Court Decisions

The court decisions available on this website interpret and apply the New York Convention. These court decisions are in most cases published in the Yearbook Commercial Arbitration since its Volume I (1976). 

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The court decisions available on this website interpret and apply the New York Convention.

  1. Most decisions are reported in the Yearbook Commercial Arbitration, published by ICCA since 1976, and are numbered as in the Yearbook (e.g., US no. 954).

  2. Other decisions are indicated by country, date, and a short name (e.g., UK 18 June 2020 Alexander Brothers).

Court decisions can be searched by country and by topic.

Court Decisions

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  • Excerpt Topics
    AUSTRALIA 2024-1

    Federal Court of Australia, 24 October 2023, NSD 347 of 2021

    (CCDM Holdings, LLC v Republic of India (No 3))

    105

    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).

    "Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
    301

    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.

    Procedure for enforcement in general
    401

    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.

    Conditions to be fulfilled by petitioner in general
  • Excerpt Topics
    AUSTRALIA 57

    The Court granted enforcement of an arbitral award rendered by the Beijing Arbitration Commission (BAC) in a dispute that arose in respect of an agreement (the CDA) for the development of an elder-care facility in PR China. (1) The Court dismissed the contention that enforcement would be contrary to Australian public policy, explaining that the courts of PR China, the courts with supervisory jurisdiction over the arbitration, had heard and rejected the respondents’ argument that the arbitral award was fundamentally unfair because in ordering the rescission of the CDA, the arbitral tribunal had made no provision for returning the parties to the position they had been in prior to entering into the CDA. It would therefore be “inappropriate”, explained the Court, for an enforcement court to reach a different conclusion on the same question from that of the supervisory court at the seat of the arbitration. The Court held that it was clear from its review of the arbitration proceedings that the arbitral tribunals had dealt with the dispute before it, which concerned the provision and repayment of loans pursuant to the CDA. It then dismissed the argument that the arbitral tribunal had erred in failing to make any order concerning the re-conveyance of shares that would have restored the parties to the situation they had been in prior to the CDA, noting that no such request had been made in the arbitration proceedings. Furthermore, according to the Court, the tribunal had not erred in not providing for re-conveyance of shares, because to do so would have implicated the interests of an entity that was not a party to the CDA, and possibly would have involved the dissolution of separate agreements to which the present claimant (the respondent in the arbitration) was not a party. In addition, explained the Court, the award debtors were not foreclosed by the arbitration from applying to the relevant court in PR China for an order on whether they could demand the restitution of shares. (2) As to whether the arbitration agreement and award submitted in the proceedings had been duly certified or authenticated, the Court rejected the respondents’ contention that a court in enforcement proceedings exercised a quasi-administrative function, and was therefore required, pursuant to Sub-sect. 9(1) of the Australia International Arbitration Act (IAA), to verify the authenticity of the documents. The Court explained that enforcement of an award is not an administrative function but the exercise of a judicial power. Moreover, the respondents had not argued that the documents were not what they purported to be, and the Court was satisfied that the copies submitted to it had been duly authenticated and certified, as they bore the stamps of the BAC and the seals and signatures of the parties. (3) The Court also held that it was not necessary that a translation be certified by a diplomatic or consular agent in Australia of the country where the award was made, as the IAA clearly granted the court the discretion to accept other forms of certification.

    Federal Court of Australia, New South Wales Registry, General Division, 22 December 2022, File number NSD 580 of 2022

    (Guoao Holding Group Co Ltd v. Lijuan Xue et al.)

    404

    The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.

    Authentication and certification
    406

    The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.

    Translation (paragraph 2)
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    AUSTRALIA 56

    The applicants entered into a construction agreement with a contractor in respect of a people-mover system at Education City in Qatar, and into a related payment guarantee agreement with both the contractor and respondent. In accordance with the arbitration clauses in the agreements, the same panel of arbitrators rendered an LCIA award in London and an ICC award in Dubai, both in favor of the applicants. The Federal Court granted the applicants’ application for judgment in the amount of the awards, together with interest and costs. The Court found that respondent, which did not appear in the enforcement proceedings, had been duly served, and that all the requirements under the International Arbitration Act were met. The awards were foreign awards to which the 1958 New York Convention applied, because they were made in a country other than the country in which recognition and enforcement was sought. In this respect, the Court clarified that the reference to the State in which the award was made was not confined to a Contracting State to the Convention, as Australia did not make the reciprocity reservation when acceding to the Convention. And in any event, the Court added, both the UK and the UAE were Convention countries. Further, the Court found that the applicants complied with the requirements of Sect. 9(1)(a)-(b) of the IAA – which mirror Art. IV(1)(a)-(b) of the Convention – by supplying the copy of the signed awards transmitted electronically to them by the LCIA and ICC secretariats, respectively, as is allowed under both sets of rules, as well as copies of the arbitration agreements, accompanied by an affidavit by counsel who had represented the applicants in the arbitration. Finally, the Federal Court converted the amounts sought into Australian dollars, as requested by the applicants. It noted that in the originating application, the sums sought – that is, the sums awarded by the arbitrators – were indicated in various foreign currencies; however, the additional notation “or equivalent” sufficed, in the Court’s opinion, to give notice to respondent that the judgment may be expressed in a different currency. As to the date for conversion, the Federal Court held, on the facts, that the appropriate date was the date of its own judgment. However, it accepted as sufficiently close the exchange rates from the day before the date of the hearing, which was also the date of the present judgment, reasoning that it was impractical to convert sums to Australian dollars at exchange rates on the date of judgment as, typically, the court sits in the morning when exchange rates are not yet available, particularly for currencies in other parts of the world.

