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A.1       Legislation

International arbitration in Australia continues to be governed by the International Arbitration Act 1974 (Cth) (IAA), to which there have been no amendments in the past year.

A.2       Institutions, rules and infrastructure

Australia’s leading international arbitration institution, the Australian Centre for International Commercial Arbitration (ACICA), has introduced updated ACICA Rules 2021 (“Rules“) applicable to arbitrations commenced on or after 1 April 2021. The Rules were revised in the wake of reports of increasing numbers of international arbitrations in Australia[1] and where online arbitration hearings increased due to the COVID-19 pandemic. Key changes include the following:[2]

  • Express provisions permitting tribunals to conduct hearings and conferences virtually or in a hybrid fashion (partly virtual and partly in-person).[3]
  • Updating filing and notice requirements, permitting electronic filing through ACICA’s online system and electronic delivery of notices.[4]
  • Expanding tribunals’ powers to consolidate arbitrations, including by now permitting consolidation in any of the following circumstances:
    • By party agreement.
    • If all claims are under the arbitration agreement.
    • (New criteria) If there is a commonality of law, facts, or transactions and the arbitration agreements are compatible (e.g., where there are back-to-back contracting arrangements between a principal, a contractor, and subcontractors), even where under separate arbitration agreements with different parties.[5]
  • A new protocol for ACICA to decide on key factors for consolidation (such as the identity of the arbitrators after consolidation).[6]
  • Expanding tribunals’ express powers regarding joinder, permitting joinder (a) if the party to be joined is subject to the same arbitral agreement; or (b) (new criteria) if all parties expressly agree.[7]
  • Permitting a party to commence an arbitration (with a single Notice of Arbitration) for disputes under more than one contract, where the consolidation criteria are met and deeming there to be multiple arbitrations issued alongside an application to consolidate, with multiple arbitrations to continue if consolidation is not granted by the tribunal.[8]
  • Permitting tribunals to conduct related arbitrations either concurrently or consecutively where the same tribunal is constituted and there is a common legal or factual issue.[9]
  • Permitting tribunals to dismiss or terminate any claims, defenses or counterclaims at any time.[10]
  • Introducing a long-stop date for rendering Awards of 9 months after receipt of the file by the tribunal or 3 months after proceedings are declared closed (which ACICA can extend).[11]
  • Improving institutional supervision by ACICA, including through the following:
    • Improved disclosure of independence, availability, and impartiality issues by arbitrators to ACICA before appointment (previously party-appointed arbitrators would be appointed directly to the tribunal before objections were raised).[12]
    • ACICA involvement in tribunal decisions on costs deposits and decisions, requiring costs to be fixed before rendering of awards, making the default position that the losing party pays the arbitration costs and specifying what can be costs of the arbitration, including tribunal costs, ACICA fees, tribunal-appointed experts or assistants and parties’ reasonable legal costs (including in-house counsel and “dirty” experts).[13]
    • New data management and cybersecurity provisions.[14]
  • Introducing an ongoing requirement for parties to disclose third-party funding arrangements (which also links to arbitrator independence requirements).[15]
  • Bolstering requirements that the tribunal discusses alternative forms of dispute resolution with parties after commencement of the arbitration, including mediation.[16]

These updated Rules bring ACICA’s position on common issues (such as consolidation) in line with other international arbitral institutions and recognize common tribunal practices during the COVID-19 pandemic (such as virtual hearings and electronic notices). ACICA is also taking steps to improve gender diversity in the composition of arbitral tribunals, although it still lags some way behind other institutions such as the ICC and LCIA.[17]


B.1       Enforcement and recognition of awards

Australian courts continue to take an arbitration-friendly approach to applications to recognize and enforce foreign awards.

In EBJ21 v EB021,[18] the Federal Court of Australia (FCA) considered whether to recognize or enforce a confidential arbitral award in circumstances where the award had been paid on time and in full.

In that case, the parties had entered into a confidential deed of settlement, with payment due one month later. Immediately, and prior to the due date of payment, the applicant applied to the FCA to enforce the award sum. The respondent, who had paid the award sum before the deadline, claimed there was no entitlement to enforcement of an award that had already been satisfied. The applicants relied on article 36 of the UNCITRAL Model Law, which enumerates limited exceptions to enforcement of an arbitral award that does not include prior payment.

