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Australian Courts continue to take an arbitration friendly approach to applications to recognise and enforce foreign awards.

In EBJ21 v EB021,[1] the Federal Court of Australia (“FCA”) considered whether to recognise or enforce a confidential arbitral award in circumstances where the award had been paid on time and in full.

Factual Background

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 an award that had already been satisfied.

The applicants relied on Art 36 of the UNCITRAL Model Law, which enumerates limited exceptions to enforcement of an arbitral award which does not include prior payment.

The Decision of the Federal Court of Australia

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 recognised at law as binding between the parties from the date of award and it was therefore, unnecessary for the Court to make any order for the agreed award to be recognised.

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.

[1] (2021) 395 ALR 310; [2021] FCA 1406.


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.


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.


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.