Australia: Freezing orders can preserve enforcement of international and domestic arbitral awards

The recent High Court of Australia decision in PT Bayan Resources TBK v BCBC Singapore Pte Ltd1 considered the doctrinal basis for freezing orders (also known as asset preservation orders, and, inaptly, 'Mareva injunctions'). In that decision, the High Court confirmed the potential breadth of such an order, in a way that assists parties to arbitrations.

The High Court confirmed that a freezing order is available in respect of an anticipated award in a domestic arbitration, and its reasons make clear that such orders are available in respect of anticipated awards in international arbitrations as well, regardless of the seat of the arbitration or underlying law of the dispute.

The decision puts another arrow in the quiver of parties who have agreed to resolve disputes by arbitration, and is a further demonstration of the Australian judiciary's support for arbitrations international and domestic.


The fundamental issue in Bayan v BCBC was a short one: did the Supreme Court of Western Australia have the power to make a freezing order in anticipation of an enforceable money judgment in foreign proceedings?

Bayan and BCBC were both shareholders in a company incorporated in Indonesia, PT Kaltim Supacoal. Their rights and obligations as shareholders were the subject of a joint venture agreement governed by the law of Singapore. BCBC commenced litigation in the High Court of Singapore claiming (among other things) damages for breach of the joint venture agreement.

Soon after commencing the Singapore proceeding, BCBC applied to the Supreme Court of Western Australia for a freezing order over shares owned by Bayan in an Australian company (Kangaroo Resources Ltd). There were no other proceedings on foot in Western Australia and there was no prospect of any before judgment in the Singapore litigation.

In the High Court, Bayan accepted that there was a factual foundation for the freezing order under the relevant Western Australian Court rules:

  • BCBC had a good arguable case in its Singapore proceeding;
  • this gave rise to a sufficient prospect of obtaining a judgment in its favour;
  • this judgment could be registered in, or enforced by, the Supreme Court of Western Australia; and
  • there was a danger that, before satisfaction of that judgment, Bayan may dispose of its Australian assets.

However, Bayan contended that the Supreme Court did not (and does not) have the power to make a freezing order in relation to a prospective judgment of a foreign court.

The High Court disagreed, holding that the Supreme Court has the power to make a freezing order in the exercise of its inherent power2. A money judgment in the Singapore proceeding is a prospective judgment of the Supreme Court of Western Australia as it can be registered under the Foreign Judgments Act 1991 (Cth) and enforced as a judgment of the Supreme Court. The freezing order is made to prevent frustration of that judgment3. It is relief appurtenant to a prospective judgment; there does not need to be an underlying cause of action appurtenant to the freezing order before the Supreme Court.

In summary, the High Court concluded that the process which a freezing order is designed to protect is a prospective enforcement process so it does not matter that the freezing order is in anticipation of a foreign judgment coming into existence. This is so even if there are other conditions or contingencies (in addition to the outcome of the foreign proceeding) that need to be satisfied before the order can come into existence4.


Like foreign judgments, although under a different statutory regime, domestic and international arbitral awards are enforceable by Australian courts (subject to certain exceptions)5. So the High Court's reasoning should apply equally to anticipated arbitral awards, both domestic and international, regardless of the seat of the arbitration or the underlying law of the dispute. Interim measures made by courts—such as freezing orders—are not incompatible with an arbitration agreement6. In exceptional circumstances, a freezing order may be sought before an arbitration commences.

Indeed, all seven Justices specifically approved a 'frequently applied' 1984 decision of the Supreme Court of New South Wales7, holding that a freezing order is available to support (domestic) arbitrations8. In that case, the Court said that in providing protection where a party is exposed to the risk that their opponent may dissipate their assets, there is no reason to distinguish between arbitral proceedings and proceedings instituted in court.


Although the High Court has confirmed that there is no inherent doctrinal or theoretical reason preventing freezing orders being made in connection with a domestic arbitration (and by logical extension, international arbitration), there are still practical considerations to be aware of:

  1. Not a general security for judgment

Freezing orders are not a general security for a potential judgment: they prevent the disposal of assets to frustrate the court's processes by depriving the plaintiff of the fruits of any judgment9.

  1. An exceptional order

A freezing order is an exceptional order, which has been described as one of the law's 'nuclear weapons'10. They are not granted lightly, and will be tailored to the specific circumstances of the case11. They must generally be supported by an undertaking as to damages12, which can be costly13.

  1. Need to comply with relevant rules

Freezing orders are now the subject of model rules prepared by a harmonisation committee of judges appointed by the Council of Chief Justices of Australia and New Zealand, which have been adopted in all Australian States and Territories as well as in the Federal Court. They require cogent evidence that the applicant has 'a good arguable case on an accrued or prospective cause of action', there is a 'sufficient prospect' of obtaining an enforceable judgment, and for the court to be satisfied 'that there is a danger that [the] judgment will be wholly or partly unsatisfied'. They may be made ex parte, which requires full disclosure of all relevant facts.

  1. The Federal Court has jurisdiction in relation to international arbitrations

The High Court held in Bayan v BCBC that the connection with the Foreign Judgments Act 1991 (Cth) meant that federal jurisdiction arose14. That reasoning also means that the Federal Court of Australia can hear applications


1 (2015) 89 ALJR 975; 325 ALR 168; [2015] HCA 36.

2 The inherent power of the Supreme Court of a State includes the power to make orders 'to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction' (Jackson v Sterling Industries Ltd (1987) 162 CLR 612, 623) of which the freezing order is a paradigm example.

3 (2015) 89 ALJR 975, 982–983 [41], 984 [51] (French CJ, Kiefel, Bell, Gageler, and Gordon JJ).

4 (2015) 89 ALJR 975, 983 [47] (French CJ, Kiefel, Bell, Gageler, and Gordon JJ).

5 Foreign arbitral awards may be enforced in a court of a state or territory or in the federal court as if they were a judgment of that court: International Arbitration Act 1974 (Cth) s 8(2), (3). See also s 16 of the International Arbitration Act 1974 which picks up international arbitral awards made in Australia. Domestic arbitral awards may be enforced under s 35 of the uniform Commercial Arbitration Acts.

6 Article 9 of the of the Model Law, given effect by section 9 of the International Arbitration Act 1974 (Cth) and section 9 of the uniform Commercial Arbitration Acts.

7 Construction Engineering (Aust) Pty Ltd v Tambel (Australasia) Pty Ltd [1984] 1 NSWLR 274.

8 (2015) 89 ALJR 975, 983–984 [48] (French CJ, Kiefel, Bell, Gageler, Gordon JJ), 989 [81] (Keane and Nettle JJ).

9 (2015) 89 ALJR 975, 988 [77] (Keane and Nettle JJ). See Jackson v Sterling Industries Ltd (1987) 162 CLR 612, 625 (Deane J).

10 See Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 158 [265] (Kirby J), 312 [284] (Callinan J).

11 See Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, 403–404, 405 [51], [56] (Gaudron, McHugh, Gummow, and Callinan JJ).

12 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, 401

[43] (Gaudron, McHugh, Gummow, and Callinan JJ).

13 See, eg, European Bank Ltd v Evans (2010) 240 CLR 432.

14 (2015) 89 ALJR 975, 984–985 [51]–[55] (French CJ, Kiefel, Bell, Gageler, and Gordon JJ).

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.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

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”

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.