The court distinguished between enforcement and recognition of an award with reference to article 35 of the Model Law, confirming that, while enforcement can only occur on application to a competent court, most awards are recognized at law as binding between the parties from the date of award, and it was, therefore, unnecessary for the court to make an order for the agreed award to be recognized.

At the same time, with respect to enforcement, it would be pointless since, at the time the applicant commenced the proceedings, the pecuniary obligations of the award were not yet due and payable (so there were no rights or obligations to vindicate at that time) and, once the award had been paid, the pecuniary obligations were then discharged, so there was nothing left to enforce.

B.2       Enforcement of foreign awards and electronic counterparts

Section 9 of the IAA provides that both:

  • In any proceedings seeking to enforce a foreign award under Part II of the IAA, the applicant seeking enforcement must produce either a duly authenticated original or certified copy of the award (section 9(1)(a)) or the original arbitration agreement under which the award purports to have been made or a duly certified copy (section 9(1)(b))
  • Notwithstanding the above, an award or copy of an award or arbitral agreement may be deemed to be duly certified if it is certified by the arbitrator or arbitral tribunal or it has been otherwise authenticated to the satisfaction of the court (section 9(2))

In HongKong Henson Industrial Limited v Victorian Ferries Pty Ltd,[19] the applicant, HongKong, applied to the FCA to enforce an arbitral award of the Singapore International Arbitration Centre (SIAC) against the respondent, Victoria Ferries, a company with its principal place of business in Victoria, Australia. Neither party was in possession of a version of the agreement which contained the arbitration clause, which had been signed with the “wet-ink” signatures of both parties as the agreement had been signed electronically in counterparts. HongKong was also unable to locate a copy of its original counterpart.

The court observed that, despite being an electronic counterpart, the arbitration agreement could still be certified, in accordance with section 9(2) of the IAA, if either: (a) the full text of the arbitration agreement is contained in the arbitral award which had been certified by the arbitrator; or (b) affidavit evidence containing printouts of the electronic counterparts is provided with the deponent deposing to the counterparts being true copies of the original and the court held that the arbitration agreement was deemed to have been certified, in accordance with section 9(2), once HongKong provided that affidavit evidence.

This decision provides useful insight and guidance on the operation of section 9 of the IAA, particularly in light of the COVID-19 pandemic, which may impact the ability to execute an agreement. by “wet-ink”.

B.3       Enforcement of foreign awards under the New York Convention

In the 2021 Yearbook, we reported that, in Energy City Qatar Holding Company v Hub Street Equipment Pty Ltd (No 2),[20] the FCA had enforced an arbitral award under the New York Convention as a judgment of the court in accordance with section 8(3) of the IAA.

Energy City had paid Hub, an Australian company, over AUD 800,000 as advance payment under a contract but later decided not to proceed and demanded repayment. Hub retained the money for four years. The contract provided that disputes be referred to arbitration under the rules of arbitration of Qatar.

Without prior notice, ECQ bypassed the contracted tribunal nomination procedure and applied to a Qatari Court to appoint a three-member arbitration panel, which it did. Hub did not participate in the arbitration despite six notices of the arbitration being issued to Hub in English. The arbitral tribunal issued an award, in Arabic, in Energy City’s favor, and Energy City then applied to the FCA for enforcement of the award in accordance with section 8(3) of the IAA, with the court, at first instance, ultimately exercising its residual discretion under section 8(5) of the IAA to enforce the award despite the irregularities with the arbitral procedures.

In the lead judgment for the Full Court on appeal, Stewart J found that the award should not be enforced in Australia because the arbitral tribunal had not been composed in accordance with the parties’ agreement and that, while some irregularities were immaterial (such as the use of Arabic, where translations were provided), there was no scope to exercise the discretion to enforce because the failure to constitute the arbitral tribunal in the agreed manner was fundamental to the jurisdiction of the arbitrators.

This decision emphasizes the importance of ensuring the appointment and composition of the arbitral tribunal is compliant with the arbitration agreement.

B.4       Stay of proceedings – construction of arbitration clauses and non-contractual claims

Both the Queensland Court of Appeal’s decision in Cheshire Contractors Pty Ltd v Civil Mining & Construction Pty Ltd,[21] and the first instance decision[22] are useful reminders that arbitration clauses will be construed in accordance with the general principles of contractual construction; interpreted in the broader context of the contract as a whole. They also illustrate the approach courts will take to determining whether claims based on causes of action outside of the contract (e.g., claims based on equity or statute) will be subject to an arbitration agreement between the parties.

