Originating application under section 23F or section 23G of the International Arbitration Act 1974 (Form 57)

Sections 23C to 23G of the International Arbitration Act 1974 deal with confidential information in arbitral proceedings. Where the tribunal has allowed disclosure under section 23E(1), a party may ask a court to prohibit it (s 23F). Where the tribunal's mandate has ended or the tribunal refused a disclosure request, a party may ask a court to allow it (s 23G). In both cases the court weighs the public interest in confidentiality against other public interest considerations, and its order is final. Rule 28.48 of the Federal Court Rules 2011 requires Form 57 where no proceeding has been started about the arbitration, with a supporting affidavit.

When you need it

• The tribunal has ordered that confidential information may be disclosed and you want the Court to prohibit it (s 23F(3)).
• You want to disclose confidential information and the tribunal's mandate has been terminated under Article 32 of the Model Law, or it refused your request (s 23G(3)).
• No Federal Court proceeding has been started in relation to the arbitration. Otherwise use an interlocutory application (r 28.48(1)(b)).

1. 1

   Complete the heading

   Fill in the District Registry, Division and parties to the application.

2. 2

   Orders sought

   The form records that the applicant is a party to the arbitral proceeding and seeks an order under section 23F or 23G. State which section and the precise order, identifying the information concerned.

3. 3

   Prepare the affidavit

   State the person against whom the order is sought, the order, and the material facts. For section 23F, add the terms and date of the tribunal's disclosure order. For section 23G, add the date the mandate ended, the terms and date of your request to the tribunal, and the terms and date of its refusal (r 28.48(2)).

4. 4

   Addresses, service and signature

   Give the address for service and email, choose one service statement, then date and sign as applicant or lawyer.

• File through eLodgment with the affidavit. A filing fee applies - check the current fee schedule.
• Serve every party to the arbitration. The Court may only make the order after giving each of them the opportunity to be heard (ss 23F(2), 23G(2)).
• Pending the outcome of a section 23F application, the Court may order that the information not be disclosed (s 23F(4)).

• Sections 23C to 23G apply unless the parties agreed in writing that they will not, and they do not apply where the UNCITRAL Transparency Rules apply (s 22(2), (3)).
• Consider whether the affidavit itself discloses the confidential material and whether you need a suppression or confidentiality order when filing.
• There is no appeal from the order: it is final (ss 23F(5), 23G(4)).