Legal issues of general application

Government permission

What government approvals are required for typical project finance transactions? What fees and other charges apply?

No specific government approval is required for typical project financing arrangements, including loans and remittances. Approval may be required to take certain types of security, for example security over mining tenements.

However, there is government regulation of common project finance areas such as infrastructure, transport, aviation, water and electricity. Federal, state and territory governments may be involved, and the requirements can be complex. Planning, environmental, health and safety, and native title laws will all apply. Further, approval is required to take an interest in some assets. Government approval is required for private acquisitions of critical infrastructure.

Registration of financing

Must any of the financing or project documents be registered or filed with any government authority or otherwise comply with legal formalities to be valid or enforceable?

There is no need for registration of project documents other than the registration of security interests as described in question 2. Government authorities will need to approve any contract where the government is a counterparty, or any licence granted by the government where taking security requires consent. There is no need for documents to be notarised or apostilled.

Arbitration awards

How are international arbitration contractual provisions and awards recognised by local courts? Is the jurisdiction a member of the ICSID Convention or other prominent dispute resolution conventions? Are any types of disputes not arbitrable? Are any types of disputes subject to automatic domestic arbitration?

Arbitral awards are, subject to the usual grounds for challenge, generally enforceable in Australia, regardless of the country in which they are made. Australia is a member of the ICSID Convention and the New York Convention, and the UNCITRAL Model Law has effect in Australia. If a foreign award meets the conditions of the New York Convention and the Model Law, Australian courts will generally enforce it. However, some matters are non-arbitrable as a matter of public policy. Bankruptcy and insolvency matters, some intellectual property, insurance contracts, and competition law are generally non-arbitrable. All Australian states have a version of the Model Law, creating a uniform framework for domestic arbitration. No statutory provisions require automatic domestic arbitration.

Australia has a well-developed and tried and tested legislative framework that supports the enforceability of arbitral awards produced through arbitration. The Australian Centre for Commercial Arbitration rules are in line with international best practice.

Law governing agreements

Which jurisdiction’s law typically governs project agreements? Which jurisdiction’s law typically governs financing agreements? Which matters are governed by domestic law?

Project agreements and financing agreements are typically governed by Australian law. Occasionally, financing agreements for projects are governed by foreign law, usually English or New York law. Security agreements generally are governed by domestic law regardless of the choice of law for the financing facility.

Submission to foreign jurisdiction

Is a submission to a foreign jurisdiction and a waiver of immunity effective and enforceable?

Australian courts generally will give effect to the submission by parties to a foreign law contract to the jurisdiction of the courts of that governing jurisdiction unless there are public policy reasons not to do so. The Australian courts will draw a distinction between exclusive and non-exclusive jurisdiction so it is prudent to draft any jurisdiction clause clearly. Also, certain Australian statutes may allow actions in respect of contractual arrangements where the jurisdiction of Australian courts is prescribed.

Foreign state immunity is codified in Australia in the Foreign States Immunities Act 1985 (Cth). Such immunity may be waived by agreement and any such agreement will be generally effective and enforceable.