Limitation Acts apply to
arbitration in the same manner as court proceedings. The periods
specified are dependent on the nature of the underlying cause of
action, such as in contract or tort.

ARBITRATION ORGANISATIONS
6.

4.

Does the law of limitation apply to arbitration proceedings?

Does the law prohibit any types of disputes from being

resolved via arbitration?

Which arbitration organisations are commonly used to

resolve large commercial disputes?

The commonly used arbitration organisations are:

Australian courts have generally embraced international
commercial arbitration placing few restrictions on matters capable
of being arbitrated. The International Arbitration Act 1974 (Cth)
(IAA) only requires an arbitration to involve the determination of a
matter that is capable of being settled by arbitration (section
7(2)(b), IAA). This provision has been interpreted by the Australian
courts as "any claim for relief of a kind proper for court" (Elders
CED. Ltd v Dravo Corporation (1984) 59 ALR 206).
Despite this broad interpretation, it remains somewhat uncertain
what matters are capable of being arbitrated in Australia,
particularly those relating to bankruptcy, insolvency and anti-trust
disputes.
In IBM Australia v National Distribution Services (1991) 22 NSWLR
466, the New South Wales Court of Appeal held that issues
relating to consumer protection matters were capable of
settlement by arbitration. Similarly, in Francis Travel Marketing v
Virgin Atlantic Airways (1996) 39 NSWLR 160, the Federal Court of
Australia held that disputes based on misleading and deceptive
conduct in Australia's anti-trust and consumer protection
legislation were also arbitrable. This position was confirmed by
Justice Allsop in the Full Court of Federal Court in Comandate

Australian Centre for International Commercial Arbitration

(ACICA). In 2011, the Australian Government confirmed ACICA
as the sole default appointing authority competent to perform
the arbitrator appointment functions under the amended
International Arbitration Act 1974 (Cth) (regulation 4,
International Arbitration Regulations 2011 (Cth)).

LEADR & Institute of Arbitrators and Mediators Australia.

The Australian International Disputes Centre and the Australian

Commercial Disputes Centre have recently merged into one
brand: Australian Disputes Centre.

See box, Main arbitration organisations.

JURISDICTIONAL ISSUES
7.

What remedies are available where one party denies that

the tribunal has jurisdiction to determine the dispute(s)?
Does your jurisdiction recognise the concept of kompetenzkompetenz? Does the tribunal or the local court determine
issues of jurisdiction?

Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192

who noted the importance of "giving liberal width and flexibility to

elastic and general words of the contractual submission to
arbitration" and confirmed that the words "all disputes arising out
of this contract" was wide enough to include claims under
Australia's anti-trust and consumer protection legislation.

Australia recognises the concept of kompetenz-kompetenz. An

arbitral tribunal may rule on its own jurisdiction, including any
objections with respect to the existence or validity of the arbitration
agreement (Article 16, Model Law; Stapp v Gray (1994) 34 NSWLR
474). Parties can also ask for a court determination as to whether
the tribunal has jurisdiction. In accordance with Article 16(3) of the
Model Law, if the tribunal rules that it has jurisdiction as a
preliminary issue, any party can, within 30 days, request the courts
to decide the matter.

global.practicallaw.com/arbitration-guide

Country Q&A

There are also a number of opt-in provisions in the IAA that will
only apply to international commercial arbitrations in Australia if
the parties expressly agree to include them:

Country Q&A

ARBITRATION AGREEMENTS
Validity requirements
8.

What are the requirements for an arbitration agreement to

be enforceable?

(section 7, International Arbitration Act 1974 (Cth) (IAA)). This

requires that both:

There is a relationship of sufficient proximity between the party

to the arbitration agreement and the person claiming to
prosecute or defend an action through or under that party.

The claim or defence is derived from or vested in the party to the

arbitration agreement.

Substantive/formal requirements
Arbitration agreements must be in writing reflecting option I of
Article 7 of the UNCITRAL Model Law (section 16, International
Arbitration Act 1974 (Cth) (IAA)). This requires that the content of
the agreement is recorded "in any form, whether or not the
arbitration agreement or contract has been concluded orally, by
conduct, or by other means". This requirement also takes into
account modern means of communications such as data messages
and other electronic communications. The requirement for the
agreement to be in writing does not require an exchange of
writings, or signatures, but only requires that the agreement is in a
recorded form, such as an e-mail that records what has been orally
agreed.

Separate arbitration agreement

An arbitration agreement can be in the form of an arbitration
clause in a contract or in the form of a separate agreement (section
16, IAA; Article 7(1), Model Law).
For the avoidance of doubt, a reference in a contract to any
document containing an arbitration clause is an arbitration
agreement, provided that the reference is such as to make the
clause part of the contract (section 3(5), IAA).
For the arbitration clause to be incorporated by reference, the
parties must be taken to have implicitly agreed that the arbitration
clause be incorporated. An intention to incorporate the other
document as a whole, or generally, is sufficient (Behmer & Wright
Pty Ltd v Tom Tsiros Constructions Pty Ltd [1997] VSC 54).

Unilateral or optional clauses

9.

Are unilateral or optional clauses, where one party has the

right to choose arbitration, enforceable?

Unilateral clauses conferring a right on only one party to elect to

resolve a dispute by arbitration are enforceable in Australia (ABB

Power Plants Ltd v Electricity Commission (NSW) t/a Pacific Power

(1995) 35 NSWLR 596).

10. In what circumstances can a third party that did not sign
the contract incorporating the arbitral clause in question be
compelled to arbitrate disputes relating to the contract in
question?
There is only a very limited ability to join third parties to an
arbitration. It is possible that exceptions may apply where the third
party has engaged in fraud, or where the third party is a company
related to the company bound by the arbitration agreement and
the company structure is used to hide the real purpose of the
parent company (Sharrment Pty Ltd v Official Trustee in
Bankruptcy (1988) 118 FCR 449).