     

    Federal Court of Australia, General Division, New South Wales Registry, 30 August 2022, NSD 1152 of 2021

    (Siemens WLL and Siemens AG v. BIC Contracting LLC)

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    301

    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.

    Procedure for enforcement in general
    402

    The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.

    Original or copy arbitral award
    403

    The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.

    Original or copy arbitration agreement
    AUSTRALIA 55

    In a dispute arising in respect of back-to-back deeds concerning the construction of a series of tunnels (the Deeds), the Court was seized with an application to enjoin the defendants from referring the dispute to expert determination and then arbitration – in accordance with the tiered dispute resolution procedure established in the Deeds – before a dispute over the jurisdiction of the expert was decided. The Court granted the defendant’s request to stay the proceedings because of the parties’ agreement to arbitrate in the agreed tiered dispute resolution procedure. It determined that, contrary to the plaintiffs’ contention, the arbitration agreement in question was “operative”, notwithstanding the fact that the expert determination phase envisaged by the tiered dispute resolution procedure agreed to by the parties had yet to be undertaken. The Court held that the failure to complete preliminary steps to arbitration in a tiered dispute resolution clause did not render the arbitration agreement “inoperative” for the purposes of Sect. 8(1) of the Commercial Arbitration Act (mirroring Art. II(3) of the 1958 New York Convention). To consider the arbitration agreement “inoperative” in such circumstances, the Court explained, would undermine the object of Australian arbitration law and depart from the interpretation of the term under the 1958 New York Convention, and in UNCITRAL Model Law jurisdictions. In particular, according to the Court, the approach suggested by the plaintiffs would have allowed a party to evade its agreement to submit disputes to arbitration by commencing court proceedings before the preliminary steps had been completed. The Court then rejected the plaintiffs’ application for injunctive relief, finding that the question of the order in which related disputes should be resolved was for the expert/arbitrator, not the courts, in accordance with the tiered dispute resolution procedure established in the Deeds. The plaintiffs had relied on a section of the Deeds which entitled the parties to seek “urgent” interlocutory relief from courts, but the plaintiffs’ application in the present case did not meet that “urgent” requirement. Although the Court opined that the plaintiffs’ case for hearing the jurisdiction dispute first was “compelling”, this was a procedural issue for the expert and then arbitrator to decide in accordance with the rules of the dispute resolution institution to which the parties had agreed to submit disputes for the expert determination phase. The plaintiffs’ argument that the Expert Determination Rules of the institution in question allowed for recourse to the court on a preliminary question of jurisdiction or law failed: the rule on which the plaintiffs relied presupposed that the expert determination process had already begun before a party applied to the court, the Court explained, and this was not the case here.

    Supreme Court, New South Wales, Equity – Commercial List, 29 April 2022, File Number 2022/55988

    (WCX M4-M5 Link AT Pty Ltd in its personal capacity and in its capacity as trustee of the WCX M4-M5 Link Asset Trust et al. v. Acciona Infrastructure Projects Australia Pty Ltd et al.)

    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
  • Excerpt Topics
    AUSTRALIA 53

    A Full Court of the Federal Court of Australia granted an appeal from its own first instance decision, rendered by a Judge, and denied enforcement of a Qatari award, finding that the arbitral tribunal had not been constituted in accordance with the parties’ agreement.

    Federal Court of Australia, 25 June 2021

    (Hub Street Equipment Pty Ltd v. Energy City Qatar Holding Company)

    500

    The court discusses the overall scheme and/or pro-enforcement bias of the Convention.

    Grounds for refusal of enforcement in general
    500A Residual power to enforce notwithstanding existence of ground for refusal
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    509

    Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.

    "Proper notice"
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    AUSTRALIA 54

    The Federal Court granted recognition and enforcement of an arbitral award rendered in Canada. It held that all requirements of the International Arbitration Act, 1974, by which Australia had enacted the 1958 New York Convention, were met by the applicant, which had filed the duly authenticated copy of the agreement containing the arbitration clause and of the award it sought to enforce. The respondents had not appeared in the enforcement proceedings.

    Federal Court of Australia, 21 June 2021

    (Neptune Wellness Solutions, Inc v. Azpa Pharmaceuticals Pty Ltd et al.)

    401

    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.

    Conditions to be fulfilled by petitioner in general
    AUSTRALIA 52

    The Federal Court denied enforcement of a CIETAC award, rendered in a dispute under a shareholders agreement, in respect of the second respondent, finding that she had not been properly informed of the arbitration, and that the lack of a proper notice (Sect. 8(5)(c) of the 1974 International Arbitration Act (IAA) and Art. V(1)(b) of the 1958 New York Convention) constituted a breach of natural justice, so that enforcement would constitute a violation of public policy (Sect. 8(7)(b) of the IAA and Art. V(2)(b) of the Convention). The Court granted enforcement against the other respondents. (1) The Court observed preliminarily that: (i) there was a strong presumption of regularity in respect of awards and the means by which they were arrived at; (ii) the evidentiary standard of proof to establish grounds for refusal under the IAA was the balance of probabilities and specifically, in respect of proper notice, the party had to have been given a reasonable opportunity to present its case; (iii) proper notice had to be determined under Australian law, but it was important that any approach to determine what was proper notice under Sect. 8(5)(c) was consistent with the approaches of other jurisdictions that enacted domestic law to implement the New York Convention; (iv) a finding of violation of public policy as a ground for refusal under Sect. 8(7)(b) of the IAA was a matter of Australian public policy and Australian principles of natural justice; and (v) the Federal Court was not bound by the findings of the arbitral tribunal. (2) On the facts of the case, the Court held that the second respondent had not been given notice of the arbitration at the (email) addresses provided for in the shareholders agreement; the notice had been sent instead to an address that was not the contractually agreed address for her, but rather the address given for her husband, the first respondent, in a different agreement to which she was not a party. The Court also found that the second respondent could not be deemed to have had actual knowledge of the arbitration through her husband, both because the Court found that he had not been her agent, and because the second respondent had had very limited involvement in her husband’s business. Notice had also not been in accordance with the alternatives given in the CIETAC rules. (3) Failure to give proper notice breached the rules of natural justice and enforcement of the award would constitute a violation of public policy. (4) Under the circumstances, the Court held that it ought not to exercise its residual discretion in favor of enforcement even in the absence of proper notice, because proper notice was a fundamental requirement to the integrity of the arbitration.

