International Arbitration Act 1974

Sections 1, 2 and 3 shall come into operation on the day on which this Act receives the Royal Assent.

The remaining provisions of this Act shall come into operation on a date to be fixed by Proclamation, being a date not earlier than the date on which the Convention enters into force for Australia.

the continued operation of section 9 of the Sea‑Carriage of Goods Act 1924 under subsection 20(2) of the Carriage of Goods by Sea Act 1991; or

the operation of section 11 or 16 of the Carriage of Goods by Sea Act 1991.

to facilitate international trade and commerce by encouraging the use of arbitration as a method of resolving disputes; and

to facilitate the use of arbitration agreements made in relation to international trade and commerce; and

to facilitate the recognition and enforcement of arbitral awards made in relation to international trade and commerce; and

to give effect to Australia’s obligations under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in 1958 by the United Nations Conference on International Commercial Arbitration at its twenty‑fourth meeting; and

to give effect to the UNCITRAL Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985 and amended by the United Nations Commission on International Trade Law on 7 July 2006; and

to give effect to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States signed by Australia on 24 March 1975.

In this Part, unless the contrary intention appears:

In this Part, where the context so admits, enforcement, in relation to a foreign award, includes the recognition of the award as binding for any purpose, and enforce and enforced have corresponding meanings.

For the purposes of this Part, a body corporate shall be taken to be ordinarily resident in a country if, and only if, it is incorporated or has its principal place of business in that country.

For the avoidance of doubt and without limiting subsection (1), an agreement is in writing if:

its content is recorded in any form whether or not the agreement or the contract to which it relates has been concluded orally, by conduct, or by other means; or

it is contained in an electronic communication and the information in that communication is accessible so as to be usable for subsequent reference; or

it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.

For the avoidance of doubt and without limiting subsection (1), 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.

Where:

the procedure in relation to arbitration under an arbitration agreement is governed, whether by virtue of the express terms of the agreement or otherwise, by the law of a Convention country;

the procedure in relation to arbitration under an arbitration agreement is governed, whether by virtue of the express terms of the agreement or otherwise, by the law of a country not being Australia or a Convention country, and a party to the agreement is Australia or a State or a person who was, at the time when the agreement was made, domiciled or ordinarily resident in Australia;

a party to an arbitration agreement is the Government of a Convention country or of part of a Convention country or the Government of a territory of a Convention country, being a territory to which the Convention extends; or

a party to an arbitration agreement is a person who was, at the time when the agreement was made, domiciled or ordinarily resident in a country that is a Convention country;

Subject to this Part, where:

proceedings instituted by a party to an arbitration agreement to which this section applies against another party to the agreement are pending in a court; and

the proceedings involve the determination of a matter that, in pursuance of the agreement, is capable of settlement by arbitration;

Where a court makes an order under subsection (2), it may, for the purpose of preserving the rights of the parties, make such interim or supplementary orders as it thinks fit in relation to any property that is the subject of the matter to which the first‑mentioned order relates.

For the purposes of subsections (2) and (3), a reference to a party includes a reference to a person claiming through or under a party.

A court shall not make an order under subsection (2) if the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed.

Subject to this Part, a foreign award is binding by virtue of this Act for all purposes on the parties to the award.

Subject to this Part, a foreign award may be enforced in a court of a State or Territory as if the award were a judgment or order of that court.

Subject to this Part, a foreign award may be enforced in the Federal Court of Australia as if the award were a judgment or order of that court.

For the enforcement of a foreign award against a foreign State, or a separate entity of a foreign State, see the Foreign States Immunities Act 1985.

The court may only refuse to enforce the foreign award in the circumstances mentioned in subsections (5) and (7).

