Commercial Arbitration Sub-area
About this Sub-Area
Matters arising under the International Arbitration Act 1974 (Cth) fall within the 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 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 the Commercial Arbitration Practice Note (CA-1)
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:
- 22 Jun 2023:
Guoao Holding Group Co Ltd v Xue (No 3)  FCA 689
PRACTICE AND PROCCEDURE - release of security for costs - where applicant provided security for respondents' costs - where applicant successful with substantial judgment - where applicant brings contempt application for alleged breach of freezing orders by first respondent - where any future costs order made in the first respondent's favour in the …
Judge: Stewart J
- 16 May 2023:
CC/Devas (Mauritius) Ltd. v Republic of India (No 2)  FCA 527
PRACTICE AND PROCEDURE - ex parte application for substitution of parties - power to make an order for substitution, and not merely joinder and removal - order for substitution must serve a useful purpose - valid succession to rights or liabilities is a condition precedent to substitution - substitution order made PRIVATE INTERNATIONAL LAW -…
Judge: Jackman J
- 22 Dec 2022:
Guoao Holding Group Co Ltd v Xue (No 2)  FCA 1584
ARBITRATION - international commercial arbitration - application to enforce foreign award under s 8(3) of the International Arbitration Act 1974 (Cth) - opposition to enforcement under s 8(7)(b) - whether to enforce award would produce such manifest unfairness and imbalance of remedy that to do so would be contrary to public policy - whether…
Judge: Stewart J
- 23 Nov 2022:
Guoao Holding Group Co., Ltd v Xue  FCA 1431
PRACTICE AND PROCEDURE - international commercial arbitration - enforcement of award - application to vacate hearing date
Judge: Stewart J
- 30 Aug 2022:
Siemens WLL v BIC Contracting LLC  FCA 1029
ARBITRATION - application for enforcement of foreign arbitral award under s 8(3) of the International Arbitration Act 1974 (Cth) - where award debtor has not appeared - sufficiency of evidence of duly authenticated original award and original arbitration agreement - where awards transmitted by email only - where awards for sums are in foreign…
Judge: Stewart J
- 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… 291 FCR 640
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 … 291 FCR 240
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
- 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.