Recognition of foreign arbitral award - International Arbitration Act 1974 (Cth) - section 8 - service effected, but not required - default of appearance by respondent - Federal Court Rules (Cth) - rules 5.22, 5.23 and 28.44(3)
An application to enforce a foreign arbitral award does not need to be served on the other party. If the other party does not appear, the court can still make an order for enforcement.
Ultrapetrol SA (applicant) brought an originating application to establish its entitlement to enforce a foreign arbitral award against Jindal Steel & Power (Mauritius) Ltd (respondent) under the International Arbitration Act 1974 (Cth) (IAA).
Although not required by rule 28.44(3) of the Federal Court Rules (Cth) (FCR), the application was served on the respondent. Notwithstanding that service had been effected, the respondent did not appear.
Dowsett J found that:
- service was not required; or
- the non-appearance formed the basis for an order by default.
His Honour considered that an application to enforce a foreign arbitral award could be made without notice because of the requirement contained in section 8(3) of the IAA 'that any such award be enforced in the Federal Court as if it were a judgment or order of this Court'. Further, enforcement of the award could only be resisted by the respondent for one of the reasons set out in section 8(5) of the IAA.
Also, in Dowsett J's view, the respondent's non-appearance was a default pursuant to rule 5.22 of the FCR and formed the basis for an order by default in accordance with rule 523.
Dowsett J declared that the applicant was entitled to have the award recognised by the Federal Court and to enforce the award as if it were a judgment of the court.