There has been judicial support for sufficient proximity where the
claiming party is (Tanning Research Laboratories Inc v O'Brien

(1990) 169 CLR 332; BHPB Freight Pty Ltd v Cosco Oceania
Chartering Pty Ltd (2008) 168 FCR 169):

The assignee of a debt arising out of a contract containing an

arbitration clause.

A subsidiary of a parent company party to an arbitration

agreement.

A parent of a subsidiary company that is party to an arbitration

agreement

Section 7 of the IAA discourages a party to an arbitration

agreement from evading its obligations by relying on a non-party
to commence an action in court for what is essentially a claim that
the parties have agreed to resolve by arbitration. It also protects a
party to an arbitration agreement from having to litigate a nonparty's claim.
In Flint Ink NZ Ltd v Huhtamaki Australia Pty Ltd (2014) 289 FLR
30, the Victorian Court of Appeal stayed court proceedings
commenced by a third party to an arbitration agreement on the
basis that that party was claiming through or under a party to that
arbitration agreement. This case demonstrated that the Australian
courts will give commercial affect to the relationship between
parties and non-signatories to an arbitration agreement. In
particular, companies within the same corporate group that
conduct intra-group affairs may be subject to arbitration where one
company seeks to bring a claim against an outsider in respect of
dealings involving another member of the corporate group.

Separability
12. Does the applicable law recognise the separability of
arbitration agreements?
Australia recognises the separability of arbitration agreements
(Stapp v Gray (1994) 34 NSWLR 474). Unless the parties express an
intention to the contrary, an arbitration clause will ordinarily be
treated as separate from the main contract. Consequently, an
arbitration clause is unaffected by a challenge to the main
contract.

Breach of an arbitration agreement

13. What remedies are available where a party starts court
proceedings in breach of an arbitration agreement or
initiates arbitration in breach of a valid jurisdiction clause?

Court proceedings in breach of an arbitration agreement

In what circumstances is a third party that did not sign the

contract incorporating the arbitral clause in question
entitled to compel a party that did sign the contract to
arbitrate disputes relating to the contract?

Where there is a valid international arbitration agreement and the

proceedings involve the determination of a matter that is capable
of settlement by arbitration, Australian courts will enforce
arbitration clauses by ordering a stay, suspending court
proceedings (section 7(2), International Arbitration Act 1974 (Cth)
(IAA)).

A person claiming through or under a party can apply to the court

for a stay of court proceedings in favour of a valid agreement

In accordance with section 7(5) of the IAA and Article 8(1) of the
Model Law, a court will only refuse an application for a stay of court
proceedings if it finds that the arbitration agreement is null and
void, inoperative or incapable of being performed. Article 8

11.

global.practicallaw.com/arbitration-guide

ARBITRATORS
Number and qualifications/characteristics

When faced with multiple claims brought by one party, only some
of which are capable of settlement by arbitration, the Australian
courts have approached this issue by staying court proceedings
only for those claims it considers capable of settlement by
arbitration (Hi- Fert Pty Limited and Cargill Fertilizer Inc v Kiukiang

16. Are there any legal requirements relating to the number

and qualifications/characteristics of arbitrators? Must an
arbitrator be a national of, or licensed to practice in, your
jurisdiction in order to serve as an arbitrator there?

Maritime Carriers Inc and Western Bulk Carriers (Australia) Limited

(1998) 159 ALR 142).

Arbitration in breach of a valid jurisdiction clause

Australian courts will order a stay of court proceedings commenced
in breach of a valid jurisdiction clause. Courts have also ordered a
stay of proceedings brought against third parties to a contract that
contained an exclusive jurisdiction clause, where those third parties
were closely connected with the implementation of the contract
(Global Partners Fund Ltd v Babcock and Brown Ltd (2010) 79
ACSR 383).
14. Will the local courts grant an injunction to restrain
proceedings started overseas in breach of an arbitration
agreement?
Australian courts will grant an injunction to restrain proceedings
started overseas in breach on an arbitration agreement. The
jurisdiction to order anti-suit injunctions restraining breach of an
arbitration agreement is part of Australian law as a result of the
High Court of Australia's decision in CSR Ltd v Cigna Insurance
Australia Ltd (1997) 189 CLR 345 at 392.

Joinder of third parties

15. In what circumstances can a third party be joined to an
arbitration or otherwise be bound by an arbitration award?
There is only a very limited ability to join third parties to an
arbitration. It is possible that exceptions may apply where the third
party has engaged in fraud, or where the third party is a company
related to the company bound by the arbitration agreement.
Additionally, section 24 of the International Arbitration Act 1974
(Cth) (IAA) gives a party to arbitral proceedings the ability to apply
to the tribunal for an order consolidating multiple arbitral
proceedings. This consolidation facilitates the inclusion of
additional parties.
Arbitral proceedings can be consolidated where:

A common question of law or fact arises in all those

proceedings.

The rights to relief claimed in all those proceedings are in

respect of, or arise out of, the same transaction or series of
transactions.

It is desirable that such an order be made for some other

reason.

A tribunal can make the following orders under section 24 of the

IAA in relation to two or more arbitral proceedings:

That the proceedings can be consolidated on terms specified in

the order.

That the proceedings be heard at the same time or in a

sequence specified in the order.

That any of the proceedings be stayed pending the

determination of any other of the proceedings.

Article 10 of the Model Law states that the parties are free to
determine the number of arbitrators. However, failing such
determination, the number of arbitrators will be three.
The Model Law does not prescribe certain qualifications or
characteristics an arbitrator must have. However, parties can agree
to the qualifications that an arbitrator must possess in order to
determine their dispute.
Under Article 12 of the Model Law, an arbitrator may be challenged
if he or she does not possess qualifications agreed to by the parties.
There is no legislative requirement that an arbitrator is a national
of or licensed to practice in Australia in order to serve as an
arbitrator in this jurisdiction.
Article 11(1) of the Model Law states that no person will be
precluded by reason of his or her nationality from acting as an
arbitrator, unless otherwise agreed by the parties.

