An applicant seeking enforcement of a foreign arbitral award under the International Arbitration Act 1974 (Cth) must discharge a prima facie evidentiary onus that the award debtor is a party to the arbitration agreement; mere production of the award and agreement under s 9(1) is insufficient where the award debtor is not named on the face of those documents. The enforcing court is not bound by findings of the arbitral tribunal or foreign courts on the question of party identity and may consider questions of foreign law independently. A party denying it is a party to an arbitration agreement is not obliged to participate in the arbitration or challenge the award in the supervisory jurisdiction, and failure to do so does not give rise to an estoppel. The Hong Kong approach of awarding indemnity costs as a matter of course against unsuccessful parties resisting enforcement of arbitral awards does not apply in Australia; ordinary costs principles apply.
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