International Commercial Arbitration Sub-area NPA logo with link NPA logo with link

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:

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.

Practice Notes

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.

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:

Forms:
  • Form 50 - Originating application for order in terms of arbitration
  • Form 59 - Affidavit
Rules:
Notes
  • Must be accompanied by a copy of the arbitration agreement and a copy of the award
  • An application for an order in the terms of the award may be made without notice (ex parte)

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:

Forms:
  • Form 51 - Originating application for stay of a proceeding under the International Arbitration Act
  • Form 59 - Affidavit
Rules:
Notes
  • Must be accompanied by a copy of the arbitration agreement

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:

Forms:
  • Form 52 - Originating application to enforce a foreign award under the International Arbitration Act
  • Form 59 - Affidavit
Rules:
Notes
  • If registered, the award:
    • has the force and effect of an order of the Court
    • accrues interest
  • An application to register an award may be made without notice (ex parte)

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:

Forms:
  • Form 52 - Originating application to enforce a foreign award under the International Arbitration Act
  • Form 59 - Affidavit
Rules:
Notes
  • Must be accompanied by the following documents (refer to s 9 of the International Arbitration Act)
    • A duly authenticated award or duly certified copy
    • The original arbitration agreement under which the award purports to be made (or a duly certified copy)
  • If a document or part of a document is in a language other than English, a translation will be required, together with a certification that it is a correct translation.

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:

Forms:
  • Form 53 - Originating application for relief under Model Law
  • Form 59 - Affidavit
Rules:

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:

Forms:
  • If a arbitral proceeding has not been started: Form 56 - Originating application under s 23A of the International Arbitration Act together with a Form 59 - Affidavit
  • If a arbitral proceeding has been started: an Interlocutory application in that proceeding
Rules:

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)

by filing:

Forms:
  • If a arbitral proceeding has not been started: Form 57 - Originating application under s 23F or s 23G of the International Arbitration Act together with a Form 59 - Affidavit
  • If a arbitral proceeding has been started: an Interlocutory application in that proceeding
Rules:


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:

Forms:
  • Form 58 - Originating application to enforce an award under s 35(4) of the International Arbitration Act
  • Form 59 - Affidavit

Rules:

Note:

  • An application for enforcement of an award may be made without notice (ex parte)


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:

Forms:
  • Form 54 - Application for a subpoena under the International Arbitration Act
  • A draft subpoena in accordance with one of the following forms:
        • Form 55A - Subpoena to attend for examination
        • Form 55B - Subpoena to produce documents
        • Form 55C - Subpoena to attend for examination and produce documents

Rules:

Latest Judgments

  • 14 May 2020: Tianjin Jishengtai Investment Consulting Partnership Enterprise v Huang [2020] FCA 767
    ARBITRATION - application to enforce award made in People's Republic of China - where respondent alleged copies of arbitral agreement and award were not certified correctly -s 9(5) of the International Arbitration Act 1974 (Cth) - mere production of a document to the Court is receivable as prima facie evidence of the matters to which it relates -…
    Judge: Jagot J
  • 24 Feb 2020: Eiser Infrastructure Ltd v Kingdom of Spain [2020] FCA 157
    ARBITRATION - international arbitration - applications for recognition and enforcement of awards of the International Centre for Settlement of Investment Disputes (ICSID) under s 35(4) of the International Arbitration Act 1974 (Cth) PRIVATE INTERNATIONAL LAW - foreign state immunity - where foreign state respondent asserts sovereign immunity -… 142 ACSR 616
    Judge: Stewart J
  • 20 Feb 2020: Sharma v Military Ceramics Corporation [2020] FCA 216
    PRACTICE AND PROCEDURE - application to adjourn interlocutory application made informally immediately prior to hearing - delay - prejudice to parties, other litigants and administration of justice if application granted ARBITRATION - international commercial arbitration - application to set aside arbitral award under Art 34 of the UNCITRAL Model…
    Judge: Stewart J
  • 1 Aug 2019: Infrastructure Services Luxembourg S.A.R.L v Kingdom of Spain [2019] FCA 1220
    ARBITRATION - international arbitration - application for stay of proceeding for recognition and enforcement of award of a tribunal of the International Centre for Settlement of Investment Disputes (ICSID) under s 35(4) of the International Arbitration Act 1974 (Cth) - where there is an application for annulment of the award by ICSID - where…
    Judge: Stewart J
  • 4 Jul 2019: Sanum Investments Limited v ST Group Co., Ltd (No 2) [2019] FCA 1047
    PRACTICE AND PROCEDURE - whether valid service effected on the respondents who are resident in the Lao People's Democratic Republic in accordance with r 10.43 of the Federal Court Rules 2011 - whether the requirements for service in a non-signatory country to the Hague Convention established - whether a bilateral treaty governs the rules for…
    Judge: Foster J
  • 2 Oct 2018: Hyundai Engineering & Steel Industries Co Ltd v Two Ways Constructions Pty Ltd (No 2) [2018] FCA 1551
    ARBITRATION - international arbitration - where award creditor brought proceedings to enforce award obtained in Singapore - where award debtor sought to set aside the award in part in the High Court of the Republic of Singapore - where award debtor applied under s 8(8) of the International Arbitration Act 1974 (Cth) to adjourn award enforcement -…
    Judge: O'Callaghan J
  • 28 Sep 2018: Ye v Zeng (No 7) [2018] FCA 1478
    ARBITRATION - orders for the appointment of a receiver because obligations of payment were not fulfilled by award debtor subsequently set aside by agreement between parties - application to restore orders CONSUMER LAW - whether respondents engaged in misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law - whether oral…
    Judge: Lee J
  • 13 Sep 2018: Hyundai Engineering & Steel Industries Co Ltd v Two Ways Constructions Pty Ltd [2018] FCA 1427
    ARBITRATION - international arbitration - where award creditor brought proceedings to enforce award obtained in Singapore - where award debtor sought to set aside the award in part in the High Court of the Republic of Singapore - where award debtor applied under s 8(8) of the International Arbitration Act 1974 (Cth) to adjourn award enforcement -…
    Judge: O'Callaghan J
  • 13 Jul 2018: Hyundai Engineering & Steel Industries Co Ltd v Alfasi Steel Constructions (NSW) Pty Ltd [2018] FCA 1054
    ARBITRATION - international arbitration - where award creditor brought proceedings to enforce award obtained in Singapore - whether proceeding brought by award creditor to enforce foreign award should be adjourned - where award debtor seeks to set aside the award in part in the High Court of the Republic of Singapore - application of s 8(8) of the …
    Judge: O'Callaghan J
  • 15 Jun 2018: Dalian Huarui Heavy Industry International Co Ltd v Duro Felguera Australia Pty Ltd [2018] FCA 905
    COSTS - where leave granted to discontinue proceeding - dispute concerning costs - where respondent contends applicant should pay its costs - where Rule 26.12(7) of the Federal Court Rules 2011 (Cth) creates a presumption that the discontinuing party will pay the other party's costs unless good reason to the contrary shown - where presumptive rule …
    Judge: Barker J

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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.