Independence/impartiality
17. Are there any requirements relating to arbitrators'
independence and/or impartiality?
Arbitrators must be independent and impartial.
Article 12 of the Model Law requires a potential arbitrator to
disclose any circumstances likely to give rise to justifiable doubts as
to his or her impartiality or independence. An arbitrator, from the
time of his or her appointment and throughout the arbitral
proceedings, will without delay disclose any such circumstances to
the parties.
An arbitrator may be challenged only if circumstances exist that
give rise to justifiable doubts as to his or her impartiality or
independence. There are justifiable doubts as to the impartiality
and independence of an arbitrator only if there is a "real danger of
bias" on the part of the arbitrator conducting the arbitration
(section 18A(2), International Arbitration Act 1974 (Cth)). This test
provides a higher threshold than merely demonstrating a
reasonable apprehension of bias and instead requires that party to
demonstrate that there is a real danger that the arbitrator is
biased.
Article 18 of the Model Law requires the arbitrator to treat parties
equally. Each party in an arbitration must be given a full
opportunity to present its case.

Appointment/removal
18. Does the law contain default provisions relating to the
appointment and/or removal of arbitrators?

Appointment of arbitrators
Article 11 of the Model Law provides the procedure for appointing
arbitrators. It provides that the parties are free to agree on a
procedure of appointing an arbitrator. Failing such agreement, a
default appointment procedure is set out under the Model Law.
Under Article 11 of the Model Law, in an arbitration with three
arbitrators, each party must appoint one arbitrator, and the two
appointed arbitrators will then appoint the third arbitrator. If a

global.practicallaw.com/arbitration-guide

Country Q&A

requires the party making the stay application to do so no later

than when submitting the first statement on the substance of the
dispute.

Country Q&A

party fails to appoint an arbitrator within 30 days of receipt of a

request to do so from the other party, or if the two arbitrators fail to
agree on the third arbitrator within 30 days of their appointment,
the appointment will be made, on request of a party, by the
relevant arbitral institution (if any) or the Supreme Court of the
relevant State. In 2011, the Australian Government confirmed
Australian Centre for International Commercial Arbitration as the
sole default appointing authority competent to perform the
arbitrator appointment functions under the amended International
Arbitration Act 1974 (Cth) (regulation 4, International Arbitration
Regulations 2011 (Cth)).
In an arbitration with a sole arbitrator, if the parties are unable to
agree on the arbitrator, he or she will be appointed, on request of a
party, by the relevant arbitral institution or State Supreme Court.
If problems arise during the course of the appointment procedure,
a party may apply to the court to take the necessary measures. If an
application is made to the court to appoint an arbitrator, the court
must have regard to any qualifications required of the arbitrator by
the parties' agreement and any other considerations required to
secure the appointment of an independent and impartial
arbitrator.

Removal of arbitrators
Article 13 of the Model Law provides a procedure for challenging
arbitrators. It provides that the parties are free to agree on a
procedure for challenging an arbitrator.
Failing such agreement, a party who intends to challenge an
arbitrator must, within 15 days after becoming aware of the
constitution of the arbitral tribunal, or after becoming aware that
the arbitrator is not independent or impartial, or lacks the agreed
upon qualifications, send a written statement of the reasons for the
challenge to the arbitral tribunal. Unless the challenged arbitrator
withdraws from his or her office or the other party agrees to the
challenge, the arbitral tribunal will decide on the challenge.
If a challenge under any procedure agreed on by the parties or
under the procedure described above is not successful, the
challenging party may request, within 30 days of receiving notice of
the decision rejecting the challenge, that the court decide the
challenge. The court's decision is not subject to an appeal. While
such a request to a court is pending, the arbitral tribunal, including
the challenged arbitrator, may continue the arbitral proceedings
and make an award.

PROCEDURE
Commencement of arbitral proceedings
19. Does the law provide default rules governing the
commencement of arbitral proceedings?
Article 21 of the Model Law provides that, unless otherwise agreed,
arbitral proceedings commence on the date on which a request
that the dispute be referred to arbitration is received by the
respondent.
The procedure for commencing an arbitration generally depends
on the arbitration agreement. It is usually necessary to deliver a
notice of arbitration to commence the arbitration process. The
notice is served on the opposing party or parties.
The claimant party usually nominates an arbitrator or arbitral
tribunal in its notice of arbitration. It is good practice for a notice to
contain full names and addresses of the parties, a summary of the
nature and circumstances of the dispute, a statement of the relief
sought, and a copy of the arbitration agreement forming the basis
of the notice of arbitration.
If the place of arbitration has not already been determined in the
arbitration agreement, the claimant should also indicate its
preference in this regard.

global.practicallaw.com/arbitration-guide

Applicable rules
20. What procedural rules are arbitrators likely to follow? Can
the parties determine the procedural rules that apply? Does
the law provide any default rules governing procedure?

Applicable procedural rules

The procedural rules to be applied are often determined by
agreement of the parties or, failing such agreement, by the
arbitrator or arbitral tribunal in consultation with the parties.
The incorporation into the arbitration agreement of a set of ad hoc
or institutional arbitration rules is not essential, but may save time
and costs by providing a framework for conducting the arbitration.
An alternative is for the arbitration procedure to be fully set out in
the arbitration agreement.

Default rules
Article 19 of the Model Law provides that the parties are free to
agree on the procedure to be followed by the arbitral tribunal in
conducting the proceedings. Failing such agreement, the arbitral
tribunal may, subject to the provisions of the Model Law, conduct
the arbitration in such manner as it considers appropriate. The
power conferred on the arbitral tribunal includes the power to
determine the admissibility, relevance, materiality and weight of
any evidence.
The tribunal's power is subject to Article 18 of the Model Law that
states that each party will be treated with equality and each party
will be given a full opportunity of presenting its case. Article 24(1)
of the Model Law also provides that unless the parties have agreed
that no hearings will be held, the tribunal will hold hearings at an
appropriate stage of the proceedings, if requested by a party.
Article 24(3) of the Model Law also requires all statements,
documents, expert reports and other information supplied to the
arbitral tribunal by one party, are communicated to the other party.

