“What the Opposing Party Might be Thinking – A Comparative Discussion of Arbitration Practice in Asia and North America”

Location: San Fransisco

Date: 8 March 2012

Time:

4:30 pm – 6:30 pm – Panel

6:30 pm-8:00 pm – ICC Reception

Speakers:

Grant Kim, Morrison & Foerster LLP, San Fransisco

Elodie Dulac, King & Spalding LLP, Singapore

Dan Tan, Dan Tan Law, New York

Spencer Jones, O’Melveny & Myers LLP, Singapore

Register by March 1st 2012. See the ICC YAF brochure for details.

A recent decision of the Federal Court of Australia has highlighted an alarming proposition – Parliament seems to have forgotten to confer Australian courts with jurisdiction to enforce international arbitral awards made in Australia (or, for that matter, foreign awards not covered by the New York Convention).

In the decision of Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd [2012] FCA 21 (link here), Murphy J found the Federal Court did have jurisdiction to enforce such awards, but only by working through a series of Commonwealth Acts to finally find a power.  His Honour also seemed to struggle to find a statutory provision which the court how it was to enforce the award (eg, as if it were an order of the Court?  By attachment?  By specific performance?), eventually turning to a provision that seems to deal with court-ordered arbitration.

Australia has implemented a comprehensive regime for enforcing foreign awards to which the New York Convention applies in s 8 of its International Arbitration Act 1974 (Cth).  That section expressly confers power on the Federal Court and State and Territory Supreme Courts to enforce foreign awards as if they were orders of the Court, and provides the narrow exceptions to enforcement found in the New York Convention.  That section only covers foreign awards, however, and only foreign awards which are covered by the New York Convention.

For all other “international” awards, the International Arbitration Act 1974 (Cth) merely gives the force of law to the UNCITRAL Model Law on International Commercial Arbitration (as amended in 2006).  The Act also specifies that certain courts or bodies are to exercise certain functions provided for under the Model Law (eg, ACICA is to appoint arbitrators under art 11 of the Model Law, the Federal Court / State Supreme Courts exercise most of the other functions referred to in art 6).  But no particular authority is expressly conferred with the power to enforce awards in accordance with arts 35 and 36 of the Model Law.  Those articles don’t refer to “the court” nor are they referred to in art 6 of the Model Law, which specifies which court is to exercise certain functions.  Instead, arts 35 and 36 refer only to “a competent court” being required to enforce awards.  The articles also neglect to specify the manner by which such a court will enforce an award.

It seems the Model Law, like the New York Convention, leaves the question of which body will enforce awards and how enforcement will be achieved up to the individual State.  Australia, however, has not provided such detail in enacting the Model Law like it had done previously when giving effect to the New York Convention.  Compare too with Singapore’s International Arbitration Act, which expressly confers the High Court with power to enforce an award and provides the manner by which the award is enforced (see s 19).

For now, the Federal Court has resolved the issue by finding it does have jurisdiction to enforce awards in accordance with arts 35 and 36 of the Model Law, but only by relying on powers given to it under other Commonwealth Acts.  It may be that similar provisions confer State Courts with the same power, or the State Commercial Arbitration Acts would give States courts such a power instead.  The latter possibility is made harder since some of the States have adopted new domestic arbitration legislation which expressly does not apply when the Model Law applies.

Do you think arts 35 and 36 of the Model Law are enough to confer a Court with jurisdiction to enforce awards, or must the relevant State enact their own laws specifying which Court has power and the manner by which awards are to be enforced?  Do you think this potential gap in Australia’s arbitration regime will damage its push to become a seat for international arbitrations?

1 – Access to Arbitration, Are We Going in the Right Direction?

2 – Alternatives to ICSID

Moderated by Jan Paulsson and Stephen M. Schwebel

Location: Miami

Date: 26 February 2012

See the attached program and registration details  for more information

Date: 8-10 March 2012

Register by 10 February 2012 for the early bird rates

See the ICC Asia-Pacific Brochure 1.26.12 for more information

A formal invitation will be circulated in due course.

In the meantime, we encourage any members wishing to submit questions for discussion at the symposium to e-mail dimity.maybury@nortonrose.com