Part IIIInternational Commercial Arbitration

An Act relating to the recognition and enforcement of foreign arbitral awards, and the conduct of international commercial arbitrations, in Australia, and for related purposes ## Part I—Preliminary #### 1 Short title of Principal Act This Act may be cited as the International Arbitration Act 1974. #### 2 Commencement (1) Sections 1, 2 and 3 shall come into operation on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act shall come into operation on a date to be fixed by Proclamation, being a date not earlier than the date on which the Convention enters into force for Australia. #### 2A Territories This Act extends to all external Territories. #### 2B Act binds the Crown This Act binds the Crown in each of its capacities. #### 2C Carriage of goods by sea Nothing in this Act affects: (a) the continued operation of section 9 of the Sea‑Carriage of Goods Act 1924 under subsection 20(2) of the Carriage of Goods by Sea Act 1991; or (b) the operation of section 11 or 16 of the Carriage of Goods by Sea Act 1991. #### 2D Objects of this Act The objects of this Act are: (a) to facilitate international trade and commerce by encouraging the use of arbitration as a method of resolving disputes; and (b) to facilitate the use of arbitration agreements made in relation to international trade and commerce; and (c) to facilitate the recognition and enforcement of arbitral awards made in relation to international trade and commerce; and (d) to give effect to Australia’s obligations under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in 1958 by the United Nations Conference on International Commercial Arbitration at its twenty‑fourth meeting; and (e) to give effect to the UNCITRAL Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985 and amended by the United Nations Commission on International Trade Law on 7 July 2006; and (f) to give effect to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States signed by Australia on 24 March 1975. ## Part II—Enforcement of foreign arbitration agreements and awards #### 3 Interpretation (1) In this Part, unless the contrary intention appears: > agreement in writing has the same meaning as in the Convention. > arbitral award has the same meaning as in the Convention. > arbitration agreement means an agreement in writing of the kind referred to in sub‑article 1 of Article II of the Convention. > Australia includes the Territories. > Convention means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in 1958 by the United Nations Conference on International Commercial Arbitration at its twenty‑fourth meeting, a copy of the English text of which is set out in Schedule 1. > Convention country means a country (other than Australia) that is a Contracting State within the meaning of the Convention. > Convention on Transparency means the United Nations Convention on Transparency in Treaty‑based Investor‑State Arbitration, done at Mauritius on 10 December 2014. > court means any court in Australia, including, but not limited to, the Federal Court of Australia and a court of a State or Territory. > data message means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), email, telegram, telex or telecopy. > electronic communication means any communication made by means of data messages. > Foreign Affairs Department means the Department administered by the Minister administering the Diplomatic Privileges and Immunities Act 1967. > foreign award means an arbitral award made, in pursuance of an arbitration agreement, in a country other than Australia, being an arbitral award in relation to which the Convention applies. > Transparency Rules means the United Nations Commission on International Trade Law Rules on Transparency in Treaty‑based Investor‑State Arbitration. (2) In this Part, where the context so admits, enforcement, in relation to a foreign award, includes the recognition of the award as binding for any purpose, and enforce and enforced have corresponding meanings. (3) For the purposes of this Part, a body corporate shall be taken to be ordinarily resident in a country if, and only if, it is incorporated or has its principal place of business in that country. (4) For the avoidance of doubt and without limiting subsection (1), an agreement is in writing if: (a) its content is recorded in any form whether or not the agreement or the contract to which it relates has been concluded orally, by conduct, or by other means; or (b) it is contained in an electronic communication and the information in that communication is accessible so as to be usable for subsequent reference; or (c) it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other. (5) For the avoidance of doubt and without limiting subsection (1), a reference in a contract to any document containing an arbitration clause is an arbitration agreement, provided that the reference is such as to make the clause part of the contract. #### 7 Enforcement of foreign arbitration agreements (1) Where: (a) the procedure in relation to arbitration under an arbitration agreement is governed, whether by virtue of the express terms of the agreement or otherwise, by the law of a Convention country; (b) the procedure in relation to arbitration under an arbitration agreement is governed, whether by virtue of the express terms of the agreement or otherwise, by the law of a country not being Australia or a Convention country, and a party to the agreement