Arbitrator's powers
21. What procedural powers does the arbitrator have under the
applicable law? If there is no express agreement, can the
arbitrator order disclosure of documents and attendance of
witnesses (factual or expert)?
The arbitral tribunal does not have the power to compel a party to
disclose documents; however, parties may apply to the court for a
subpoena.
Under section 23 of the International Arbitration Act 1974 (Cth)
(IAA), which is an additional provision to those contained in the
Model Law and applies to all arbitral proceedings unless the
parties agree otherwise, parties can apply to a court to issue a
subpoena to require a person to either or both:

Attend for examination before the arbitral tribunal.

Produce to the arbitral tribunal the documents specified in the

subpoena.

However, such an application can only be done with the permission

of the arbitral tribunal (section 23(2), IAA). The court must not
issue a subpoena to a person who is not a party to the arbitral
proceedings unless the court is satisfied that it is reasonable in all
the circumstances to do so (section 23(5), IAA).
A party to arbitral proceedings can apply to a court for orders under
section 23A of the IAA if a person:

Refuses or fails to attend before the tribunal for examination

when required to do as required by the arbitral tribunal or under
subpoena.

Refuses or fails to produce a document required by the arbitral

tribunal or under subpoena.

incorporation in the arbitration agreement, or by later agreement

once the arbitration has commenced.

Refuses or fails to take on oath or make an affirmation or

affidavit when appearing as a witness.

CONFIDENTIALITY

Refuses or fails to answer a question required by the tribunal to

be answered when appearing as a witness.

Refuses of fails to do any other thing required by the tribunal in

the performance of its functions.

23. Is arbitration confidential? If so, what is the scope of that

confidentiality and who is subject to the obligation (parties,
arbitrators, institutions and so on)?

In these circumstances the court can order the person to either

(section 23A(3), IAA):

Attend the court for examination.

Produce to the court the relevant documents or to do the

relevant thing.

However, a court must not make orders under section 23A(3) of the
IAA to a person who is a non-party to the arbitral proceedings
unless the person is given an opportunity to make representations
to the court and the court is satisfied that it is reasonable in all the
circumstances to make the order in relation to the person.
In addition, under Article 27 of the Model Law the arbitral tribunal
or a party with the approval of the arbitral tribunal can request
assistance from a court in taking evidence. The court may execute
the request according to its rules on taking evidence.

The 2010 amendments to the International Arbitration Act 1974

(Cth) (IAA) included specific provisions regarding confidentiality in
commercial arbitral proceedings conducted in Australia. However
the confidentiality provisions in sections 23C to 23G of the IAA are
opt-in provisions. That is, they will not automatically apply to
arbitral proceedings unless the parties expressly agree to include
them in writing.
The parties and the arbitral tribunal must not disclose confidential
information in relation to the arbitral proceedings unless (section
23C, IAA):

The consent of all of the parties to the arbitral proceedings is

obtained.

The information is disclosed to a professional or other adviser of

any of the parties to the arbitral proceedings.

The information is necessary to ensure that a party has a full

opportunity to present the party's case.

The information is necessary for the establishment or protection

of the legal rights of a party to the arbitral proceedings in
relation to a third party.

The information is necessary for the purpose of enforcing an

arbitral award.

The disclosure is in accordance with an order made or a

subpoena issued by a court (sections 23D and 23E, IAA).

EVIDENCE
22. What documents must the parties disclose to the other
parties and/or the arbitrator? How, in practice, does the
scope of disclosure in arbitrations compare with disclosure
in domestic court litigation? Can the parties set the rules on
disclosure by agreement?

Scope of disclosure
The parties are free to agree on the procedure to be followed by the
arbitral tribunal in conducting the proceedings (Article 19(1), Model
Law). Failing such agreement, the arbitral tribunal can conduct the
arbitration in any manner it considers appropriate including the
power to determine the relevance of any evidence.
Article 24(3) of the Model Law also requires that all statements,
documents, expert reports and other information supplied to the
arbitral tribunal by one party, are communicated to the other party.
In addition, a party can issue a subpoena under section 23 of the
International Arbitration Act 1974 (Cth) (IAA) requiring a person to
produce to the arbitral tribunal specific documents.
If the parties agree that sections 23C to 23G of the IAA will apply to
the arbitration on an opt-in basis, then there are additional
requirements specifying that the parties must not disclose
confidential information or documents save for specific cases.
Section 23E sets out circumstances in which an arbitral tribunal
may allow for disclosure of confidential information or documents.
Practically, disclosure in an arbitration in Australia tends to be
completed in a similar fashion to court litigation albeit usually on a
more limited basis and by reference to specific documents or
categories of documents and without the need for affidavits
verifying discovery. However, parties are free to have a disclosure
process that differs from court ordered disclosure and can expand
or limit the scope of disclosure, if they so choose.

Parties' choice
The parties can agree to the rules and scope of disclosure. This can
be included in the arbitration agreement. In practice, many parties
and arbitrators will apply or be guided by rules (the International

Bar Association Rules on the Taking of Evidence in International

Arbitration) for document disclosure either through express

Before the 2010 amendments to the IAA that are set out in sections
23C to 23G, the Australian courts had taken a fairly controversial
approach to the issue of confidentiality in arbitrations. The High
Court of Australia's decision in Esso Australia Resources Ltd v
Plowman (1995) 183 CLR 10 distinguished confidentiality from
privacy and held that there was no implied duty of confidentiality in
arbitration.
The issue for the High Court in that case was whether a third party
that was not a party to the arbitration proceedings was entitled to
discovery of information and documents concerning the arbitration.
The High Court held that there was no inherent duty of
confidentiality in arbitral proceedings, as confidentiality is not "an
essential attribute" of a private arbitration merely because these
proceedings are not open to the public. In spite of this finding, the
court acknowledged that the parties could agree that the
proceedings and documents produced should be kept confidential.
In response to the uncertainty created as a result of the Esso
decision, the 2010 amendments to the IAA included specific
provisions regarding confidentiality in arbitral proceedings.
However, these provisions will not automatically apply to arbitral
proceedings unless the parties expressly agree to include them in
writing.
The scope of the opt-in confidentiality provisions in the IAA is wide.
Section 15(1) of the IAA states that "confidential information"
means information that relates to the proceedings or to an award
made in the proceedings and includes:

The statement of claim, statement of defence, and all other

pleadings, submissions, statements, or other information
supplied to the arbitral tribunal by a party to the proceedings.

