Originating application for stay of a proceeding under the International Arbitration Act 1974 (Form 51)

Section 7 of the International Arbitration Act 1974 applies to arbitration agreements with an international element, such as those governed by the law of a Convention country or where a party is domiciled or resident in one. Where a party to such an agreement starts proceedings in a court against another party about a matter capable of settlement by arbitration under the agreement, the court must, on the application of a party, stay the proceedings (or the relevant part) and refer the parties to arbitration (s 7(2)), unless it finds the agreement null and void, inoperative or incapable of being performed (s 7(5)). Rule 28.43 of the Federal Court Rules 2011 requires a party seeking a stay under section 7 to file an originating application in Form 51, with a copy of the arbitration agreement and an affidavit stating the material facts.

When you need it

• You are a party to an international arbitration agreement and the other party has sued you over a matter the agreement says goes to arbitration.
• The agreement falls within s 7(1), for example because its procedure is governed by the law of a Convention country.
• You want the proceeding, or part of it, stayed and the parties referred to arbitration.

1. 1

   Heading and parties

   Insert the District Registry, Division and the parties, using the schedule if there are more.

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

   Orders sought

   The form records that you are a party to an arbitration agreement seeking a stay under s 7. State briefly but specifically the orders sought, identifying the proceeding to be stayed (court, file number, parties) and whether the whole or part.

4. 4

   Accompanying documents

   Attach a copy of the arbitration agreement and an affidavit stating the material facts, including why s 7(1) applies and why the dispute falls within the agreement (r 28.43(2)).

5. 5

   Address, service and signature

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

• File the application, the arbitration agreement and the affidavit. eLodgment is the Court's electronic filing system. A filing fee applies - check the Court's current fee schedule.
• 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).
• Commercial arbitration matters are managed in the Commercial and Corporations National Practice Area (C&C-1).

• A reference to a party in s 7(2) and (3) includes a person claiming through or under a party (s 7(4)).
• Address s 7(5) in your evidence: show the agreement is valid, operative and capable of being performed.
• When it stays proceedings the Court may make interim or supplementary orders to preserve property that is the subject of the dispute (s 7(3)).