    Federal Court of Australia, 11 May 2021, File No. VID 637 of 2020

    (Beijing Jishi Venture Capital Fund (Limited Partnership) v. James Z Liu et al.)

    500A Residual power to enforce notwithstanding existence of ground for refusal
    509

    Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.

    "Proper notice"
    523

    Public policy: The court discusses alleged violations of a fundamental rule of due process in the arbitration on the recognition and enforcement of an arbitral award, including the failure to communicate the names of the arbitrators, the failure to send copies of reports or letters filed in the arbitration, etc.

    Irregularities in the arbitral procedure (see also Art. V(1)(b))
  • Excerpt Topics
    AUSTRALIA 51

    A Judge of the Federal Court granted the application to enforce a Qatari award. Energy City, which had commenced the arbitration, had sought the appointment of the three-member arbitral tribunal by a Qatari court rather than following the procedure set out in the arbitration clause in the parties' contract. Hub Street had not participated in the arbitration. The Judge held on the facts of the case that Hub Street, contrary to its argument, had been given proper notice of the arbitration, as it had been aware of the application to the Qatari court for the appointment of the tribunal. The Judge also rejected Hub Street's claim that the appointment of the arbitrators and the constitution of the arbitral tribunal had not been in accordance with the agreement of the parties, finding that, since the contract was governed by Qatari law and the arbitration clause called for arbitration "in accordance with the rules of arbitration in Qatar", Energy City had been entitled under Qatari law to request the appointment of the arbitrators from a Qatari court. Hub Street's further objection that the language of the arbitration had not been in accordance with the agreement of the parties also failed, as the Judge found that even though Arabic had been used in the arbitral proceedings and for the drafting of the award, rather than English as required under the parties’ contract, other factual elements, such as the fact that the notices of the arbitration had been in English, led to conclude that there had been no prejudice to Hub Street. 

    Federal Court of Australia, 5 August 2020, File No. NSD 94 of 20

    (Energy City Qatar Holding Company v. Hub Street Equipment Pty Ltd (No 2)

    500A Residual power to enforce notwithstanding existence of ground for refusal
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    509

    Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.

    "Proper notice"
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    523

    Public policy: The court discusses alleged violations of a fundamental rule of due process in the arbitration on the recognition and enforcement of an arbitral award, including the failure to communicate the names of the arbitrators, the failure to send copies of reports or letters filed in the arbitration, etc.

    Irregularities in the arbitral procedure (see also Art. V(1)(b))
  • Excerpt Topics
    AUSTRALIA 50

    Australia No. 50. Pluto Shipowning Inc v. Able Glory Maritime Co Ltd, Federal Court of Australia, New South Wales Registry, General Division, NSD 2023 of 2018, 10 October 2019

    Australia No. 50. Pluto Shipowning Inc v. Able Glory Maritime Co Ltd, Federal Court of Australia, New South Wales Registry, General Division, NSD 2023 of 2018, 10 October 2019

    519

    Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.

    Ground a: Arbitrability
  • Excerpt Topics
    AUSTRALIA 49 B

    On 13 July 2018 (AUSTRALIA 49 A), the Federal Court granted the application to stay enforcement of a SIAC award pending an annulment action in Singapore and directed the respondent to provide security; adjournment was granted until November 2019, when the Singapore action was exptected to be heard. By the present decision, the Court granted leave to proceed with the enforcement action. This was necessary as a consequence of voluntary administrators having been appointed for the respondent. See also the later decision of 2 October 2018 *AUSTRALIA 49 C).

    Federal Court of Australia, New South Wales Registry, General Division,  13 September 2018 (Hyundai Engineering & Steel Industries Co Ltd v. Alfasi Steel Constructions (NSW) Pty Ltd (later: Two Ways Constructions Pty Ltd)

    601

    The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.

    Adjournment of decision on enforcement
    AUSTRALIA 49 A

    The Federal Court stayed enforcement of a SIAC award pending an annulment action in Singapore, directing the respondent to provide security until a date by which it could reasonably be thought that the Singapore proceeding would be heard -- November 2019. 

    See also Federal Court of Australia, New South Wales Registry, General Division, 13 September 2018 (Hyundai Engineering & Steel Industries Co Ltd v. Alfasi Steel Constructions (NSW) Pty Ltd (later: Two Ways Constructions Pty Ltd) AUSTRALIA 49 B

    and 

    Federal Court of Australia, New South Wales Registry, General Division, 2 October 2018 (Hyundai Engineering & Steel Industries Co Ltd v. Alfasi Steel Constructions (NSW) Pty Ltd (later: Two Ways Constructions Pty Ltd) AUSTRALIA 49 C

     

    Federal Court of Australia, 13 July 2018, NSD 976 of 2018

    (Hyundai Engineering & Steel Industries Co Ltd v. Alfasi Steel Constructions (later called Two Ways Constructions Pty Ltd))

    601

    The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.

