International Commercial Arbitration Sub-area
About this Sub-Area
Matters arising under the International Arbitration Act 1974 (Cth) fall within the International Commercial Arbitration Sub-area, and include matters such as:
- applications to stay a Federal Court proceeding that is capable of settlement by arbitration pursuant to an arbitration agreement between the parties
- the enforcement of a foreign award under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards
- applications under article 6 of the UNCITRAL Model Law on International Commercial Arbitration (Model Law) for orders concerning:
- the appointment and termination of an arbitrator
- a challenge against an arbitrator for lack of impartiality, independence or the necessary qualifications
- whether an arbitral tribunal has jurisdiction to deal with the issues before the tribunal
- assisting an arbitral tribunal to take evidence
- the setting aside of an arbitral award
- the enforcement of an award under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States.
Proceedings concerning international commercial arbitration will generally be managed within the International Commercial Arbitration Sub-area of the Commercial and Corporations National Practice Area (NPA). However, depending on the character of the case, such proceedings may be managed within the Admiralty and Maritime NPA.
International commercial arbitration cases will be overseen and managed by National and Registry Co-ordinating Judges to ensure they are dealt with expeditiously and consistently by the Court nationally.
A dedicated group of Judges with special expertise in international commercial arbitration will be allocated these matters.
All practice notes are to be read with the Central Practice Note. It is the essential guide to practice in the Federal Court in all proceedings.
Central Practice Note (CPN-1)
The NPA practice note sets out the arrangements for the management of Commercial and Corporations proceedings in this Sub-area:
|NPA Practice Note:|
NOTE: refer also to Schedule 3 of the practice note – International Commercial Arbitration Sub-area
Other practice notes which may be relevant to this Sub-area include:
|NPA Practice Notes:|| |
|General Practice Notes:|| |
Forms, Rules & Fees
Filing fees for commencing a proceeding in this Sub-area may apply. Information about Court fees, including the fees payable and circumstances where an exemption or deferral can be given is available in Forms, Fees & Costs or from the Registry.
International arbitration under the Federal Court Rules
Division 28.5 of the Federal Court Rules 2011 (Cth) deals with international arbitration related matters under the International Arbitration Act. Under this Division, parties may apply to the Court for an order to stay an arbitration, enforce a foreign award, obtain relief under various provisions in the Model Law and obtain the issue of subpoenas and other processes in aid of an arbitration.
Division 28.5 of the Rules prescribes the procedure and forms for particular applications under the International Arbitration Act.
International arbitration applications
Relevant information about certain types of international arbitration applications, including relevant forms to file, is set out below.
1. Originating application for an order in terms of an arbitration award
A person may commence a proceeding by filing:
2. Originating application for stay of a proceeding
A party to an arbitration agreement can apply to the Court for an order under s 7 of the International Arbitration Act to stay the whole or part of a proceeding by filing:
3. Application for registration
Where a proceeding has been referred to arbitration (under rule 28.02) and an award has been made, a party may apply to the Court to register the award by filing:
4. Originating application to enforce a foreign award
A person can apply to the Court to enforce a foreign award under s 8(3) of the International Arbitration Act by filing:
5. Origination application for relief under Model Law
A party seeking relief under one of the following Articles of the UNCITRAL Model Law (set out in Schedule 2 to the International Arbitration Act may commence a proceeding by filing:
6. Originating application under s 23A of the International Arbitration Act
Where a party to arbitral proceedings commenced in reliance on an arbitration agreement fails or refuses to assist the arbitral tribunal in a manner described in s 23A(1) of the International Arbitration Act, the party can apply to the Court for an order pursuant to s 23A(3) of the International Arbitration Act, by filing:
7. Originating application under s 23F or s 23G of the International Arbitration Act
Subject to the pre-requisites to making this type of application set out in s 23F and s 23G of the International Arbitration Act, a party may apply for an order either:
- Prohibiting a party to arbitral proceedings from disclosing confidential information in relation to the proceedings (s 23F)