is Australia or a State or a person who was, at the time when the agreement was made, domiciled or ordinarily resident in Australia; (c) a party to an arbitration agreement is the Government of a Convention country or of part of a Convention country or the Government of a territory of a Convention country, being a territory to which the Convention extends; or (d) a party to an arbitration agreement is a person who was, at the time when the agreement was made, domiciled or ordinarily resident in a country that is a Convention country; this section applies to the agreement. (2) Subject to this Part, where: (a) proceedings instituted by a party to an arbitration agreement to which this section applies against another party to the agreement are pending in a court; and (b) the proceedings involve the determination of a matter that, in pursuance of the agreement, is capable of settlement by arbitration; on the application of a party to the agreement, the court shall, by order, upon such conditions (if any) as it thinks fit, stay the proceedings or so much of the proceedings as involves the determination of that matter, as the case may be, and refer the parties to arbitration in respect of that matter. (3) Where a court makes an order under subsection (2), it may, for the purpose of preserving the rights of the parties, make such interim or supplementary orders as it thinks fit in relation to any property that is the subject of the matter to which the first‑mentioned order relates. (4) For the purposes of subsections (2) and (3), a reference to a party includes a reference to a person claiming through or under a party. (5) A court shall not make an order under subsection (2) if the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed. #### 8 Recognition of foreign awards (1) Subject to this Part, a foreign award is binding by virtue of this Act for all purposes on the parties to the award. (2) Subject to this Part, a foreign award may be enforced in a court of a State or Territory as if the award were a judgment or order of that court. (3) Subject to this Part, a foreign award may be enforced in the Federal Court of Australia as if the award were a judgment or order of that court. > Note: For the enforcement of a foreign award against a foreign State, or a separate entity of a foreign State, see the Foreign States Immunities Act 1985. (3A) The court may only refuse to enforce the foreign award in the circumstances mentioned in subsections (5) and (7). (5) Subject to subsection (6), in any proceedings in which the enforcement of a foreign award by virtue of this Part is sought, the court may, at the request of the party against whom it is invoked, refuse to enforce the award if that party proves to the satisfaction of the court that: (a) a party to the arbitration agreement in pursuance of which the award was made was, under the law applicable to him or her, under some incapacity at the time when the agreement was made; or (b) the arbitration agreement is not valid under the law expressed in the agreement to be applicable to it or, where no law is so expressed to be applicable, under the law of the country where the award was made; or (c) that party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his or her case in the arbitration proceedings; or (d) the award deals with a difference not contemplated by, or not falling within the terms of, the submission to arbitration, or contains a decision on a matter beyond the scope of the submission to arbitration; or (e) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (f) the award has not yet become binding on the parties to the award or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made. (6) Where an award to which paragraph (5)(d) applies contains decisions on matters submitted to arbitration and those decisions can be separated from decisions on matters not so submitted, that part of the award which contains decisions on matters so submitted may be enforced. (7) In any proceedings in which the enforcement of a foreign award by virtue of this Part is sought, the court may refuse to enforce the award if it finds that: (a) the subject matter of the difference between the parties to the award is not capable of settlement by arbitration under the laws in force in the State or Territory in which the court is sitting; or (b) to enforce the award would be contrary to public policy. (7A) To avoid doubt and without limiting paragraph (7)(b), the enforcement of a foreign award would be contrary to public policy if: (a) the making of the award was induced or affected by fraud or corruption; or (b) a breach of the rules of natural justice occurred in connection with the making of the award. (8) Where, in any proceedings in which the enforcement of a foreign award by virtue of this Part is sought, the court is satisfied that an application for the setting aside or suspension of the award has been made to a competent authority of the country in which, or under the law of which, the award was made, the court may, if it considers it proper to do so, adjourn the proceedings, or so much of the proceedings as relates to the award, as the case may be, and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security. (9) A court may, if satisfied of any of the matters mentioned in subsection (10), make an order for one or more of the following: (a) for proceedings that have been adjourned, or that part of the proceedings that has