Subject to subsection (6), in any proceedings in which the enforcement of a foreign award by virtue of this Part is sought, the court may, at the request of the party against whom it is invoked, refuse to enforce the award if that party proves to the satisfaction of the court that:

a party to the arbitration agreement in pursuance of which the award was made was, under the law applicable to him or her, under some incapacity at the time when the agreement was made; or

the arbitration agreement is not valid under the law expressed in the agreement to be applicable to it or, where no law is so expressed to be applicable, under the law of the country where the award was made; or

that party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his or her case in the arbitration proceedings; or

the 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; or

the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

the award has not yet become binding on the parties to the award or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made.

Where an award to which paragraph (5)(d) applies contains decisions on matters submitted to arbitration and those decisions can be separated from decisions on matters not so submitted, that part of the award which contains decisions on matters so submitted may be enforced.

In any proceedings in which the enforcement of a foreign award by virtue of this Part is sought, the court may refuse to enforce the award if it finds that:

the subject matter of the difference between the parties to the award is not capable of settlement by arbitration under the laws in force in the State or Territory in which the court is sitting; or

to enforce the award would be contrary to public policy.

To avoid doubt and without limiting paragraph (7)(b), the enforcement of a foreign award would be contrary to public policy 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.

Where, in any proceedings in which the enforcement of a foreign award by virtue of this Part is sought, the court is satisfied that an application for the setting aside or suspension of the award has been made to a competent authority of the country in which, or under the law of which, the award was made, the court may, if it considers it proper to do so, adjourn the proceedings, or so much of the proceedings as relates to the award, as the case may be, and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.

A court may, if satisfied of any of the matters mentioned in subsection (10), make an order for one or more of the following:

for proceedings that have been adjourned, or that part of the proceedings that has been adjourned, under subsection (8) to be resumed;

for costs against the person who made the application for the setting aside or suspension of the foreign award;

for any other order appropriate in the circumstances.

The matters are:

the application for the setting aside or suspension of the award is not being pursued in good faith; and

the application for the setting aside or suspension of the award is not being pursued with reasonable diligence; and

the application for the setting aside or suspension of the award has been withdrawn or dismissed; and

the continued adjournment of the proceedings is, for any reason, not justified.

An order under subsection (9) may only be made on the application of a party to the proceedings that have, or a part of which has, been adjourned.

In any proceedings in which a person seeks the enforcement of a foreign award by virtue of this Part, he or she shall produce to the court:

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.

For the purposes of subsection (1), an award shall be deemed to have been duly authenticated, and a copy of an award or agreement shall be deemed to have been duly certified, if:

it purports to have been authenticated or certified, as the case may be, by the arbitrator or, where the arbitrator is a tribunal, by an officer of that tribunal, and it has not been shown to the court that it was not in fact so authenticated or certified; or

it has been otherwise authenticated or certified to the satisfaction of the court.

If a document or part of a document produced under subsection (1) is written in a language other than English, there shall be produced with the document a translation, in the English language, of the document or that part, as the case may be, certified to be a correct translation.

For the purposes of subsection (3), a translation shall 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.

A document produced to a court in accordance with this section is, upon mere production, receivable by the court as prima facie evidence of the matters to which it relates.

For the purposes of this Part, a certificate purporting to be signed by the Secretary of the Foreign Affairs Department and stating that a country specified in the certificate is, or was at a time so specified, a Convention country is, upon mere production, receivable in any proceedings as prima facie evidence of that fact.

For the purposes of this Part, a copy of the Gazette containing a Proclamation fixing a date under subsection 2(2) is, upon mere production, receivable in any proceedings as prima facie evidence of:

the fact that Australia has acceded to the Convention; and

the fact that the Convention entered into force for Australia on or before the date so fixed.

The Secretary may, either generally or as otherwise provided by the instrument of delegation, in writing, delegate to the person occupying a specified office in the Foreign Affairs Department and Trade all or any of the Secretary’s powers under subsection 10(1).

A power delegated under subsection (1) shall, when exercised by the delegate, be deemed to have been exercised by the Secretary.

The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Secretary.

The delegation of a power under subsection (1) does not prevent the exercise of the power by the Secretary.

In this section, Secretary means the Secretary of the Foreign Affairs Department and Trade.