Originating application to enforce a foreign award under the International Arbitration Act 1974 (Form 52)

Section 8(3) of the International Arbitration Act 1974 lets a foreign award be enforced in the Federal Court as if it were a judgment or order of the Court. A foreign award is an award made in a country other than Australia (Commercial Arbitration Practice Note CA-1 para 8.1). Rule 28.44 of the Federal Court Rules 2011 requires an originating application in accordance with Form 52, accompanied by the documents mentioned in section 9 of the Act (the authenticated award or certified copy, and the arbitration agreement or certified copy) and an affidavit about non-compliance and the award debtor's address. The Court may refuse enforcement only on the grounds in section 8(5) and (7) (s 8(3A)).

When you need it

• You hold an award from an arbitration seated outside Australia and want it enforced against assets or a party in Australia.
• The award has not been complied with, in whole or in part.
• CA-1 says the same procedure should be followed to enforce an award under Chapter VIII of the Model Law (para 8.1). An investment treaty (ICSID) award uses Form 58.

1. 1

   Complete the heading

   Fill in the District Registry, Division and parties, listing additional parties in the schedule. The Registry inserts the file number and hearing details.

2. 2

   State the orders sought

   The form states that the applicant wants to enforce a foreign award under section 8(3). State briefly but specifically the orders you want. CA-1 Annexure B says the usual order is a declaration that the applicant is entitled to enforce the award as if it were a judgment of the Court.

3. 3

   Attach the section 9 documents

   Produce the duly authenticated original award or a duly certified copy, and the original arbitration agreement or a duly certified copy (s 9(1)). Anything not in English needs a certified English translation (s 9(3), r 28.50).

4. 4

   Prepare the supporting affidavit

   The affidavit must state the extent to which the award has not been complied with at the date of the application, and the usual or last-known residence or business of the award debtor, or a company's last-known registered office (r 28.44(2)(b)).

5. 5

   Addresses, service and signature

   Give the applicant's address for service (r 11.01) and email, choose one service statement, then date and sign as applicant or lawyer.

• File through eLodgment. A filing fee applies - check the current fee schedule.
• The application may be made without notice to any person (r 28.44(3)). CA-1 Annexure B explains that where the award debtor has not given notice of an objection, the Court will usually make orders requiring notice to be given, with 28 days to oppose before the award is enforced.
• If the Court requires the application to proceed on notice, you may need leave to serve it outside Australia (CA-1 Annexure B para 3; rr 10.42 and 10.43).
• An award debtor who wants to resist enforcement brings an interlocutory application, supported by affidavit, before the return date (CA-1 Annexure B para 4).

• Check the copies of the award and the arbitration agreement are properly certified. Under section 9(5) they are prima facie evidence on mere production.
• Grounds for refusal include incapacity, an invalid agreement, lack of proper notice, excess of the submission, irregular composition or procedure, and an award not yet binding or set aside (s 8(5)), plus non-arbitrability and public policy (s 8(7)).
• If the award is being challenged at the seat, the Court may adjourn the enforcement application (s 8(8)).