been adjourned, under subsection (8) to be resumed; (b) for costs against the person who made the application for the setting aside or suspension of the foreign award; (c) for any other order appropriate in the circumstances. (10) The matters are: (a) the application for the setting aside or suspension of the award is not being pursued in good faith; and (b) the application for the setting aside or suspension of the award is not being pursued with reasonable diligence; and (c) the application for the setting aside or suspension of the award has been withdrawn or dismissed; and (d) the continued adjournment of the proceedings is, for any reason, not justified. (11) An order under subsection (9) may only be made on the application of a party to the proceedings that have, or a part of which has, been adjourned. #### 9 Evidence of awards and arbitration agreements (1) In any proceedings in which a person seeks the enforcement of a foreign award by virtue of this Part, he or she shall produce to the court: (a) the duly authenticated original award or a duly certified copy; and (b) the original arbitration agreement under which the award purports to have been made or a duly certified copy. (2) For the purposes of subsection (1), an award shall be deemed to have been duly authenticated, and a copy of an award or agreement shall be deemed to have been duly certified, if: (a) it purports to have been authenticated or certified, as the case may be, by the arbitrator or, where the arbitrator is a tribunal, by an officer of that tribunal, and it has not been shown to the court that it was not in fact so authenticated or certified; or (b) it has been otherwise authenticated or certified to the satisfaction of the court. (3) If a document or part of a document produced under subsection (1) is written in a language other than English, there shall be produced with the document a translation, in the English language, of the document or that part, as the case may be, certified to be a correct translation. (4) For the purposes of subsection (3), a translation shall be certified by a diplomatic or consular agent in Australia of the country in which the award was made or otherwise to the satisfaction of the court. (5) A document produced to a court in accordance with this section is, upon mere production, receivable by the court as prima facie evidence of the matters to which it relates. #### 10 Evidence relating to Convention (1) For the purposes of this Part, a certificate purporting to be signed by the Secretary of the Foreign Affairs Department and stating that a country specified in the certificate is, or was at a time so specified, a Convention country is, upon mere production, receivable in any proceedings as prima facie evidence of that fact. (2) For the purposes of this Part, a copy of the Gazette containing a Proclamation fixing a date under subsection 2(2) is, upon mere production, receivable in any proceedings as prima facie evidence of: (a) the fact that Australia has acceded to the Convention; and (b) the fact that the Convention entered into force for Australia on or before the date so fixed. #### 10A Delegation by Secretary of the Foreign Affairs Department (1) The Secretary may, either generally or as otherwise provided by the instrument of delegation, in writing, delegate to the person occupying a specified office in the Foreign Affairs Department and Trade all or any of the Secretary’s powers under subsection 10(1). (2) A power delegated under subsection (1) shall, when exercised by the delegate, be deemed to have been exercised by the Secretary. (3) The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Secretary. (4) The delegation of a power under subsection (1) does not prevent the exercise of the power by the Secretary. (5) In this section, Secretary means the Secretary of the Foreign Affairs Department and Trade. #### 12 Effect of this Part on other laws (1) This Part applies to the exclusion of any provisions made by a law of a State or Territory with respect to the recognition of arbitration agreements and the enforcement of foreign awards, being provisions that operate in whole or in part by reference to the Convention. (2) Except as provided in subsection (1), nothing in this Part affects the right of any person to the enforcement of a foreign award otherwise than in pursuance of this Act. #### 13 Judiciary Act A matter arising under this Part, including a question of interpretation of the Convention for the purposes of this Act, shall, for the purposes of section 38 of the Judiciary Act 1903‑1973, be deemed not to be a matter arising directly under a treaty. #### 14 Application of Part The application of this Part extends to agreements and awards made before the date fixed under subsection 2(2), including agreements and awards made before the day referred to in subsection 2(1). ## Part III—International Commercial Arbitration ### Division 1—Preliminary #### 15 Interpretation (1) In this Part: > confidential information, in relation to arbitral proceedings, means information that relates to the proceedings or to an award made in the proceedings and includes: (a) the statement of claim, statement of defence, and all other pleadings, submissions, statements, or other information supplied to the arbitral tribunal by a party to the proceedings; and (b) any evidence (whether documentary or other) supplied to the arbitral tribunal; and (c) any notes made by the