The enforcement of foreign arbitral awards in Australia against non-signatories to the arbitration agreement

Abstract

A party that obtains an award in an overseas-seated arbitration may seek enforcement by an Australian court under the International Arbitration Act 1974 (Cth). However, Australian case law is somewhat inconsistent in terms of judicial support for arbitration and there is a perception that Australian courts have inadequately fulfilled Australia’s obligations under the New York Convention by interpreting the arbitral law in an interventionist rather than supportive way. There is particular uncertainty surrounding the enforcement of foreign awards against non-signatories to the arbitration agreement. Much of this uncertainty stems from linguistic differences between the enforcement provisions of the International Arbitration Act and the equivalent provisions in other prominent jurisdictions. This article compares the recent practice of Australian courts regarding the enforcement of foreign arbitral awards against non-signatories to the arbitration agreement with the theoretical framework set out in the New York Convention and with the decisions of courts in England, Singapore and Hong Kong. It argues that amendments to the International Arbitration Act are required to bring Australia’s enforcement provisions into line with international practice and Australia’s obligations under the New York Convention. Australian International Arbitration Act (1974) English Arbitration Act (1996) Singapore International Arbitration Act (as amended in 2012) Hong Kong Arbitration Ordinance (2014) (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), arts III, IV, V IMC Aviation Solutions Pty Ltd v Altain Khuder LLC, Victorian Court of Appeal (Australia) (2011) Dampskibsselskabet Norden A/S v Beach Building & Civil Group Pty Ltd, Federal Court of Australia (2012) Dardana Ltd v Yukos Oil Co, English Court of Appeal (2002) Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan, UK Supreme Court (2011) Aloe Vera of America Inc v Asianic Food (S) Pte Ltd and Another, High Court of Singapore (2006) Paklito Investment Ltd v Klockner East Asia Ltd, Supreme Court of Hong Kong (1993) Hebei Import & Export Corp v Polytek Engineering Co Ltd, Court of Final Appeal of the Hong Kong Special Administrative Region (1999)