The dispute arose out of an agreement for Cheshire to carry out roadworks for a civil engineering project conducted by Civil Mining. Cheshire alleged it was owed money in connection with work performed. The agreement contained a tiered purported arbitration clause that stated that if “disputes or differences arising between the parties” could not be resolved by negotiation or mediation, the disputes or differences should be referred to arbitration.

Having unsuccessfully attempted mediation, Cheshire initiated proceedings in the Queensland Supreme Court instead of pursuing arbitration. Civil Mining then sought a stay and referral to arbitration, ostensibly pursuant to the arbitration clause. In response, Cheshire argued that the agreement had been drafted so broadly as to be unenforceable and, also, that both:

  • Because the unqualified wording of the arbitration clause failed to define the “disputes or differences” by reference to the contract, the clause did not meet the statutory definition[23] of an agreement “in respect of a defined legal relationship” so as to constitute an arbitration agreement
  • Because Cheshire sought orders for estoppel by convention and damages under the Australian Consumer Law (ACL), its claims concerned rights arising outside of the contract which was not subject to the contract’s arbitration clause

Rejecting the first argument, the Court of Appeal (adopting the reasoning of Henry J at first instance), held that the following:

  • The scope of the arbitration clause was informed by its context within the contract, from which it could be inferred that the words “disputes or differences” referred to those arising from the defined legal relationship created by the contract
  • Consistent with a long line of authority, the requirement for an arbitration agreement to be in respect of a defined legal relationship is not to be narrowly construed (indeed, the relationship need not be recorded in a contract, document, or by any formal means)
  • The requirement, in the Commercial Arbitration Act 2013 (Qld), that a defined legal relationship must exist between the parties in order for an arbitration agreement to be valid merely required that a defined legal relationship exist between the parties and did not require the arbitration agreement itself to define the legal relationship

In respect of the second argument, which was not challenged on appeal, Henry J at first instance held that, because the claims involved a dispute about payments under the contract, there was a “sufficiently close and consequential connection” to the contract and, therefore, the ancillary estoppel and ACL claims were captured by an arbitration clause.

B.5       Stay of enforcement on a judgment sum pending an arbitral award

The Queensland Court of Appeal’s decision in Bothar Boring and Tunnelling (Australia) Pty Ltd v Ausipile Pty Ltd[24] considers circumstances in which the enforcement of an order of the court in litigation may be stayed pending the delivery of a separate pending arbitral award and demonstrates that a court may use its discretion to stay enforcement of a judgment sum where the creditor entity has engaged in commercial restructuring which may mean it is unable to pay an arbitral award.

In this case, arbitration of a contract dispute instigated by Bothar was already underway before Ausiplile commenced court proceedings. The sum claimed by Bothar in the arbitration was significantly larger than what became the judgment sum awarded to Ausipile in the court proceedings, and Bothar sought a stay of enforcement of the judgment sum until delivery of the arbitral award.

The Court of Appeal held that both:

  • A stay may be granted by exercising the discretion afforded under rule 800 of the Uniform Civil Procedure Rules 1999 (Qld) but only where the stay was justified in all of the circumstances
  • A stay of enforcement was justified in this instance (upon condition that Bothar pay the court judgment sum into court by way of security), primarily because evidence suggested that Ausipile may have restructured its financial affairs, post-contract, in a way that would diminish its capacity to meet its liabilities under the contract

B.6       Application to set aside arbitral decisions

Two recent cases consider the court’s power to set aside arbitral awards and decisions and serve as a reminder that, while courts are generally pro-arbitration in Australia and will not ordinarily countenance attempts to reopen the merits of a decision, arbitrators must also take care not to exceed their mandate from the parties.

In Chevron Australia Pty Ltd v CBI Constructors Pty Ltd[25] , the Western Australian Supreme Court (WASC) set aside an arbitral award, made in a domestic arbitration concerning the interpretation of contractual provisions requiring Chevron to reimburse a joint venture (JV) for the JV’s employment of labor, on the basis that the tribunal had exceeded the authority granted to it by the parties.

The tribunal had bifurcated proceedings into liability and quantum. After the liability hearing, the tribunal made an interim award on liability and then turned to quantum. Chevron objected to the JV’s submissions on quantum on the basis that they sought to reopen liability issues when the first hearing had already addressed “all issues of liability” and argued the tribunal was now functus officio (effectively at the end of its power) in relation to liability issues. The tribunal rejected Chevron’s challenge to its jurisdiction and issued a further interim award. Chevron applied to the WASC to set aside the further interim award under section 34(2)(a)(iii) of the Commercial Arbitration Act 2012 (WA), which is the equivalent of article 34(2)(a)(iii) of the UNCITRAL Model Law.