arbitral tribunal of oral evidence or submissions given before the arbitral tribunal; and (d) any transcript of oral evidence or submissions given before the arbitral tribunal; and (e) any rulings of the arbitral tribunal; and (f) any award of the arbitral tribunal. > disclose, in relation to confidential information, includes giving or communicating the confidential information in any way. > Model Law means the UNCITRAL Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985 and amended by the United Nations Commission on International Trade Law on 7 July 2006, the English text of which is set out in Schedule 2. (2) Except so far as the contrary intention appears, a word or expression that is used both in this Part and in the Model Law (whether or not a particular meaning is given to it by the Model Law) has, in this Part, the same meaning as it has in the Model Law. ### Division 2—Model Law #### 16 Model Law to have force of law (1) Subject to this Part, the Model Law has the force of law in Australia. (2) In the Model Law: > arbitration agreement has the meaning given in Option 1 of Article 7 of the Model Law. > State means Australia (including the external Territories) and any foreign country. > this State means Australia (including the external Territories). #### 17 Interpretation of Model Law—use of extrinsic material (1) For the purposes of interpreting the Model Law, reference may be made to the documents of: (a) the United Nations Commission on International Trade Law; and (b) its working group for the preparation of the Model Law; relating to the Model Law. (2) Subsection (1) does not affect the application of section 15AB of the Acts Interpretation Act 1901 for the purposes of interpreting this Part. #### 18 Courts and authorities in the Model Law (1) A court or authority prescribed for the purposes of this subsection is taken to have been specified in Article 6 of the Model Law as a court or authority competent to perform the functions referred to in Article 11(3) of the Model Law. (2) A court or authority prescribed for the purposes of this subsection is taken to have been specified in Article 6 of the Model Law as a court or authority competent to perform the functions referred to in Article 11(4) of the Model Law. (3) The following courts are taken to have been specified in Article 6 of the Model Law as courts competent to perform the functions referred to in Articles 13(3), 14, 16(3) and 34(2) of the Model Law: (a) if the place of arbitration is, or is to be, in a State—the Supreme Court of that State; (b) if the place of arbitration is, or is to be, in a Territory: (i) the Supreme Court of that Territory; or (ii) if there is no Supreme Court established in that Territory—the Supreme Court of the State or Territory that has jurisdiction in relation to that Territory; (c) in any case—the Federal Court of Australia. (4) The following courts are taken to be competent courts for the purposes of Articles 17H (including Article 17H(3)), 27, 35 and 36 of the Model Law: (a) if the event referred to in subsection (5) is to occur in a State—the Supreme Court of that State; (b) if the event referred to in subsection (5) is to occur in a Territory: (i) the Supreme Court of that Territory; or (ii) if there is no Supreme Court established in that Territory—the Supreme Court of the State or Territory that has jurisdiction in relation to that Territory; (c) in any case—the Federal Court of Australia. (5) For the purposes of subsection (4), the event is: (a) for Article 17H—the recognition or enforcement of an interim measure; or (b) for Article 27—the taking of evidence; or (c) for Articles 35 and 36—the recognition or enforcement of an arbitral award. #### 18A Article 12—justifiable doubts as to the impartiality or independence of an arbitrator (1) For the purposes of Article 12(1) of the Model Law, there are justifiable doubts as to the impartiality or independence of a person approached in connection with a possible appointment as arbitrator only if there is a real danger of bias on the part of that person in conducting the arbitration. (2) For the purposes of Article 12(2) of the Model Law, there are justifiable doubts as to the impartiality or independence of an arbitrator only if there is a real danger of bias on the part of the arbitrator in conducting the arbitration. #### 18B Article 17B—preliminary orders Despite Article 17B of the Model Law: (a) no party to an arbitration agreement may make an application for a preliminary order directing another party not to frustrate the purpose of an interim measure requested; and (b) no arbitral tribunal may grant such a preliminary order. #### 18C Article 18—reasonable opportunity to present case For the purposes of Article 18 of the Model Law, a party to arbitral proceedings is taken to have been given a full opportunity to present the party’s case if the party is given a reasonable opportunity to present the party’s case. #### 19 Articles 17I, 34 and 36 of Model Law—public policy Without limiting the generality of Articles 17I(1)(b)(ii), 34(2)(b)(ii) and 36(1)(b)(ii) of the Model Law, it is declared, for the avoidance of any doubt, that, for the purposes of those Articles, an interim measure or award is in conflict with, or is contrary to, the public policy of Australia if: (a) the making of the interim measure or award was induced or affected by fraud or corruption; or (b) a breach of the rules of natural justice