    Adjournment of decision on enforcement
  • Excerpt Topics
    AUSTRALIA 48

    Australia 48. Sanum Investments Limited v. (1) ST Group Co., Ltd, (2) Sithat Xaysoulivong, (3) ST Vegas Co., Ltd and (4) S.T. Vegas Enterprise Ltd, Federal Court of Australia, New South Wales District Registry, 8 February 2017

    301

    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.

    Procedure for enforcement in general
  • Excerpt Topics
    AUSTRALIA 47

    Australia 47. Joseph Isaac Gutnick et al. v. Indian Farmers Fertiliser Cooperative Limited et al., Supreme Court of Victoria, Court of Appeal, 9 February 2016

    500A Residual power to enforce notwithstanding existence of ground for refusal
    502

    The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

    No re-examination of the merits of the arbitral award
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
  • Excerpt Topics
    AUSTRALIA 46 B

    See also Supreme Court of Victoria, Commercial Court, Arbitration List, 21 December 2015 (Indian Farmers Fertiliser Cooperative Limited et al. v. Kisan International Trading Fze et al.) AUSTRALIA 46 A

    Supreme Court of Victoria, Commercial Court, Arbitration List, 22 December 2015

    (Indian Farmers Fertiliser Cooperative Limited et al. v. Kisan International Trading Fze et al.) 

    500A Residual power to enforce notwithstanding existence of ground for refusal
    501

    The court discusses questions relating to the general approach taken by the Convention to the grounds for refusal of recognition and enforcement, including its pro-enforcement bias, as well as the system of the Convention, under which recognition and enforcement may only be denied on seven listed grounds and the petitioner has only the obligations set out in Art. IV.

    Grounds are exhaustive
    502

    The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

    No re-examination of the merits of the arbitral award
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    601

    The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.

    Adjournment of decision on enforcement
    AUSTRALIA 46 A

    See also Supreme Court of Victoria, Commercial Court, Arbitration List, 22 December 2015 (Indian Farmers Fertiliser Cooperative Limited et al. v. Kisan International Trading Fze et al.) AUSTRALIA 46 B

    Supreme Court of Victoria, Commercial Court, Arbitration List, 21 December 2015 

    (Indian Farmers Fertiliser Cooperative Limited et al. v. Kisan International Trading Fze et al.)

    500A Residual power to enforce notwithstanding existence of ground for refusal
    501

    The court discusses questions relating to the general approach taken by the Convention to the grounds for refusal of recognition and enforcement, including its pro-enforcement bias, as well as the system of the Convention, under which recognition and enforcement may only be denied on seven listed grounds and the petitioner has only the obligations set out in Art. IV.

    Grounds are exhaustive
    502

    The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

    No re-examination of the merits of the arbitral award
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    601

    The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.

    Adjournment of decision on enforcement
    AUSTRALIA 45

    Australia 45. Roy Hill Holdings Pty Ltd v. Samsung C&T Corporation, Supreme Court of Western Australia, Case No. CIV 2781 of 2015, 4 December 2015

    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    222

    The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

    Arbitrator's competence and separability of the arbitration clause
    223

    The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.

    Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
    AUSTRALIA 44 B

    See also Federal Court of Australia, General Division, New South Wales District Registry, 2 November 2015 (Johnson Ye v. Ronghuo Zeng (a/k/a Andrew Tsang) et al.) AUSTRALIA 44 A

    Federal Court of Australia, General Division, New South Wales District Registry, 13 November 2015

    (Johnson Ye v. Ronghuo Zeng (a/k/a Andrew Tsang) et al.)

    502

    The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

    No re-examination of the merits of the arbitral award
    516

    Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.

    "Set aside"
    601

    The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.

    Adjournment of decision on enforcement
    AUSTRALIA 44 A

    See also Federal Court of Australia, General Division, New South Wales District Registry, 13 November 2015 (Johnson Ye v. Ronghuo Zeng (a/k/a Andrew Tsang) et al.)  AUSTRALIA 44 B

    Federal Court of Australia, General Division, New South Wales District Registry, 2 November 2015

    (Johnson Ye v. Ronghuo Zeng (a/k/a Andrew Tsang) et al.)

    502

    The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

    No re-examination of the merits of the arbitral award
    516

    Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.

    "Set aside"
    601

    The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.

    Adjournment of decision on enforcement
    AUSTRALIA 43

    Australia 43. Aircraft Support Industries Pty Ltd v. William Hare UAE LLC, Supreme Court of New South Wales, Court of Appeal, 11 August 2015

    512A Partial enforcement (ultra petita)
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    AUSTRALIA 42 C

    See also Supreme Court of Victoria, Commercial Court, Arbitration List, 11 March 2015 (Giedo van der Garde BV et al. v. Sauber Motorsport AG) AUSTRALIA 42 A

    and

    Supreme Court of Victoria, Court of Appeal, 12 March 2015 (Giedo van der Garde BV et al. v. Sauber Motorsport AG) AUSTRALIA 42 B

    Supreme Court of Victoria, Commercial Court, Arbitration List, 27 March 2015

    (Giedo van der Garde BV et al. v. Sauber Motorsport AG)

    301

    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.

    Procedure for enforcement in general
    502

    The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

    No re-examination of the merits of the arbitral award
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    519

    Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.

    Ground a: Arbitrability
    523

    Public policy: The court discusses alleged violations of a fundamental rule of due process in the arbitration on the recognition and enforcement of an arbitral award, including the failure to communicate the names of the arbitrators, the failure to send copies of reports or letters filed in the arbitration, etc.