Any evidence (whether documentary or other) supplied to the

arbitral tribunal.

global.practicallaw.com/arbitration-guide

Country Q&A

Country Q&A

Any notes made by the arbitral tribunal of oral evidence or

submissions given before the arbitral tribunal.

Any transcript of oral evidence or submissions given before the

arbitral tribunal.

Any rulings of the arbitral tribunal.

Any award of the arbitral tribunal.

The confidentiality provisions contained in the IAA apply to parties

and the arbitral tribunal.

25. What is the risk of a local court intervening to frustrate an

arbitration seated in its jurisdiction? Can a party delay
proceedings by frequent court applications?

Risk of court intervention

Australian courts are generally considered to be pro-enforcement
of arbitral awards.

COURTS AND ARBITRATION

Where a court is considering intervening in an arbitration, section

39 of the International Arbitration Act 1974 (Cth) (IAA) requires the
court to have regard to both:

24. Will the local courts intervene to assist arbitration

proceedings seated in its jurisdiction?

The objects of the IAA, which include the facilitation of

international trade and commerce and the recognition and
enforcement of arbitral awards.

Courts are generally reluctant to intervene in arbitral proceedings

in Australia and will only do so when requested by a party or an
arbitral tribunal to do so, or in circumstances where they are
expressly granted the right to intervene as a matter of law. Article 5
of the Model Law provides that there is no scope for court
intervention in arbitral proceedings, except where expressly
provided for in the Model Law.

The fact that:

This overarching principle should be considered together with

section 39 of the International Arbitration Act 1974 (Cth) (IAA),
which specifies matters to which a court must have regard when
exercising its power in arbitration proceedings under relevant
sections of the IAA and Model Law. These matters include the fact
that arbitration is an efficient, impartial, enforceable and timely
method to resolve commercial disputes and that awards are
intended to provide certainty and finality.

As a result of the pro-arbitration stance of the Australian courts,

frequent court applications are unlikely to result in a successful
delay of arbitral proceedings. Further, indemnity costs may be
awarded against a party commencing court proceedings in breach
of a valid arbitration agreement (Pipeline Services WA Pty Ltd v
ATCO Gas Australia Pty Ltd [2014] WASC 10(S)).

The Federal Court of Australia, along with the State or Territory (as
applicable) Supreme Court of the place of arbitration, has the
power to (section 18(3), IAA):

26. What interim remedies are available from the tribunal?

Make a decision on challenges to arbitrators if requested

(Article 13(3), Model Law).

Decide on the termination of the mandate of an arbitrator

(Article 14, Model Law).

Rule on the jurisdiction of the arbitral tribunal by request

of a party where the tribunal has ruled on a plea as a
preliminary question (Article 16(3), Model Law);

Assist in taking of evidence (Article 27, Model Law).

Issue a subpoena in accordance with sections 23 and 23A of the

IAA.

Set aside an arbitral award (Article 34(2), Model Law).

The International Arbitration Regulations 2011 specify that the

Australian Centre for International Commercial Arbitration is a
prescribed authority (for the purposes of sections 18(1) and 18(2) of
the IAA) capable of determining disputes relating to the
appointment of arbitrators under Articles 11(3) and 11(4) of the
Model Law. The Federal Court of Australia and the Supreme Court
of Victoria have also adopted a practice of hearing disputes under
Articles 11(3) and 11(4) of the Model Law.

arbitration is an efficient, impartial, enforceable and timely

method by which to resolve commercial disputes; and

awards are intended to provide certainty and finality.

Delaying proceedings

REMEDIES

Interim measures
Article 17 of the Model Law provides that an arbitral tribunal can, at
the request of a party, grant interim measures in order to maintain
or preserve the status quo, take action to prevent imminent harm,
preserve assets or to preserve evidence.
A party requesting an interim measure must satisfy the arbitral
tribunal that both (Article 17A(1) , Model Law):

Interim measures are necessary to prevent harm that is not

adequately reparable by an award of damages and such harm
substantially outweighs the harm that is likely to result to the
party against whom the measure is directed if the measure is
granted.

There is a reasonable possibility that the requesting party will

succeed on the merits of the claim.

Grant interim measures of protection (section 7(3), IAA; Articles

8 and 17J, Model Law).

Pursuant to Article 17G of the Model Law, a party requesting an

interim measure will be liable for any costs and damages caused by
the measure if the tribunal later determines that the measure
should not have been granted.

Ex parte
Australia has expressly excluded the right under Article 17B of the
Model Law for parties to apply to an arbitral tribunal for ex parte
preliminary orders.
Section 18B of the International Arbitration Act 1974 (Cth) (IAA)
confirms that despite Article 17B of the Model Law, applications for
preliminary orders directing another party not to frustrate the
purpose of an interim measure requested are not available in
Australia.

global.practicallaw.com/arbitration-guide

Subject to any contrary provision in the arbitration agreement or

other written agreement between the parties, the arbitral tribunal
can at any time before the award is issued order a party to pay
security for costs (section 23K, IAA). This provision will apply to any
arbitral proceedings in Australia unless the parties expressly agree
that section 23K will not apply.

The subject matter of the dispute is not capable of being

arbitrated.