occurred in connection with the making of the interim measure or award. #### 20 Chapter VIII of Model Law not to apply in certain cases Where, but for this section, both Chapter VIII of the Model Law and Part II of this Act would apply in relation to an award, Chapter VIII of the Model Law does not apply in relation to the award. #### 21 Model Law covers the field (1) If the Model Law applies to an arbitration, the law of a State or Territory relating to arbitration does not apply to that arbitration. (2) Subsection (1) applies to an arbitration commenced on or after the commencement of this subsection, whether the arbitration agreement giving rise to the arbitration was made before, on or after 6 July 2010. > Note: The provision that is now subsection (1) commenced on 6 July 2010. ### Division 3—Additional provisions #### 22 Application of additional provisions Application to arbitration under Model Law (1) This Division applies to any arbitration to which the Model Law applies. Application of sections other than section 23H and 24 (2) Each of the following sections applies (subject to subsection (3)) to arbitral proceedings commenced in reliance on an arbitration agreement unless the parties to the agreement agree (whether in the agreement or otherwise in writing) that it will not apply: (a) section 23; (b) section 23A; (c) section 23B; (ca) section 23C; (cb) section 23D; (cc) section 23E; (cd) section 23F; (ce) section 23G; (d) section 23J; (e) section 23K; (f) section 25; (g) section 26; (h) section 27. (3) Sections 23C to 23G (disclosure of confidential information) do not apply to arbitral proceedings to which the Transparency Rules apply, whether those Rules apply because of the operation of the Convention on Transparency or otherwise. Application of section 23H (4) Section 23H applies on the death of a party to an arbitration agreement unless the parties to the agreement agree (whether in the agreement or otherwise in writing) that it will not apply. Application of section 24 (5) Section 24 applies to arbitral proceedings commenced in reliance on an arbitration agreement if the parties to the agreement agree (whether in the agreement or otherwise in writing) that it will apply. #### 22A Interpretation In this Division: > court means: (a) in relation to arbitral proceedings that are, or are to be, conducted in a State—the Supreme Court of that State; and (b) in relation to arbitral proceedings that are, or are to be, conducted in a Territory: (i) the Supreme Court of the Territory; or (ii) if there is no Supreme Court established in that Territory—the Supreme Court of the State or Territory that has jurisdiction in relation to that Territory; and (c) in any case—the Federal Court of Australia. #### 23 Parties may obtain subpoenas (1) A party to arbitral proceedings commenced in reliance on an arbitration agreement may apply to a court to issue a subpoena under subsection (3). (2) However, this may only be done with the permission of the arbitral tribunal conducting the arbitral proceedings. (3) The court may, for the purposes of the arbitral proceedings, issue a subpoena requiring a person to do either or both of the following: (a) to attend for examination before the arbitral tribunal; (b) to produce to the arbitral tribunal the documents specified in the subpoena. (4) A person must not be compelled under a subpoena issued under subsection (3) to answer any question or produce any document which that person could not be compelled to answer or produce in a proceeding before that court. (5) The court must not issue a subpoena under subsection (3) to a person who is not a party to the arbitral proceedings unless the court is satisfied that it is reasonable in all the circumstances to issue it to the person. (6) Nothing in this section limits Article 27 of the Model Law. #### 23A Failure to assist arbitral tribunal (1) A party to arbitral proceedings commenced in reliance on an arbitration agreement may apply to a court for an order under subsection (3) if a person: (a) refuses or fails to attend before the arbitral tribunal conducting the arbitral proceedings for examination when required to do so under a subpoena issued under subsection 23(3); or (b) refuses or fails to attend before the arbitral tribunal when required to do so by the arbitral tribunal; or (c) refuses or fails to produce a document that the person is required to produce under a subpoena issued under subsection 23(3); or (d) refuses or fails to produce a document that the person is required to produce by the arbitral tribunal; or (e) appearing as a witness before the arbitral tribunal: (i) refuses or fails to take an oath or to make an affirmation or affidavit when required by the arbitral tribunal to do so; or (ii) refuses or fails to answer a question that the witness is required by the arbitral tribunal to answer; or (f) refuses or fails to do any other thing which the arbitral tribunal may require to assist the arbitral tribunal in the performance of its functions. (2) However, an application may only be made under paragraph (1)(b), (d), (e) or (f) with the permission of the arbitral tribunal. (3) The court may, for the purposes of the arbitral proceedings, order: (a) the person to attend before the court for examination or to produce to the court the relevant document or to do the relevant thing; and (b) the person, or any other person, to transmit to the arbitral tribunal one or more