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The award

Requirements
What legal requirements are there for recognition of an award? Must reasons be given for the award? Does the award need to be reviewed by any other body?

The requirements for the recognition of an award are as follows (Article 31 of the UNCITRAL Model Law):

  • The award must be made in writing.
  • The award must be signed by each member of the tribunal, whether it be a sole arbitrator or three arbitrators (or at least by the majority if it is a majority decision).
  • The award must state the reasons on which it is based, unless the parties have agreed that no reasons need to be given.
  • The award must state the date and place of arbitration (the award will be deemed to be made in the place of arbitration).
  • A copy of the award must be provided to each party.

The award will not be reviewed by any other body unless it is an International Chamber of Commerce or Singapore International Arbitration Centre arbitration.

Timeframe for delivery
Are there any time limits on delivery of the award?

No time limits apply to the delivery of the award under the International Arbitration Act 1974 (Cth) (including the UNCITRAL Model Law) or the new Australian Centre for International Commercial Arbitration (ACICA) Rules.

There are time limits for issuing an award in an arbitration under the ACICA Expedited Arbitration Rules. Those rules provide that arbitral tribunals must issue awards within four months of their appointment or five months if there is a counterclaim (Article 27 of the ACICA Expedited Arbitration Rules). 

Remedies
Does the law impose limits on the available remedies? Are some remedies not enforceable by the court?

There are no limits on the remedies that may be ordered by an arbitral tribunal. 

What interim measures are available? Will local courts issue interim measures pending constitution of the tribunal?

Arbitral tribunals have the power to order interim measures to (Article 17 of the UNCITRAL Model Law):

  • maintain or restore the status quo pending the determination of the dispute;
  • take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process;
  • provide a means of preserving assets out of which a subsequent award may be satisfied; or
  • preserve evidence that may be relevant and material to the resolution of the dispute.

There are conditions that must be satisfied before a tribunal will issue an interim measure (Article 17A of the UNCITRAL Model Law).

The new Australian Centre for International Commercial Arbitration Rules also provide that tribunals have the power to award interim measures (Article 33).

The Australian courts have the power to order interim measures in support of an arbitration seated in or outside Australia (Article 9 and 17J of the UNCITRAL Model Law). 

Interest
Can interest be awarded?

Arbitral tribunals have the power to order pre-award interest and post-award interest, unless the parties have agreed otherwise (Sections 25 and 26 of the International Arbitration Act, respectively). Section 25 does not specify whether simple or compound interest may be awarded for pre-award interest. Section 26 expressly states that tribunals may order simple or compound interest for post-award interest.

At what rate?

Section 25 (pre-award interest) and Section 26 (post-award interest) of the International Arbitration Act 1974 (Cth) provide that arbitral tribunals may order interest at a "reasonable rate". 

Finality
Is the award final and binding?

Yes.

What if there are any mistakes?

The arbitral tribunal may correct or provide an interpretation of an award in limited circumstances (Article 33 of the UNCITRAL Model Law). For example, the tribunal may correct clerical or typographical errors. It may also give an interpretation of a specific point or part of the award. Any requests for corrections or interpretations must be made within 30 days of receipt of the award.   

Can the parties exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

The International Arbitration Act 1974 (Cth) does not provide for a right of appeal. The only recourse available is an application to set aside or annual the award. 

Appeal
What is the procedure for challenging awards?

Awards can be challenged by submitting an application to the relevant court within three months of the date that the award was received by the parties (Article 34(3) of the UNCITRAL Model Law).  

On what grounds can parties appeal an award?

Parties cannot appeal an award issued in an international arbitration. However, the parties may apply to the relevant Australian court (the Federal Court or the Supreme Court in the state of the seat of the arbitration) for the award to be set aside or annulled (Article 34 of the UNCITRAL Model Law). An arbitral award may be set aside on limited procedural grounds or if it conflicts with public policy. In domestic arbitration, the parties may agree that the award can be appealed on a point of law. The court must grant leave for the appeal. Specifically, an award may be set aside if:

  • a party to the arbitration agreement was under some incapacity or the agreement was invalid under the applicable law;
  • the party making the application was not given proper notice of the appointment of an arbitrator or the arbitral proceedings or otherwise unable to present its case;
  • it deals with a dispute not submitted to arbitration or matters beyond the arbitration;
  • the composition of the tribunal or the procedure was not in accordance with the agreement of the parties;
  • the subject matter of the dispute was not arbitrable; or 
  • it conflicts with Australian public policy. 

Enforcement
What steps can be taken to enforce the award if there is a failure to comply?

The successful party may apply to the court for an order in the same terms as the award (Section 8 of the International Arbitration Act 1974 (Cth) and Article 35 of the UNCITRAL Model Law). This order is enforceable as a court judgment using the ordinary measures available under Australian laws.

Can awards be enforced in local courts?

Yes, pursuant to Section 8 of the International Arbitration Act.

How enforceable is the award internationally?

Arbitral awards made in Australia are enforceable:

  • under the New York Convention where it is in force;
  • under the Geneva Convention where countries are party to the Geneva Convention and not the New York Convention;
  • under the International Convention for the Settlement of Investment Disputes; and
  • under a country’s domestic law, if available, where that country is not a party to the New York Convention or Geneva Convention.

To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

Foreign states and their agencies are generally entitled to immunity from the jurisdiction of the courts of other countries. Foreign states are granted immunity from jurisdiction in Australian courts under the Foreign States Immunities Act 1985 (Cth). Exceptions to this immunity include cases involving commercial transactions, contracts of employment, personal injury and possession and use of property.

Foreign states and their agencies may be considered to have waived immunity from jurisdiction by agreeing to arbitration. However, it may still be possible to raise immunity on enforcement. Again, there are exceptions for immunity on enforcement for commercial assets. This means that an award may be enforced against commercial assets. 

Are there any other bases on which an award may be challenged, and if so, by what?

Section 8(5) of the International Arbitration Act 1974 (Cth) sets out the circumstances in which the court may refuse to enforce an arbitral award. The circumstances generally reflect those set out in Article 36 of the UNCITRAL Model Law and Article V of the New York Convention. These circumstances include where:

  • a party to the arbitration agreement was under some incapacity at the time the agreement was made;
  • the arbitration agreement is invalid;
  • a party was not given proper notice of the arbitration or was otherwise unable to present its case;
  • the award deals with matters outside the scope of the arbitration agreement;
  • the composition of the arbitral tribunal was not in accordance with the agreement; and
  • the award is not yet binding on the parties.

How enforceable are foreign arbitral awards in your jurisdiction?

The successful party may apply to the court for an order in the same terms as the award (Section 8 of the International Arbitration Act 1974 (Cth) and Article 35 of the UNCITRAL Model Law). This order is enforceable as a court judgment using the ordinary measures available under Australian laws.

Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

Under Section 8(5)(f) of the International Arbitration Act, a court may refuse to enforce an arbitral award that has been set aside by the competent authority of another county.

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