The award is contrary to public policy (for example, if the

making of the award was induced or affected by fraud or
corruption, or a breach of the rules of natural justice occurred in
connection with the making of the award (sections 8(7A) and 19,
IAA)). A breach of the rules of natural justice will only be
sufficient to deny recognition of the award where there is
"demonstrated real unfairness or real practical injustice" in how
the dispute was resolved (TCL Air Conditioner (Zhongshan) Co
Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83).

However, the tribunal must not make such an order solely on the
basis that the party (section 23K( 2), IAA):

Is not ordinarily a resident in Australia.

Is a corporation incorporated or an association formed under

the law of a foreign country.

Is a corporation or association with its central management or

control in a foreign country.

Excluding rights of appeal

The Model Law, including the grounds for setting aside an arbitral
award pursuant to Article 34(2), is mandatory for all international
arbitrations seated in Australia (section 21, IAA). There is no section
of the IAA that contemplates that a party can waive the right to
apply to set aside an award under Article 34(2) of the Model Law.

27. What final remedies are available from the tribunal?

In Australia, there is no statutory limitation in relation to what an
arbitral tribunal can award as a final remedy, unless the parties
agree, and there are no statutory time limits for the making of an
award.
Subject to any contrary provision in the arbitration agreement or
other written agreement between the parties, where an arbitral
tribunal makes an award for the payment of money, the tribunal
can direct the payment of pre and post-award interest (sections 25
and 26, International Arbitration Act 1974 ( Cth) (IAA)).

29. What is the limitations period applicable to actions to

vacate or challenge and international arbitration award
rendered?
An application to set aside an award must be made within three
months from the date of receipt of the award (Article 34(3), Model
Law).

COSTS

Again, subject to contrary agreement of the parties, the costs of the

arbitration including the fees and expenses of the arbitrator will be
in the discretion of the arbitral tribunal (section 27, IAA).

30. What legal fee structures can be used? Are fees fixed by
law?

APPEALS

Restrictions on permissible fee structures (for

contingency/conditional costs agreements) vary
jurisdictions in Australia.

28. Can arbitration proceedings and awards be appealed or

challenged in the local courts? What are the grounds and
procedure? Can parties waive any rights of appeal or
challenge to an award by agreement before the dispute
arises (such as in the arbitral clause itself)?

Rights of appeal/challenge
Article 34(2) of the Model Law provides limited grounds on which
an application can be brought to set aside an award.

Grounds and procedure

An application may be brought under Article 34 of the Model Law
in the Federal Court or in the Supreme Court of the State or
Territory that is the place of arbitration to set aside an international
arbitral award under section 18(3) of the International Arbitration
Act 1974 (Cth) (IAA). In accordance with Article 34 of the Model
Law, an arbitral award can be set aside only if:

A party to the arbitration agreement was under some

incapacity.

The arbitration agreement is not valid under the law to which

the parties have subjected it.

The party making the application was not given proper notice of
the appointment of an arbitrator or of the arbitral proceedings
or was otherwise unable to present their case.

example,
between

Given the different regime governing costs agreements in each

state and territory, it is advisable that a party seeks specific advice
in relation to the relevant jurisdiction that it intends to instruct
lawyers to act in the arbitral proceedings.
31. Does the unsuccessful party have to pay the successful
party's costs? How does the tribunal usually calculate any
costs award and what factors does it consider?

Cost allocation
Section 27 of the International Arbitration Act 1974 (Cth) (IAA)
provides that the costs of the arbitration, including the fees and
expenses of the arbitrator will be at the discretion of the arbitral
tribunal.
Section 27 is an opt out provision and automatically applies to an
arbitration unless the parties otherwise agree in their arbitration
agreement or otherwise in writing.

Cost calculation
The tribunal can (section 27, IAA):

Direct to whom and in what manner costs will be paid.

Tax or settle the amount of costs to be paid.

The award deals with matters outside the scope of the

arbitration agreement.

Award costs to be taxed or settled as between party and party

or as between solicitor and client.

The composition of the tribunal or the arbitral procedure was

not in accordance with the parties' agreement or the law of the
seat of the arbitration.

Limit the amount of costs that a party is to pay to a specified

amount.

global.practicallaw.com/arbitration-guide

Country Q&A

Security

Country Q&A

To the extent that costs are not taxed or settled by the arbitral
tribunal, costs are taxable in either the Federal Court or the
Supreme Court of the state or territory that was the place of
arbitration (sections 18(3) and 27(3), IAA).

Factors considered
Costs are in an arbitrator's discretion. However, the general
position in Australia is that costs follow the event and successful
parties will recover at least some portion of their costs.

ENFORCEMENT OF AN AWARD
Domestic awards
32. To what extent is an arbitration award made in your
jurisdiction enforceable in the local courts?
In Australia, awards made in an international arbitration seated in
Australia may be enforced on application to the Federal Court or a
State court pursuant to Article 35 of the Model Law as if the award
was a judgment of the court (Castel Electronics Pty Ltd v TCL Air

Conditioner (Zhongshan) Company Limited (2012) 201 FCR 209;

Rizhao Steel Holding Group Company Ltd v Koolan Iron Ore Pty Ltd
[2012] WASCA 50). Enforcement of an award made in an

34. To what extent is a foreign arbitration award enforceable?

Foreign international arbitral awards may be enforced on
application to the Federal Court or State or Territory courts
pursuant to section 8 of the International Arbitration Act 1974 (Cth)
(IAA) as if the award was a judgment or order of the court (sections
8(2) and (3), IAA).
Consistent with Article IV of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (New York Convention), a
party seeking recognition and enforcement of an arbitral award in
Australia must, at the time of the application, supply both (section
9, IAA):

The duly authenticated original award or a duly certified copy.

The original arbitration agreement under which the award was

made, or a duly certified copy.