of the following: (i) a record of any evidence given in compliance with the order; (ii) any document produced in compliance with the order, or a copy of the document; (iii) particulars of any other thing done in compliance with the order. (4) A person must not be compelled under an order made under subsection (3) to answer any question or produce any document which that person could not be compelled to answer or produce in a proceeding before that court. (5) The court must not make an order under subsection (3) in relation to a person who is not a party to the arbitral proceedings unless: (a) before the order is made, the person is given an opportunity to make representations to the court; and (b) the court is satisfied that it is reasonable in all the circumstances to make the order in relation to the person. (6) Nothing in this section limits Article 27 of the Model Law. #### 23B Default by party to an arbitration agreement (1) This section applies if a party to arbitral proceedings commenced in reliance on an arbitration agreement: (a) refuses or fails to attend before an arbitral tribunal for examination when required to do so under a subpoena issued under subsection 23(3) (regardless of whether an application is made for an order under subsection 23A(3)); or (b) refuses or fails to produce a document to an arbitral tribunal when required to do so under a subpoena issued under subsection 23(3) (regardless of whether an application is made for an order under subsection 23A(3)); or (c) refuses or fails to comply with an order made by a court under subsection 23A(3); or (d) fails within the time specified by an arbitral tribunal, or if no time is specified within a reasonable time, to comply with any other requirement made by the arbitral tribunal to assist it in the performance of its functions. (2) The arbitral tribunal may continue with the arbitration proceedings in default of appearance or of the other act and make an award on the evidence before it. (3) Nothing in this provision affects any other power which the arbitral tribunal or a court may have in relation to the refusal or failure. #### 23C Disclosure of confidential information (1) The parties to arbitral proceedings commenced in reliance on an arbitration agreement must not disclose confidential information in relation to the arbitral proceedings unless: (a) the disclosure is allowed under section 23D; or (b) the disclosure is allowed under an order made under section 23E and no order is in force under section 23F prohibiting that disclosure; or (c) the disclosure is allowed under an order made under section 23G. (2) An arbitral tribunal must not disclose confidential information in relation to arbitral proceedings commenced in reliance on an arbitration agreement unless: (a) the disclosure is allowed under section 23D; or (b) the disclosure is allowed under an order made under section 23E and no order is in force under section 23F prohibiting that disclosure; or (c) the disclosure is allowed under an order made under section 23G. #### 23D Circumstances in which confidential information may be disclosed (1) This section sets out the circumstances in which confidential information in relation to arbitral proceedings may be disclosed by: (a) a party to the arbitral proceedings; or (b) an arbitral tribunal. (2) The information may be disclosed with the consent of all of the parties to the arbitral proceedings. (3) The information may be disclosed to a professional or other adviser of any of the parties to the arbitral proceedings. (4) The information may be disclosed if it is necessary to ensure that a party to the arbitral proceedings has a full opportunity to present the party’s case and the disclosure is no more than reasonable for that purpose. (5) The information may be disclosed if it is necessary for the establishment or protection of the legal rights of a party to the arbitral proceedings in relation to a third party and the disclosure is no more than reasonable for that purpose. (6) The information may be disclosed if it is necessary for the purpose of enforcing an arbitral award and the disclosure is no more than reasonable for that purpose. (7) The information may be disclosed if it is necessary for the purposes of this Act, or the Model Law as in force under subsection 16(1) of this Act, and the disclosure is no more than reasonable for that purpose. (8) The information may be disclosed if the disclosure is in accordance with an order made or a subpoena issued by a court. (9) The information may be disclosed if the disclosure is authorised or required by another relevant law, or required by a competent regulatory body, and the person making the disclosure gives written details of the disclosure including an explanation of reasons for the disclosure to: (a) if the person is a party to the arbitral proceedings—the other parties to the proceedings and the arbitral tribunal; and (b) if the arbitral tribunal is making the disclosure—all the parties to the proceedings. (10) In subsection (9): > another relevant law means: (a) a law of the Commonwealth, other than this Act; and (b) a law of a State or Territory; and (c) a law of a foreign country, or of a part of a foreign country: (i) in which a party to the arbitration agreement has its principal place of business; or (ii) in which a substantial part of the obligations of the commercial relationship are to be performed; or (iii) to which the