Most Read Contributor in Australia, September 2016
The High Court has unanimously upheld the constitutional
validity of legislation conferring jurisdiction on the Federal
Court to enforce international arbitration awards in Australia.*
The tragedy is that the challenge was brought at all.
TCL, the plaintiff, sought to argue, having already agreed to
resolve its dispute by arbitration and being in receipt of an
unfavourable award, that the Federal Court could not properly be
vested with jurisdiction to enforce the award. TCL submitted that
this jurisdiction was incompatible with Chapter III of the
Such an argument is contrary to the very foundation of
international arbitration, being the consensual agreement of the
parties to resolve their dispute by arbitration. Further, the Model
Law in respect of which jurisdiction is conferred on the Federal
Court reflects the globally accepted standard for enforcement of
arbitral awards. Had TCL succeeded, Australia would have been alone
among its peers in having no effective means of enforcing
Pleasingly, representatives for the Commonwealth, Queensland,
South Australia, Victoria, NSW and WA intervened in support of the
constitutional validity of the legislation.
The High Court unanimously rejected TCL's argument. The High
Court held that the legislation did not undermine the institutional
integrity of the Federal Court nor confer judicial power on the
Commentators Australia-wide have welcomed the decision, which
accords with Australia's political commitment to promote
international arbitration. It is regrettable that the High Court
and the defendants were put to the burden and cost of this matter
– which is so obvious in its outcome – at all.
*TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the
Federal Court of Australia  HCA 5
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