However, in addition to these requirements, there is authority to

suggest that a party seeking to enforce an award in Australia must
also establish that the award debtor and creditor are parties to the
arbitration agreement: IMC Aviation Solutions Pty Ltd v Altain
Khuder LLC [2011] VSCA 248.

international arbitration seated in Australia can be resisted only on

the limited grounds set out in Article 36 of the Model Law, which
replicate those that apply for setting aside an award under Article
34(2) of the Model Law and also include a situation where the
award has not yet become binding on the parties or has been set
aside or suspended.

The courts may refuse to enforce a foreign award on the limited

grounds set out in sections 8(5) and 8(7) of the IAA (which replicate
the grounds under Article V of the New York Convention: sections
8(3A) and 20 IAA), which are as follows:

For purely domestic (non-international) arbitrations, applications

for enforcement can be made to the State or Territory Supreme
Courts pursuant to the relevant State's Commercial Arbitration Act.
Enforcement can only be resisted on the same limited grounds that
apply in regard to international arbitrations.

A party to the arbitration agreement was under some

incapacity.

The arbitration agreement is not valid under the law to which

the parties have subjected it.

The party making the application was not given proper notice of
the appointment of an arbitrator or of the arbitral proceedings
or was otherwise unable to present their case.

Foreign awards

The award deals with matters outside the scope of the

arbitration agreement.

33. Is your jurisdiction party to international treaties relating to

recognition and enforcement of foreign arbitration awards,
such as the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards 1958 (New York
Convention)?

The composition of the tribunal or the arbitral procedure was

not in accordance with the parties' agreement or the law of the
seat of the arbitration.

The award has not yet become binding on the parties or has
been set aside or suspended.

The subject matter of the dispute is not capable of being

arbitrated.

To enforce the award would be contrary to public policy.

A party applying for enforcement must supply the original award or

a copy of it to the court.

Australia acceded to the Convention on the Recognition and

Enforcement of Foreign Arbitral Awards (New York Convention) on
26 March 1975. The convention was ratified and implemented
without reservation into Australian law as Schedule 1 to the
International Arbitration Act 1974 (Cth) (IAA).
Although there are no formal reservations to the New York
Convention, sections 8(1) and 8(4) of the IAA differ from Article 35
of the Model Law in that they provide that a foreign award will only
be recognised and enforceable in Australia:

When the award was made in a New York Convention country.

If the award was not made in a New York Convention country,

when the party seeking enforcement is either domiciled or
ordinarily resident in Australia or another New York Convention
country.

Australia has also ratified the Washington Convention on the

Settlement of Investment Disputes Between States and Nationals
of Other States 1965.

global.practicallaw.com/arbitration-guide

35. What is the limitations period applicable to actions to

enforce international arbitration awards rendered outside
your jurisdiction?
Different limitation periods apply across the various states and
territories to actions to enforce an arbitral award and vary
depending on the form of the underlying arbitration agreement
(whether made by deed or otherwise).

an inter partes hearing of the application to set aside the award)

does not proceed.

36. How long do enforcement proceedings in the local court

take, from the date of filing the application to the date
when the first instance court makes its final order? Is there
an expedited procedure?
Australian courts have adopted a pro-enforcement attitude. Save,
and except for, when a party resists enforcement of an award, or
applies to set aside an award, enforcement can be a relatively quick
process.
The Federal Court, and the Supreme Courts of New South Wales,
Victoria and Western Australia, have dedicated arbitration lists to
encourage expedited enforcement of arbitral awards. Particularly:

In the Federal Court, all applications to enforce arbitral awards

will be referred to the Arbitration Coordinating Judge at the
particular registry in which the application is filed.

The court adopts a de facto two-step process: if the court is

satisfied to a prima facie level that there is an arbitral award
and an arbitration agreement, the award debtor must discharge
the onus that the award should not be enforced.

In New South Wales, all applications to enforce arbitral awards

are entered onto the Commercial Arbitration List. There is a
specified procedure for the party seeking enforcement to file
summaries of the facts and law, and for the award debtor to
respond within 14 days, so that the enforcement proceedings
can be heard and determined quickly.

In Victoria, a two-step process for enforcement of awards is

mandated. Applications for leave to enforce awards are made
ex parte, and if leave is granted, then an order is made to effect
the award as a judgment of the court, staying enforcement of
the judgment to allow the award debtor the opportunity to
apply to set aside that order (stage two). Unless an application
is made by the judgment debtor, then stage two (which involves

In Western Australia, all arbitration enforcement matters are

referred directly to a single judge of the Supreme Court
(currently the Chief Justice of Western Australia) with a view to
the enforcement proceedings being quickly resolved.

It is difficult to accurately assess how long enforcement

proceedings will take, given the differing approaches across
jurisdictions. However, in a recent decision of the Supreme Court of
Victoria, Giedo van der Garde BV & Giedo Gijsbertus Gerrit van der
Garde v Sauber Motorsport AG [2015] VSC 80, the Court, after
granting ex parte orders, heard the application to set aside the
award, which was refused, and the appeal from that decision,
which was also refused, in one week. This highlights the proenforcement attitude being adopted in this jurisdiction.

REFORM
37. Are any changes to the law currently under consideration or
being proposed?
The legal framework for arbitration has been recently reformed
with the harmonisation of the procedures for resolution of domestic
commercial disputes across the various Australian jurisdictions
with the procedures applicable for resolution of international
commercial disputes under the International Arbitration Act 1974
(Cth).
There is unlikely to be further significant amendment in the next
few years.
**The following HSF lawyers also contributed to this publication:

Edwina Kwan, Annie Leeks, Stewart McWilliam, Scott Ivey, Tim

Goyder, Sarah Slater, Erin Christlo and Jessica Ji.

