Australia: International Arbitration Update: Significant developments post-2010 amendments

In this publication we provide a brief update on recent developments in international arbitration in Australia, revealing how the 2010 amendments to the international arbitration regime in Australia are already leading to lower costs and less court intervention for international arbitration. For more information and in-depth analysis of each issue covered, see here.

  1. The Australian Centre for International Commercial Arbitration (ACICA) has become the authority able to appoint arbitrators where other agreed mechanisms fail.
  2. The enforcement of a Mongolian arbitration award by the Victorian Supreme Court evidences a move in Australia for minimal intervention and review by a court in enforcement proceedings.
  3. Indemnity costs may now be awarded as a matter of course where a party seeks to oppose the enforcement of an arbitral award.
  4. The enforcement of a Ugandan award in the Federal Court of Australia has highlighted that even poorly drafted arbitration agreements can still lead to enforceable awards in Australia.

ACICA becomes the appointing authority

On 2 March 2011, the International Arbitration Regulations 2011 (Cth) (Regulations) came into force, prescribing ACICA as the sole competent authority to perform the functions set out in arts 11(3) and 11(4) of the UNCITRAL Model Law on International Commercial Arbitration (Model Law).

The effect of the Regulations is that where:

  1. a party fails to appoint an arbitrator
  2. the parties cannot agree on the appointment of an arbitrator
  3. the party-appointed arbitrators cannot agree on the appointment of a third arbitrator, or
  4. an arbitral institution fails to appoint an arbitrator as required

a party to an arbitration in Australia can apply to ACICA (instead of a court) to appoint the arbitrator. This avoids the costs and delays associated with court applications.

More details on ACICA, the Model Law and the ability to appeal from a decision of ACICA can be found here.

Enforcement of a Mongolian award

On 28 January 2011, the Supreme Court of Victoria (Croft J) enforced a Mongolian award under the new regime provided in s 8 of the International Arbitration Act 1974 (Cth) (IAA). In doing so, the Court (Altain Khuder LLC v IMC Mining Inc [2011] VSC 1) covered a number of topical, complex and controversial issues on the application of the New York Convention.
In summary, Croft J held:

  1. A party seeking to enforce an award does not need to prove that the award or arbitration agreement is binding or valid; all they need to do is comply with the procedural requirements in the IAA and the relevant court rules.
  2. A party who seeks to resist the enforcement of an arbitral award bears a "very heavy burden" in doing so and must present "clear, cogent and strict proof" that one of the grounds for refusing enforcement of an award found in the New York Convention (as enacted in Australia by s 8 of the IAA) applies.
  3. The proper law of the contract is not necessarily the proper law of the arbitration agreement. It is therefore important to identify the law of the arbitration agreement, as this law governs the validity of the arbitration agreement, including the jurisdiction of the arbitral tribunal.
  4. The decision of the United Kingdom Supreme Court in Dallah Real Estate & Tourism Holding Co v Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46 should not be read as allowing a court in an enforcement proceeding to re-open and re-litigate most issues already raised before and dealt with by the tribunal.
  5. Where the courts of the seat of arbitration have verified an award and a party has had sufficient opportunity to argue the tribunal lacked jurisdiction both before the tribunal and the courts of the seat of arbitration, an estoppel will ordinarily arise preventing that party from arguing the tribunal lacked jurisdiction before a court seeking to enforce the award.

The decision has been appealed to the Victorian Court of Appeal.

An analysis of Croft J's reasoning on each point summarised above, together with the practical implications of his Honour's decision, can be found here.

Indemnity costs awarded against party resisting enforcement of foreign arbitral award

Following the decision on the enforcement of the Mongolian award, Croft J awarded costs on an indemnity basis against the party resisting enforcement (Altain Khuder LLC v IMC Mining Inc (No 2) [2011] VSC 12).

Should other courts within Australia follow his Honour's decision, a party seeking enforcement of an award in Australia has the potential to recover all its costs in doing so, not just party/party costs.

Conversely, parties seeking to resist enforcement of an arbitral award in Australia should only do so in circumstances where they have a good case for refusing enforcement. Otherwise, they may be subject to a significant costs order awarded against them on top of any award enforced by the court.

Further details on this decision and its implications can be found here.

Federal Court enforces Ugandan award

Having been conferred with the relevant jurisdiction under the recent amendments to the IAA, the Federal Court (Foster J) has recently enforced a Ugandan award (Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd [2011] FCA 131). The important points to come from this case are:

  1. The enforcement of an award will only be contrary to public policy where it "would violate the forum state's most basic notions of morality and justice".
  2. Arbitration agreements that contain no details other than certain disputes must be submitted to arbitration will not be void for uncertainty if the law of the seat of arbitration "fills the gaps" on details required for an effective arbitration (eg, procedure for appointment of arbitrators, place of arbitration, rules of arbitration etc).

The effect of the decision of Foster J is to highlight the importance of choosing an appropriate seat of arbitration. Although no substitute for a properly drafted arbitration agreement, it is important to ensure that the arbitration laws of the chosen seat of arbitration adequately deal with and protect the procedures and mechanisms of arbitration that are necessary for an efficient, timely and cost-effective resolution of the dispute.

A more detailed overview of the reasons of Foster J can be found here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.