Originating application for relief under Model Law (section 18 of the International Arbitration Act 1974) (Form 53)

The UNCITRAL Model Law on International Commercial Arbitration has the force of law in Australia under the International Arbitration Act 1974 and is set out in Schedule 2 to that Act. Section 18 names the Federal Court as a competent court for several Model Law functions, including decisions on challenges to arbitrators (article 13(3)), failure to act (article 14), jurisdiction rulings (article 16(3)), setting aside awards (article 34(2)), recognising interim measures (article 17H) and assisting in taking evidence (article 27). Rule 28.45 requires an originating application in Form 53 for relief under articles 11(3), 11(4), 13(3), 14, 16(3), 17H(3), 17I, 17J or 27, with an affidavit of the material facts. Rule 28.45A requires Form 53 for an application to set aside an award under article 34.

When you need it

• You need a court decision on a challenge to an arbitrator after an unsuccessful challenge (art 13(3)).
• You want the Court to decide whether the tribunal has jurisdiction after a preliminary ruling (art 16(3)), or to recognise or refuse an interim measure (arts 17H, 17I), or to issue court-ordered interim measures (art 17J).
• You need court assistance to take evidence (art 27), or the appointment of an arbitrator under art 11(3) or (4) by the court or authority prescribed for that purpose (s 18(1), (2)).
• You want an award set aside under article 34.

1. 1

   Heading and parties

   Insert the District Registry, Division and the parties, using the schedule if needed.

2. 2

   Leave the hearing details to the Registry

   The Registry inserts the hearing time and place and any order abridging time for service.

3. 3

   Order sought

   Identify the Model Law article you rely on and state briefly but specifically the order sought.

4. 4

   Setting aside: identify the grounds

   For article 34, the application must identify which subparagraph of article 34(2)(a) or (b) you rely on and give brief grounds (r 28.45A(2)).

5. 5

   Accompanying affidavit

   State the material facts. For a setting aside application, the affidavit must also give the detailed grounds and the date you received the award (or the date an article 33 request was disposed of), and attach the arbitration agreement and the award with any reasons (r 28.45A(3), (4)).

6. 6

   Address, service and signature

   Give your address for service, email and residential or business address, choose the service option and sign.

• File the application and affidavit. eLodgment is the Court's electronic filing system. A filing fee applies - check the Court's current fee schedule.
• Setting aside: apply within 3 months after you received the award, or after an article 33 request was disposed of (art 34(3)). Serve the application and affidavit on any person whose interest might be affected (r 28.45A(5)).
• Challenges to arbitrators (art 13(3)) and jurisdiction rulings (art 16(3)) must be brought within 30 days after receiving notice of the tribunal's decision.
• Serve the application and accompanying documents personally on each respondent as soon as practicable and at least 5 days before the first hearing, unless the Court shortens time (r 8.06).

• Article 34 is the only recourse against an award under the Model Law (art 34(1)), and the grounds are limited to those in art 34(2).
• A request to suspend setting aside proceedings under art 34(4) is made by interlocutory application in the same proceeding (r 28.45A(6)).
• Rule 28.45 lists the articles Form 53 covers. Other applications under the Act, such as subpoenas (r 28.46) or enforcing a foreign award (Form 52, r 28.44), use different forms.