MAIN ARBITRATION ORGANISATIONS

Australian Centre for International Commercial Arbitration (ACICA)
Main activities. ACICA supports and facilitates international arbitration in Australia. Appointment and administration body for all forms
of alternative dispute resolution. It provides model arbitration and mediation rules and model arbitration and mediation clauses. It offers
facilities to host parties to any ADR process. Administers international arbitrations under the ACICA Arbitration Rules incorporating the
Emergency Arbitrator Provisions (2011), the ACICA Expedited Arbitration Rules (2011) and ad hoc arbitrations. ACICA is the sole default
appointing authority competent to perform the arbitrator appointment functions under the International Arbitration Act 1974 (Cth).
W www.acica.org.au

LEADR & Institute of Arbitrators and Mediators Australia (LEADR & IAMA)
Main activities. LEADR & IAMA conducts arbitrations in accordance with its own arbitration rules, or other procedural rules agreed on
by parties. It assists organisations develop effective dispute resolution processes. It also provides rooms for hire in Sydney central
business district (CBD).
W www.leadriama.org

Chartered Institute of Arbitrators Australia (CIArb)

Main activities. CIArb provides education, training and accreditation for arbitrators, mediators and adjudicators. It acts as an
international centre for practitioners, policymakers, academics and businesspersons.
W www.ciarb.net.au

Australian Disputes Centre (ADC)

Main activities. ADC offers a range of ADR options to businesses, professionals, governments and communities. It provides rooms for
hire in Sydney CBD. It offers case management services and guidance on drafting ADR clauses. ADC also issues guidelines and rules to
provide a framework to govern the relevant dispute resolution process.
W https://disputescentre.com.au

global.practicallaw.com/arbitration-guide

Country Q&A

Length of enforcement proceedings

Country Q&A

ONLINE RESOURCES
ComLaw
W www.comlaw.gov.au
Description. ComLaw is the official source of primary and secondary legislation of the Commonwealth Government. It is maintained
regularly by the Office of Parliamentary Counsel.

Australasian Legal Information Institute (AustLII)

W www.austlii.edu.au
Description. AustLII is an unofficial compilation of judgments and legislation of the federal, state and territory courts of Australia. It is
maintained by the Faculties of Law at the University of Technology, Sydney and the University of New South Wales.

Practical Law Contributor profiles

Leon Chung, Partner

Elizabeth Macknay, Partner

Herbert Smith Freehills

Herbert Smith Freehills

Professional qualifications. Australia, Lawyer

Professional qualifications. Australia, Lawyer

Areas of practice. International arbitration and transnational

litigation; international investments and cross-border transactions;
corporate responsibility compliance including compliance with antiforeign corruption regimes and international sanction regimes.

Areas of practice. Mining and energy; international arbitration;

regulatory investigations and litigation; corporate crime and
investigations.

T
M
F
E
W

+61 2 9225 5716

+61 407 400 291
+61 2 9322 4000
leon.chung@hsf.com
www.hsf.com.com

T
M
E
W

+61 8 9211 7806

+61 409 367 672
elizabeth.macknay@hsf.com
www.hsf.com.com

Non-professional qualifications. Bachelor of Commerce and

Bachelor of Laws (Honours), University of Sydney

Non-professional qualifications. Bachelor of Arts degree in History

and Psychology, University of Western Australia; Bachelor of Laws
degree with honours, Murdoch University

Recent transactions

Recent transactions

Advising multinational trading houses and global resources

companies on investment risks when investing in overseas
jurisdictions including in emerging economies in Asia, Africa,
South America and Eastern Europe.

Advising in litigation and arbitration.

Advising Australian and international clients in the mining and

resources sectors.

Acting for Peabody, the world's largest private sector coal

company in arbitral proceedings.

Acting in multiple international arbitration and transnational

litigation proceedings.

Acting for a Swiss company with operations in the Philippines in

UNCITRAL arbitration proceedings in Singapore concerning
termination of a coal supply contract with an Indonesian
counterparty.

Advising and acting for major energy and resources companies

on foreign corruption practices and sanctions regimes including
responding to regulatory investigations and preparing
compliance programmes.

Acting for a railway owner in rail access arbitrations.

Acting for an ASX listed mining company in arbitration

proceedings commenced against it by a customer for alleged
breaches of its contractual obligations.

Acting for Mount Gibson Iron Limited in three significant

arbitration proceedings against customers who failed to take
delivery of iron ore during the GFC, which resulted in a
settlement and arbitral awards of US$25 million, US$23 million
and US$114 million respectively.

Languages. English
Professional associations/memberships. Director of
Australian Centre for International Commercial Arbitration.
Publications

Articles on international dispute resolution and international

contracting issues in The Australian Financial Review, Asian
Dispute Review Journal and Australian Construction Law
Newsletter.
International Joint Ventures, Before You Tie the Knot:
Commercial issues in joint venture law.

global.practicallaw.com/arbitration-guide

the

Languages. English
Professional associations/memberships. Member of the
Australian Institute of Company Directors, the Australian Mining
and Petroleum Law Association, Transparency International and
Australian Corporate Lawyers Association; trustee of the Committee
for Economic Development of Australia; elected member of the
Legal Practice Board of Western Australia since April 2009.

Country Q&A

Elizabeth Poulos, Partner

Herbert Smith Freehills
T
M
F
E
W

+61 7 3258 6575

+61 448 303 277
+61 7 3258 6666
elizabeth.poulos@hsf.com
www.hsf.com.com

Professional qualifications. Australia, Lawyer

Areas of practice. International arbitration; regulatory
investigations and litigation; constructions disputes and litigation.
Non-professional qualifications. Bachelor of Economics and
Bachelor of Laws (Honours), University of Sydney
Recent transactions

Advising and acting for a wide range of clients across a number

of industries, focussing on the mining, energy and resources,
infrastructure and banking and financial services industries.

Acting for a range of global mining and energy and resources

companies on disputes with contractors and joint venture
partners arising from various operations and projects.

Acting for and advising a range of major financial institutions on

disputes and investigations.

Acting in international arbitration proceedings.

Languages. English
Professional associations/memberships. Member
Queensland Chapter of Transparency International.

of

the

global.practicallaw.com/arbitration-guide