Originating application to enforce an award under section 35(4) of the International Arbitration Act 1974 (Form 58)

Part IV of the International Arbitration Act 1974 gives effect to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the Investment Convention). Section 35(3) designates the Federal Court for the purposes of Article 54 of that Convention, and section 35(4) lets an award be enforced in the Federal Court, with the Court's leave, as if it were a judgment or order of the Court. In Part IV, an award includes an interpretation, revision or annulment of an award under Articles 50 to 52 (s 31). Rule 28.49 of the Federal Court Rules 2011 says a party to the arbitral proceeding files an originating application in accordance with Form 58, with a supporting affidavit.

When you need it

• You are a party to an investment convention arbitration and want the award enforced in Australia.
• The award has not been complied with, in whole or in part.
• Not for a commercial award made overseas under the New York Convention. That uses Form 52 (CA-1 paras 8.1, 8.2).

1. 1

   Complete the heading

   Fill in the District Registry, Division and parties. Address the notice to each party who may be affected by the application.

2. 2

   Orders sought

   The form records that the applicant, as a party to the arbitral proceeding, applies to enforce an award under section 35(4). Identify the award clearly, including any interpretation, revision or annulment decision.

3. 3

   Prepare the supporting affidavit

   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 person against whom enforcement is sought, or a company's last-known registered office (r 28.49(2)). Exhibit the award.

4. 4

   Addresses, service and signature

   Give the applicant's address for service (r 11.01) and email, insert the role of the parties to be served, choose one service statement, then date and sign.

• File through eLodgment. A filing fee applies - check the current fee schedule.
• The application may be made without notice (r 28.49(3)). CA-1 Annexure B sets out the usual procedure: if allowed, the Court orders notice to the award debtor with 28 days to oppose, and a return date.
• Where the application must proceed on notice to a party outside Australia, leave to serve may be needed (rr 10.42, 10.43).
• Documents not in English must be accompanied by a certified English translation provided to the Court and the other parties (r 28.50).

• Section 35(4) requires the Court's leave. Frame the orders sought to include leave to enforce.
• Opposed enforcement applications are docketed to a Commercial Arbitration judge; shorter matters are heard by a National Coordinating Judge (CA-1 paras 4.4 to 4.8).