    Irregularities in the arbitral procedure (see also Art. V(1)(b))
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    AUSTRALIA 42 B

    See also Supreme Court of Victoria, Commercial Court, Arbitration List, 11 March 2015 (Giedo van der Garde BV et al. v. Sauber Motorsport AG) AUSTRALIA 42 A

    and

    Supreme Court of Victoria, Commercial Court, Arbitration List, 27 March 2015 (Giedo van der Garde BV et al. v. Sauber Motorsport AG) AUSTRALIA 42 C

    Supreme Court of Victoria, Court of Appeal, 12 March 2015 

    (Giedo van der Garde BV et al. v. Sauber Motorsport AG)

    301

    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.

    Procedure for enforcement in general
    502

    The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

    No re-examination of the merits of the arbitral award
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    519

    Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.

    Ground a: Arbitrability
    523

    Public policy: The court discusses alleged violations of a fundamental rule of due process in the arbitration on the recognition and enforcement of an arbitral award, including the failure to communicate the names of the arbitrators, the failure to send copies of reports or letters filed in the arbitration, etc.

    Irregularities in the arbitral procedure (see also Art. V(1)(b))
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    AUSTRALIA 42 A

    See also Supreme Court of Victoria, Court of Appeal, 12 March 2015 (Giedo van der Garde BV et al. v. Sauber Motorsport AG) AUSTRALIA 42 B

    and

    Supreme Court of Victoria, Commercial Court, Arbitration List, 27 March 2015 (Giedo van der Garde BV et al. v. Sauber Motorsport AG) AUSTRALIA 42 C

    Supreme Court of Victoria, Commercial Court, Arbitration List, 11 March 2015

    (Giedo van der Garde BV et al. v. Sauber Motorsport AG)

     

    301

    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.

    Procedure for enforcement in general
    502

    The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

    No re-examination of the merits of the arbitral award
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    519

    Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.

    Ground a: Arbitrability
    523

    Public policy: The court discusses alleged violations of a fundamental rule of due process in the arbitration on the recognition and enforcement of an arbitral award, including the failure to communicate the names of the arbitrators, the failure to send copies of reports or letters filed in the arbitration, etc.

    Irregularities in the arbitral procedure (see also Art. V(1)(b))
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    AUSTRALIA 41 B

    See also Supreme Court of Western Australia, 14 October 2014 (KNM Process Systems Sdn Bhd v. Mission NewEnergy Ltd formerly known as Mission Biofuels Ltd) AUSTRALIA 41 A

    Supreme Court of Western Australia, 30 January 2015

    (KNM Process Systems Sdn Bhd v. Mission NewEnergy Ltd formerly known as Mission Biofuels Ltd)

    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    226

    Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.

    Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
  • Excerpt Topics
    AUSTRALIA 40

    Australia 40. Supreme Court, New South Wales, 14 October 2014

    512A Partial enforcement (ultra petita)
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    AUSTRALIA 41 A

    See also Supreme Court of Western Australia, 30 January 2015, File no/S : CIV 1906 of 2014 (KNM Process Systems Sdn Bhd v. Mission NewEnergy Ltd formerly known as Mission Biofuels Ltd) AUSTRALIA 41 B

    Supreme Court of Western Australia, 14 October 2014, File no/S : CIV 1906 of 2014

    (KNM Process Systems Sdn Bhd v. Mission NewEnergy Ltd formerly known as Mission Biofuels Ltd)

    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    226

    Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.

    Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
    AUSTRALIA 39

    Australia 39. Federal Court of Australia, New South Wales District Registry, 17 June 2014

    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    514 Ground e: Award not binding, suspended or set aside - "Binding"
  • Excerpt Topics
    AUSTRALIA 38

    Australia 38. Federal Court of Australia, New South Wales District Registry, 19 April 2013

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    402

    The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.

    Original or copy arbitral award
    403

    The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.

    Original or copy arbitration agreement
    406

    The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.

    Translation (paragraph 2)
    501

    The court discusses questions relating to the general approach taken by the Convention to the grounds for refusal of recognition and enforcement, including its pro-enforcement bias, as well as the system of the Convention, under which recognition and enforcement may only be denied on seven listed grounds and the petitioner has only the obligations set out in Art. IV.

    Grounds are exhaustive
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
  • Excerpt Topics
    AUSTRALIA 37

    Australia 37. Federal Court of Australia, New South Wales District Registry, 29 June 2012

    303

    The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.

    Estoppel/waiver
    401

    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.

    Conditions to be fulfilled by petitioner in general
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    506

    Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.

    Law applicable to the arbitration agreement
    507

    Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.

    Miscellaneous cases regarding the arbitration agreement
  • Excerpt Topics
    AUSTRALIA 35 C

    See also Supreme Court of Victoria, Commercial and Equity Division, Commercial Court, 28 January 2011 (Altain Khuder LLC v. IMC Mining Inc, et al.) AUSTRALIA 35 A

    and

    Supreme Court of Victoria, Commercial and Equity Division, Commercial Court, 3 February 2011 (Altain Khuder LLC v. IMC Mining Inc, et al.) AUSTRALIA 35 B 

    Supreme Court of Victoria, Court of Appeal, 22 August 2011

    (IMC Aviation Solutions Pty Ltd v. Altain Khuder LLC)

    301

    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.

    Procedure for enforcement in general
    303

    The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.

    Estoppel/waiver
    401

    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.

    Conditions to be fulfilled by petitioner in general
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    507

    Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.

    Miscellaneous cases regarding the arbitration agreement
    509

    Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.

