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AUSTRALIA 58
Federal Court of Australia, 24 October 2023, NSD 347 of 2021
(CCDM Holdings, LLC v Republic of India (No 3))
AUSTRALIA 58
The Court held that, by becoming a Contracting State to the New York Convention, India waived its sovereign immunity under the Australian Foreign Sovereign Immunity Act in proceedings for the recognition and enforcement of a foreign award.
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.
The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.