These decisions reflect the straightforward practice of
achieving recognition and enforcement of foreign arbitral awards in
A party that obtains an award in an overseas arbitration may
seek recognition and enforcement of that award by an Australian
Court under section 8 of the International Arbitration Act 1974
(Cth). Section 8 also contains grounds under which enforcement of
foreign awards "may" be refused by the Court (subsections
8(5), (7) and (8)).
A glance over recent Australian decisions provides some useful
insights into the practice of enforcement of foreign awards and
highlights particular issues in the event of non-appearance by a
defendant to challenge enforcement. These cases are notable
illustrations of the robust approach of the courts to the
recognition and enforcement of foreign awards.
An Enforcement Application In The Federal
Justice Emmett, in the Federal Court, recently considered an
application by a Chinese corporation, China Sichuan Changhong
Electric Co Ltd, for leave to enforce a foreign arbitral award
against an Australian company, CTA International Pty Ltd (China
Sichuan Changhong Electric Co Ltd v CTA International Pty Ltd
 FCA 397).
The award was issued by the Mianyang Arbitration Commission in
the People's Republic of China, and resulted from an
arbitration pursuant to an exclusive Sales Agreement for the
distribution of the Chinese company's products in Australia and
The Australian defendant did not appear before the Court at the
The Court concluded, on the evidence submitted by the plaintiff,
that the Chinese Award satisfied the requirements for enforcement
as a "foreign award" under the Act, and that the Sales
Agreement between the parties had contained a relevant arbitration
clause. In dealing with the defendant's absence, the Court
considered the issue of whether the defendant had been properly
notified of the enforcement application, and, finding that it had,
granted leave to the plaintiff to enforce the Award.
Recent Decisions Of The NSW Supreme Court
A comparable scenario featured in a recent decision of the NSW
Supreme Court involving an application by a Singapore company,
Transpac Capital Pte Limited, to enforce an award obtained against
an Australian party in a Singapore arbitration under the rules of
the Singapore International Arbitration Centre (Transpac
Capital Pte Limited v Buntoro  NSWSC 671). The defendant
in the application, once again an Australian company, similarly did
not appear at the hearing before Justice Hall.
The Court determined on the evidence before it that the
Singapore arbitration had been conducted pursuant to a relevant
arbitration agreement between the parties, and that the resulting
Award was eligible for enforcement as a "foreign award"
under the Act. In the absence of a challenge by the defendant, the
Court went on to consider of its own accord the question of whether
any grounds applied, under section 8 of the Act, for it to refuse
enforcement of the Singapore Award. Concluding that none applied,
the Court granted leave to the plaintiff to enforce the Award.
More recent still is the decision of Justice Hammerschlag, in
another enforcement application before the NSW Supreme Court in
which a Chinese plaintiff sought enforcement of a Chinese arbitral
award under the China International Economic and Trade Arbitration
Commission (CIETAC) (Xiaodong Yang v S&L Consulting Pty Ltd
& Anor  NSWSC 1051). In analogous circumstances, the
defendants, one of which was an Australian company, did not make an
appearance before the Court.
Having determined that the plaintiff's evidence met the
criteria under section 8 of the Act, and that proper notice of the
application had been given to the defendants, the Court granted
leave to enforce to the plaintiff, concluding that there was
"no reason discernible from the material relied upon why this
Court should not enforce the award".
These recent decisions demonstrate the ways in which courts may
exercise their discretion under the Act in considering whether
grounds exist for refusing enforcement of foreign awards. This is a
particularly relevant issue where, as in the above cases, a
defendant does not appear before the court at the enforcement
More generally, the above outcomes are a reflection of the
straightforward practice of achieving recognition and enforcement
of foreign arbitral awards in Australia.
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.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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