    "Proper notice"
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    523

    Public policy: The court discusses alleged violations of a fundamental rule of due process in the arbitration on the recognition and enforcement of an arbitral award, including the failure to communicate the names of the arbitrators, the failure to send copies of reports or letters filed in the arbitration, etc.

    Irregularities in the arbitral procedure (see also Art. V(1)(b))
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    AUSTRALIA 36

    Australia 36. Federal Court of Australia, New South Wales District Registry, General Division, 22 February 2011

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    301

    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.

    Procedure for enforcement in general
    304

    The court discusses the admissibility of a set off or counterclaim in enforcement proceedings under the Convention.

    Set-off/counterclaim
    502

    The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

    No re-examination of the merits of the arbitral award
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    507

    Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.

    Miscellaneous cases regarding the arbitration agreement
    509

    Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.

    "Proper notice"
    511

    Due process: The court discusses various irregularities affecting due process, including letters not sent, names of arbitrators or experts not communicated, language of proceedings and communications, etc.

    "Otherwise unable to present his case"
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    AUSTRALIA 35 B

    See also Supreme Court of Victoria, Commercial and Equity Division, Commercial Court, 28 January 2011 (Altain Khuder LLC v. IMC Mining Inc, et al.)

    and

    Supreme Court of Victoria, Court of Appeal, 22 August 2011 (IMC Aviation Solutions Pty Ltd v. Altain Khuder LLC)

    Supreme Court of Victoria, Commercial and Equity Division, Commercial Court,  3 February 2011

    (Altain Khuder LLC v. IMC Mining Inc, et al.) 

    301

    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.

    Procedure for enforcement in general
    303

    The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.

    Estoppel/waiver
    401

    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.

    Conditions to be fulfilled by petitioner in general
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    507

    Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.

    Miscellaneous cases regarding the arbitration agreement
    509

    Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.

    "Proper notice"
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    523

    Public policy: The court discusses alleged violations of a fundamental rule of due process in the arbitration on the recognition and enforcement of an arbitral award, including the failure to communicate the names of the arbitrators, the failure to send copies of reports or letters filed in the arbitration, etc.

    Irregularities in the arbitral procedure (see also Art. V(1)(b))
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    AUSTRALIA 35 A

    See also Supreme Court of Victoria, Commercial and Equity Division, Commercial Court, 3 February 2011 (Altain Khuder LLC v. IMC Mining Inc, et al.) AUSTRALIA 35 B

    and

    Supreme Court of Victoria, Court of Appeal, 22 August 2011 (IMC Aviation Solutions Pty Ltd v. Altain Khuder LLC) AUSTRALIA 35 C

    Supreme Court of Victoria, Commercial and Equity Division, Commercial Court, 28 January 2011

    (Altain Khuder LLC v. IMC Mining Inc, et al.)

    301

    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.

    Procedure for enforcement in general
    303

    The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.

    Estoppel/waiver
    401

    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.

    Conditions to be fulfilled by petitioner in general
    501

    The court discusses questions relating to the general approach taken by the Convention to the grounds for refusal of recognition and enforcement, including its pro-enforcement bias, as well as the system of the Convention, under which recognition and enforcement may only be denied on seven listed grounds and the petitioner has only the obligations set out in Art. IV.

    Grounds are exhaustive
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    507

    Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.

    Miscellaneous cases regarding the arbitration agreement
    509

    Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.

    "Proper notice"
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    523

    Public policy: The court discusses alleged violations of a fundamental rule of due process in the arbitration on the recognition and enforcement of an arbitral award, including the failure to communicate the names of the arbitrators, the failure to send copies of reports or letters filed in the arbitration, etc.

    Irregularities in the arbitral procedure (see also Art. V(1)(b))
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
  • Excerpt Topics
    AUSTRALIA 34

    Australia 34. Federal Court of Australia, New South Wales District Registry, General Division, 16 October 2009

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    221

    The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.

    Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
    222

    The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

    Arbitrator's competence and separability of the arbitration clause
    223

    The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.

    Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
  • Excerpt Topics
    AUSTRALIA 33

    Australia 33. Supreme Court, New South Wales, 7 July 2008

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    401

    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.

    Conditions to be fulfilled by petitioner in general
    404

    The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.

    Authentication and certification
    500

    The court discusses the overall scheme and/or pro-enforcement bias of the Convention.

    Grounds for refusal of enforcement in general
    504 Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
    AUSTRALIA 32

    Australia 32. Supreme Court of Western Australia, Court of Appeal, 13 May 2008

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
  • Excerpt Topics
    AUSTRALIA 31

    Australia 31. Federal Court of Australia, Queensland District Registry, 16 February 2007

    206

    The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.

    Exchange of letters or telegrams
  • Excerpt Topics
    AUSTRALIA 30 B

    See also Federal Court of Australia, New South Wales District Registry, 22 August 2006 (Pan Australia Shipping Pty Ltd v. The Ship COMANDATE (NO 2)) AUSTRALIA 30 A

    Federal Court of Australia, New South Wales District Registry, 20 December 2006

    (Pan Australia Shipping Pty Ltd v. The Ship COMANDATE (NO 2))

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    206

    The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.

    Exchange of letters or telegrams
    208

    The court discusses arbitration agreements contained in a sales and purchase confirmation and whether a tacit acceptance thereof is sufficient.

    Sales or purchase confirmation
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    222

    The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

    Arbitrator's competence and separability of the arbitration clause
    223

    The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.

    Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
    AUSTRALIA 30 A

    See also Federal Court of Australia, New South Wales District Registry, 20 December 2006 (Pan Australia Shipping Pty Ltd v. The Ship COMANDATE (NO 2)) AUSTRALIA 30 B

    Federal Court of Australia, New South Wales District Registry, 22 August 2006

    (Pan Australia Shipping Pty Ltd v. The Ship COMANDATE (NO 2))

    001

    The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006. 