The WASC found that the parties’ agreement to arbitrate provided that “[a]ny [d]ispute shall be exclusively and finally settled as set forth hereafter” and held that the joint venture’s “quantum” submission was, in fact, and substance, a pleading on liability made after liability had already been decided and that, since all issues of liability were to have been resolved in the first interim award, the tribunal had exceeded the authority granted to it by the parties when it again purported to deal with liability issues. A “multiple bites at the cherry” approach could not be accepted.

This case highlights the importance of the concept of finality to the arbitral process and that “interim” awards are still to be treated as final and binding on parties and the tribunal.

In Venetian Nominees Pty Ltd v Weatherford Australia Pty Ltd[26] , the WASC dismissed an application to set aside an arbitral award on the basis of alleged procedural unfairness.

The arbitral award concerned a lease dispute in which the lessee claimed that the lessor had incorrectly apportioned costs by expanding what could be included in the “lettable area” of the premises. The arbitrator found in favor of the lessee, and an award was issued requiring the lessor to repay amounts to the lessee.

The lessor sought to set aside the award under section 34(2)(a)(jj) and (iv) of the Commercial Arbitration Act 2012 (WA), arguing (a) that it was “unable to present its case” (essentially, procedural unfairness)[27] and (b) that the award was made “on the basis of an arbitral procedure not in accordance with the Arbitration Agreement.”

The WASC found that the lessor had been afforded the opportunity to engage in each aspect of the controversy, prompting the court to describe the lessor’s claim of procedural unfairness as “truly breathtaking in its audacity” and “a poorly disguised attempted appeal raised against a decision reached against it” and to hold that the lessor’s failure to adduce adequate evidence on a key matter was “not a process grievance…just a badly run case.”

The authors would like to thank Dave Sima, Khushaal Vyas, Georgina Barnes, Helena Brunker, Thomson Edgar and Jonathan Georgiadis for their assistance in the preparation of this chapter.



[3].Rules articles 25.3, 25.4 and 35.5

[4] Rules articles 4, 6 and 7

[5] Rules art 16; note the new provisions will only apply to arbitration agreements entered into after 1 April 2021


[7] Rules art 17; note the new provisions will only apply to arbitration agreements entered into after 1 April 2021

[8] Rules art 18

[9] Rules art 19

[10] Rules art 25.7

[11] Rules art 39.3

[12] Rules articles 12-13

[13] Rules articles 48-51

[14] Rules articles 26.6

[15] Rules articles 54

[16] Rules articles 25.3, 55


[18] (2021) 395 ALR 310; [2021] FCA 1406

[19] [2021] FCA 1450

[20] [2020] FCA 1116

[21] [2021] QCA 212

[22] [2021] QSC 75

[23] See Commercial Arbitration Act 2013 (Qld) section 7(1)

[24] [2021] QCA 226

[25] [2021] WASC 323

[26] [2021] WASC 137

[27] Ibid [36]


Mark Chapple is a Partner of the Dispute Resolution and Insolvency practices at Baker & McKenzie Sydney. He is the former National Managing Partner of Baker & McKenzie's Australian offices. Until late 2005, Mark was head of Baker & McKenzie's Australian and Asia Pacific dispute resolution and insolvency practices. Mark remains one of Australia's leading insolvency and disputes lawyers and has represented many major Australian and international corporations in complex commercial litigation for the past 25 years (including AMP, Andersen, EDS and Zurich Insurance) and has also played a lead role in most of Australia's major insolvencies over the same period. Mark Chapple can be reached at and + 61 2 8922 5227.


Jayme-Lyn Hendriks is a senior associate in Baker McKenzie's Sydney Dispute Resolution group. She can be reached at and + 61 2 8922 5622.


Charlotte Hendriks is a member of the Dispute Resolution team in the Sydney office of Baker & McKenzie where she focuses on commercial litigation and international arbitration. Charlotte’s experience includes acting for large domestic and international clients in commercial disputes across various jurisdictions within Australia, particularly in the Federal Court and the NSW Supreme Court. Charlotte also has experience acting for clients in domestic and international arbitrations conducted under the ICC, LCIA, UNCITRAL and ICSID arbitration rules. Charlotte can be reached at and +61 2 8922 5170.