Recognition and Enforcement of Foreign Arbitral Awards: The Application of the New York Convention by National Courts – National Report for Australia

Abstract

This National Report for Australia responds to a detailed questionnaire on “Recognition and Enforcement of Foreign Arbitral Awards” prepared by the General Reporter, Professor George Bermann, for the 19th International Congress of Comparative Law (Vienna, 20-27 July 2014). It covers implementation into Australian law of the 1958 New York Convention, enforcement by Australian courts of international arbitration agreements (pursuant to Article II of the Convention), grounds for refusing enforcement (Article V), and procedural issues.

By way of general assessment, this Report concludes that overall the Australian courts’ application of the Convention by way of the International Arbitration Act (IAA) has been reasonably successful and positive, especially in recent years. However, some judgments have been out of step with widely-accepted principles. Sometimes this problem has been exacerbated by poor legislative drafting. Broader difficulties also remain with the recent 2010 amendments to the IAA. It would be helpful to undertake some further amendments, and indeed to reform the Convention itself, in several respects. There also needs to be a more consistently internationalist interpretation and application of the Convention by both Australian courts and advocates arguing IAA cases.

Keywords: international arbitration, international law, comparative law, Commonwealth law, dispute resolution

JEL Classification: K10, K30, K33