    Interpretation of the Convention
    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    206

    The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.

    Exchange of letters or telegrams
    208

    The court discusses arbitration agreements contained in a sales and purchase confirmation and whether a tacit acceptance thereof is sufficient.

    Sales or purchase confirmation
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    222

    The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

    Arbitrator's competence and separability of the arbitration clause
    223

    The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.

    Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
  • Excerpt Topics
    AUSTRALIA 29

    Australia 29. Supreme Court of Victoria, Commercial and Equity Division, 31 August 2005

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    214-216 Field of application
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    AUSTRALIA 28

    Australia 28. Federal Court of Australia, New South Wales District Registry, 15 August 2005

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    222

    The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

    Arbitrator's competence and separability of the arbitration clause
    AUSTRALIA 27

    Australia 27. Supreme Court of Victoria, Commercial and Equity Division, Commercial List, 30 May 2005

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    218

    The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.

    Referral is mandatory
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    223

    The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.

    Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
    AUSTRALIA 26

    Australia 26. Supreme Court of New South Wales, Equity Division, Commercial List, 17 March 2005

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    301

    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.

    Procedure for enforcement in general
    401

    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.

    Conditions to be fulfilled by petitioner in general
    403

    The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.

    Original or copy arbitration agreement
    704

    More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.

    European Convention of 1961
  • Excerpt Topics
    AUSTRALIA 25

    Australia 25. Supreme Court of New South Wales, Equity Division, Commercial List, 29 July 2004

    301

    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.

    Procedure for enforcement in general
    302

    The court discusses the availability of discovery in order to prove grounds for refusal of enforcement.

    Discovery of evidence
    303

    The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.

    Estoppel/waiver
  • Excerpt Topics
    AUSTRALIA 24 B

    Supreme Court of Tasmania, 22 November 2002

    (Origin Energy Resources Limited v. Benaris International N.V., et al.)

    See also Supreme Court of Tasmania, 14 August 2002, AUSTRALIA 24 A

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    218

    The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.

    Referral is mandatory
    222

    The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

    Arbitrator's competence and separability of the arbitration clause
    223

    The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.

    Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
    AUSTRALIA 23

    Australia 23. Supreme Court of New South Wales, 4 October 2002

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    214-216 Field of application
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    223

    The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.

    Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
    AUSTRALIA 21

    Australia 21. Supreme Court of Victoria, Melbourne, Commercial and Equity Division, 6 September 2002

    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    218

    The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.

    Referral is mandatory
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    AUSTRALIA 24 A

    See also Supreme Court of Tasmania, 22 November 2002, AUSTRALIA 24 B

    Supreme Court of Tasmania, 14 August 2002

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    218

    The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.

    Referral is mandatory
    222

    The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

    Arbitrator's competence and separability of the arbitration clause
    223

    The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.

    Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
  • Excerpt Topics
    AUSTRALIA 20

    Australia 20. Supreme Court of Victoria at Melbourne, Commercial and Equity Division, 20 December 2000

    516

    Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.

    "Set aside"
    601

    The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.

    Adjournment of decision on enforcement
    AUSTRALIA 19

    Australia 19. Supreme Court of Queensland, Court of Appeal Division, 27 June 2000

    110

    The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.

    Arbitral award: types
    504 Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
  • Excerpt Topics
    AUSTRALIA 18

    Australia 18. Supreme Court of Queensland, Court of Appeal Division, 23 February 1999

    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    218

    The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.

    Referral is mandatory
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    AUSTRALIA 22

    Australia 22. Supreme Court of New South Wales, Commercial Division, 10 June 1999

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    601

    The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.

    Adjournment of decision on enforcement
  • Excerpt Topics
    AUSTRALIA 16

    Australia 16. Supreme Court of Victoria, Causes Jurisdiction, 16 October 1998

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    218

    The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.

    Referral is mandatory
    226

    Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.

    Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
    227

    Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.

    Concurrent court proceedings ("indivisibility")
    AUSTRALIA 17

    Australia 17. Supreme Court of Queensland, Court of Appeal, 6 May 1998

    227

    Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.

    Concurrent court proceedings ("indivisibility")
    AUSTRALIA 15

    Australia 15. Supreme Court of New South Wales, Commercial Division, 26 March 1998

    102

    The court discusses which awards are considered non-domestic even if rendered in the State of enforcement (international element, lex mercatoria).

    Arbitral award not considered as domestic (paragraph 1)
    202

    The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.

    Contents of arbitration agreement
    214-216 Field of application
    514 Ground e: Award not binding, suspended or set aside - "Binding"
  • Excerpt Topics
    AUSTRALIA 14

    Australia 14. District Court of Cairns, Civil Jurisdiction, 14 July 1997

    219

    The court discusses how to determine that there is a dispute as a condition for referral to arbitration.

    There must be a dispute
    227

    Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.

    Concurrent court proceedings ("indivisibility")
    AUSTRALIA 13

    Australia 13. Federal Court of Australia, New South Wales District Registry, General Division in Admiralty, 30 June 1997

    113

    The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.

    Implementing legislation
    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    214-216 Field of application
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    219

    The court discusses how to determine that there is a dispute as a condition for referral to arbitration.

    There must be a dispute
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    223

    The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.

    Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
    228

    Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.

    Pre-award attachment and other provisional measures
  • Excerpt Topics
    AUSTRALIA 12

    Australia 12. Supreme Court of New South Wales, Commercial Division, 6 August 1996

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    214-216 Field of application
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    218

    The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.

    Referral is mandatory
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    221

    The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.

    Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
    222

    The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

    Arbitrator's competence and separability of the arbitration clause
  • Excerpt Topics
    AUSTRALIA 11

    Australia 11. Supreme Court of Queensland, 29 October 1993

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    104

    The court discusses whether the Convention applies to domestic arbitration and to proceedings for the setting aside of domestic awards. 

    Convention's applicability in other cases
    110

    The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.

    Arbitral award: types
    111

    The court discusses the application of the Convention to awards rendered by permanent arbitral bodies (as opposed to ad hoc awards).

    Permanent arbitral bodies (paragraph 2)
    222

    The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

    Arbitrator's competence and separability of the arbitration clause
    227

    Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.

    Concurrent court proceedings ("indivisibility")
    500

    The court discusses the overall scheme and/or pro-enforcement bias of the Convention.

    Grounds for refusal of enforcement in general
    501

    The court discusses questions relating to the general approach taken by the Convention to the grounds for refusal of recognition and enforcement, including its pro-enforcement bias, as well as the system of the Convention, under which recognition and enforcement may only be denied on seven listed grounds and the petitioner has only the obligations set out in Art. IV.

    Grounds are exhaustive
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    509

    Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.

    "Proper notice"
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    514 Ground e: Award not binding, suspended or set aside - "Binding"
    516

    Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.

    "Set aside"
    520

    Public policy:The court discusses the consequences of the default of a party in the arbitration on the recognition and enforcement of an arbitral award against it.

    Ground b: Public policy - Default of party
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    AUSTRALIA 10

    Australia 10. Supreme Court of New South Wales, Admiralty Division, 19 July 1993

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    214-216 Field of application
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    218

    The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.

    Referral is mandatory
  • Excerpt Topics
    AUSTRALIA 9

    Australia 9. Supreme Court of New South Wales, Common Law Division, 14 August 1992

    226

    Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.

    Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
  • Excerpt Topics
    AUSTRALIA 8

    Australia 8. Federal Court of Australia, New South Wales District Registry, General Division in Admiralty, 5 June 1991

    214-216 Field of application
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
  • Excerpt Topics
    AUSTRALIA 7

    Australia 7. Federal Court of Australia, New South Wales District Registry, General Division, 11 April 1990

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    214-216 Field of application
    218

    The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.

    Referral is mandatory
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    223

    The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.

    Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
    227

    Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.

    Concurrent court proceedings ("indivisibility")
    AUSTRALIA 6 B

    An AAA award had established, inter alia, that Hawaiian had failed to timely pay for goods received under a license agreement. Tanning had then lodged a proof of debt with the liquidator of Hawaiian, which had been wound up, but the liquidator had rejected Tanning’s proof of debt. The court of appeal had held the proceedings should be stayed pursuant to Section 7(2) of the International Arbitration Act 1974 and the matter referred to arbitration. The High Court dismissed Tanning’s appeal from that decision, finding that the liquidator was a person claiming “through or under” Hawaiian within the meaning of Section 7(2). It reasoned that to exclude from the scope of an international arbitration agreement binding on a company matters between the other party to that agreement and the company’s liquidator would give such agreements an uncertain operation.

    See also High Court of Australia, 13-14 September 1989  (Tanning Research Laboratories Inc. v. O’Brien) AUSTRALIA 6 A

    High Court of Australia, 6 March 1990

    (Tanning Research Laboratories Inc. v. O’Brien)

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
  • Excerpt Topics
    AUSTRALIA 6 A

    An AAA award had established, inter alia, that Hawaiian had failed to timely pay for goods received under a license agreement. Tanning had then lodged a proof of debt with the liquidator of Hawaiian, which had been wound up, but the liquidator had rejected Tanning’s proof of debt. The court of appeal held the proceedings should be stayed pursuant to Section 7(2) of the International Arbitration Act 1974 and the matter referred to arbitration. By the present decision, the High Court dismissed Tanning’s appeal, finding that the liquidator was a person claiming “through or under” Hawaiian within the meaning of Section 7(2). It reasoned that to exclude from the scope of an international arbitration agreement binding on a company matters between the other party to that agreement and the company’s liquidator would give such agreements an uncertain operation.

    See also High Court of Australia, 6 March 1990 (Tanning Research Laboratories Inc. v. O’Brien) AUSTRALIA 6 A

    High Court of Australia, 13-14 September 1989 (Tanning Research Laboratories Inc. v. O’Brien)

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
  • Excerpt Topics
    AUSTRALIA 5

    Australia 5. Supreme Court of New South Wales, Commercial Division, 17 October 1988

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    515

    Award not binding, suspended or set aside: The court discusses the conditions under which an award that has merged into a court judgment in the country of origin can still be enforced as an award under the Convention, and whether a decision granting recognition under the Convention can be enforced as a foreign court judgment in a third country.

    Merger of award into judgment
  • Excerpt Topics
    AUSTRALIA 3

    Australia 3. Supreme Court of New South Wales, Common Law Division, 28 March 1984

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    214-216 Field of application
    218

    The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.

    Referral is mandatory
    223

    The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.

    Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
    AUSTRALIA 4

    Australia 4. Supreme Court of Queensland, 16 March 1984

    301

    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.

    Procedure for enforcement in general
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
  • Excerpt Topics
    AUSTRALIA 2

    Australia 2. Federal Court of Australia, General Division, 21 December 1983

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    214-216 Field of application
    223

    The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.

    Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
  • Excerpt Topics
    AUSTRALIA 1

    Australia 1. Supreme Court Of New South Wales, Equity Divison, 5 September 1979

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    218

    The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.

    Referral is mandatory
    223

    The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.

    Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)