- allowing a party to arbitral proceedings to disclose confidential information in relation to the arbitral proceedings (s 23G)
8. Originating application to enforce an award
An award may be enforced in the Federal Court, with the leave of the Court, as if the award were a order of the Federal Court by filing:
9. Subpoena application under the International Arbitration Act
A party to an arbitral proceeding who wants the Court to issue a subpoena under s 23(3) of the International Arbitration Act must file:
- 11 Mar 2022:
Viterra BV v Shandong Ruyi Technology Group Co Ltd  FCA 215
PRACTICE AND PROCEDURE - freezing orders - application to discharge freezing order - where freezing order made against a third party with Australian assets - where third party is the wholly owned Singapore-incorporated subsidiary of the China-incorporated arbitral award debtor - where proceedings to enforce arbitral award commenced in Singapore…
Judge: Stewart J
- 1 Mar 2022:
Mountain View Productions LLC v Keri Lee Charters Pty Ltd  FCA 161
ARBITRATION - international commercial arbitration - application for issue of subpoenas under s 23(3) of the International Arbitration Act 1974 (Cth) - role of the arbitral tribunal in giving permission - relevant considerations for the Court - the Court's approach to the permission granted by the arbitral tribunal
Judge: Stewart J
- 4 Feb 2022:
Instagram Inc v Dialogue Consulting Pty Ltd  FCAFC 7
ARBITRATION - international commercial arbitration - appeal from refusal to stay proceeding in favour of arbitration under s 7 of the International Arbitration Act 1974 - where respondents filed stay application one year after proceeding was instituted - whether right to arbitration was waived - whether the primary judge's discretion miscarried in …
Judge: Jagot, Lee and Stewart JJ
- 27 Jan 2022:
HongKong Henson Industrial Limited v Victorian Ferries Pty Ltd (No 2)  FCA 29
COSTS - order made for enforcement of arbitral award - where costs ordered to be assessed on a lump sum basis - application of established principles
Judge: Colvin J
- 18 Nov 2021:
HongKong Henson Industrial Limited v Victorian Ferries Pty Ltd  FCA 1450
ARBITRATION - application to enforce foreign arbitral award made in Singapore as judgment of Court - where arbitration agreement contained in contract executed by parties by electronically exchanging printed and scanned versions of agreement which were signed and sealed - where applicant unable to produce original version or certified copy of…
Judge: Colvin J
- 15 Nov 2021:
LLC BryanskAgrostroy v Mackies Asia Pacific Pty Limited (No 2)  FCA 1419
COSTS - assessment of costs in application where applicant successful - whether appropriate to assess lump sum costs on indemnity basis - where respondent refused formal offers - where application not opposed by respondent after indicating it intended to defend application - whether fees reasonable in amount and reasonably incurred
Judge: Colvin J
- 12 Nov 2021:
EBJ21 v EBO21  FCA 1406
ARBITRATION - international arbitration - recognition of an award under the UNCITRAL Model Law - where the pecuniary obligations in the award have been paid - where there is no dispute about the validity or efficacy of the award - whether Art 35 of the Model Law requires orders recognising the award when no Art 36 ground is established - whether… 395 ALR 310
Judge: Stewart J
- 29 Sep 2021:
LLC BryanskAgrostroy v Mackies Asia Pacific Pty Limited  FCA 1180
ARBITRATION - application to enforce foreign arbitral award made in Russian Federation as judgment of Court - where dispute between parties referred to arbitration pursuant to arbitration agreement in contract - where arbitrators made award in favour of applicant - where no payment made by respondent in respect of award - whether requirements of s …
Judge: Colvin J
- 13 Aug 2021:
CC/DEVAS (Mauritius) Ltd v Republic of India  FCA 975
ARBITRATION - international arbitration - where applicants seek to enforce an award under s 8(3) of the International Arbitration Act 1974 (Cth) - where respondent is a foreign State - where respondent appeared conditionally to require service and claim immunity under the Foreign States Immunities Act 1985 (Cth) - where applicants now apply for…
Judge: Stewart J
- 29 Jun 2021:
Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company (No 2)  FCAFC 119
COSTS - consent orders - appropriate form of order
Judge: Allsop CJ, Middleton and Stewart JJ
- Convention on the Recognition and Enforcement of Foreign Arbitral Awards
- UNCITRAL Model Law on International Commercial Arbitration
- Convention on the Settlement of Investment Disputes between States and Nationals of Other States
- Australian Centre for International Arbitration
- Australian Maritime and Transport Arbitration Commission – an ACICA Commission
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Important note: This information is procedural advice only. You should seek your own legal advice about legal cases and procedure in the Federal Court and in this area of law.