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

  • 11 Mar 2022: Viterra BV v Shandong Ruyi Technology Group Co Ltd [2022] 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 [2022] 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 [2022] 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) [2022] 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 [2021] 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) [2021] 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 [2021] 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 [2021] 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 [2021] 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) [2021] FCAFC 119
    COSTS - consent orders - appropriate form of order
    Judge: Allsop CJ, Middleton and Stewart JJ

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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.