In practice, this provision has recently
been applied in the New South Wales
(NSW) jurisdiction in Australia by the
NSW Court of Appeal.
the production and direction of the film
Mad Max: Fury Road,
stayed in their entirety under Section 7(2)
of the IAA in order to allow arbitration
to take place in California.
ambiguous nature of the arbitration clause
in question.
the Western Australian (WA) jurisdiction
in the matter of Siam Steel International
PLC v Compass Group (Australia) Pty Ltd.
held that the arbitration agreement before
the Court was not "inoperative" within
the meaning of Section 7(5) of the IAA
and hence Section 7(2) of the Act applied
and the proceedings were stayed for
arbitration to occur.
stayed pending arbitration under Section
7(2) in the matter of Casaceli v Natuzzi
S.p.A,
the matter was capable of settlement by
arbitration.
recognized in Australia, as in any other
New York Convention jurisdiction,
by the arbitration clause are capable of
resolution by arbitration. This may exclude
disputes "required to be determined
exclusively by the exercise of judicial
power."
considered by an Australian Court to be
null and void, inoperative or incapable of
being performed. Where these conditions
are met, commercial parties applying to the
Australian Courts to have a matter before
the courts stayed pending arbitration are
likely to be successful.
relating to the enforcement of foreign
arbitral awards in Australia was TCL
Air Conditioner (Zhongshan) Co Ltd v
Judges of the Federal Court of Australia.
concluded that the inability to challenge
arbitral awards on the basis of an error
of law is consistent with the consensual
and private nature of arbitration, and thus
constitutional invalidity cannot be raised as
a bar to enforcement.
Federal Court prior to the TCL decision,
award notwithstanding that the arbitral
proceedings were conducted without the
respondent in attendance.
later decisions, including the granting of
leave by the Federal Court to a creditor to
commence proceedings for enforcement of
a $200 million USD Singaporean award in
Australia under the IAA.
unreasonably challenge arbitral awards in
order to prevent their enforcement have
faced strong opposition. In Sino Dragon
Trading Ltd v Noble Resources International
Pte Ltd (No 2),
two-thirds of the respondent's costs on an
indemnity basis due to the lack of merit
and lack of reasonable prospects of success
of the applicant's claims.
of arbitral awards must also ensure that
challenges to arbitral awards are not
founded on substantive grounds of appeal
as, in the absence of reasonable prospects
of success, unmeritorious claims of
invalidity may be the subject of harsh costs
orders against applicants.
has been increasingly welcoming in
relation to the recognition of international
arbitration agreements and international
enforcement of arbitral awards.
should ensure that they act prudently in
preparing competently drafted arbitration
agreements and in selecting experienced
arbitrators so as to ensure they receive
the best possible outcome in arbitrated
disputes involving Australia.
3 International Chamber of Commerce, `2017 ICC Dispute
5 United Nations Commission on International Trade Law:
8 Ibid.
9 Hon Michael Kirby, `International Commercial
11 Ibid.
12 International Arbitration Act 1974 (Cth) s 7(2).
13 Warner Bros Feature Productions Pty Ltd v Kennedy Miller
15 Ibid [88]; International Arbitration Act 1974 (Cth).
16 Warner Bros Feature Productions Pty Ltd v Kennedy Miller
18 Ibid [43]-[47]; International Arbitration Act 1974 (Cth) s
20 Ibid [34].
21 Convention on the Recognition and Enforcement of Foreign
24 TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the
26 Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd [2011]