subject matter of the dispute is most commonly connected. #### 23E Arbitral tribunal may allow disclosure in certain circumstances (1) An arbitral tribunal may make an order allowing a party to arbitral proceedings to disclose confidential information in relation to the proceedings in circumstances other than those mentioned in section 23D. (2) An order under subsection (1) may only be made at the request of one of the parties to the arbitral proceedings and after giving each of the parties to the arbitral proceedings the opportunity to be heard. #### 23F Court may prohibit disclosure in certain circumstances (1) A court may make an order prohibiting a party to arbitral proceedings from disclosing confidential information in relation to the arbitral proceedings if: (a) the court is satisfied in the circumstances of the particular case that the public interest in preserving the confidentiality of arbitral proceedings is not outweighed by other considerations that render it desirable in the public interest for the information to be disclosed; or (b) the disclosure is more than is reasonable for that purpose. (2) An order under subsection (1) may only be made on the application of a party to the arbitral proceedings and after giving each of the parties to the arbitral proceedings the opportunity to be heard. (3) A party to arbitral proceedings may only apply for an order under subsection (1) if the arbitral tribunal has made an order under subsection 23E(1) allowing the disclosure of the information. (4) The court may order that the confidential information not be disclosed pending the outcome of the application under subsection (2). (5) An order under this section is final. #### 23G Court may allow disclosure in certain circumstances (1) A court may make an order allowing a party to arbitral proceedings to disclose confidential information in relation to the arbitral proceedings in circumstances other than those mentioned in section 23D if: (a) the court is satisfied, in the circumstances of the particular case, that the public interest in preserving the confidentiality of arbitral proceedings is outweighed by other considerations that render it desirable in the public interest for the information to be disclosed; and (b) the disclosure is not more than is reasonable for that purpose. (2) An order under subsection (1) may only be made on the application of a person who is or was a party to the arbitral proceedings and after giving each person who is or was a party to the arbitral proceedings the opportunity to be heard. (3) A party to arbitral proceedings may only apply for an order under subsection (1) if: (a) the mandate of the arbitral tribunal has been terminated under Article 32 of the Model Law; or (b) a request by the party to the arbitral tribunal to make an order under subsection 23E(1) allowing the disclosure has been refused. (4) An order under this section is final. #### 23H Death of a party to an arbitration agreement (1) If a party to an arbitration agreement dies: (a) the agreement is not discharged (either in respect of the deceased or any other party); and (b) the authority of an arbitral tribunal is not revoked; and (c) the arbitration agreement is enforceable by or against the personal representative of the deceased. (2) Nothing in subsection (1) is taken to affect the operation of any enactment or rule of law by virtue of which a right of action is extinguished by the death of a person. #### 23J Evidence (1) An arbitral tribunal may, at any time before the award is issued by which a dispute that is arbitrated by the tribunal is finally decided, make an order: (a) allowing the tribunal or a person specified in the order to inspect, photograph, observe or conduct experiments on evidence that is in the possession of a party to the arbitral proceedings and that may be relevant to those proceedings (the relevant evidence); and (b) allowing a sample of the relevant evidence to be taken by the tribunal or a person specified in the order. (2) The tribunal may only specify a person in the order if the person is: (a) a party to the proceedings; or (b) an expert appointed by the tribunal under Article 26 of the Model Law; or (c) an expert appointed by a party to the proceedings with the permission of the tribunal. (3) The provisions of the Model Law apply in relation to an order under this section in the same way as they would apply to an interim measure under the Model Law. #### 23K Security for costs (1) An arbitral tribunal may, at any time before the award is issued by which a dispute that is arbitrated by the tribunal is finally decided, order a party to the arbitral proceedings to pay security for costs. (2) However, the tribunal must not make such an order solely on the basis that: (a) the party is not ordinarily resident in Australia; or (b) the party is a corporation incorporated or an association formed under the law of a foreign country; or (c) the party is a corporation or association the central management or control of which is exercised in a foreign country. (3) The provisions of the Model Law apply in relation to an order under this section in the same way as they would apply to an interim measure under the Model Law. #### 24 Consolidation of arbitral proceedings (1) A party to arbitral proceedings before an arbitral tribunal may apply to the tribunal for an order under this section in relation to those proceedings and other arbitral proceedings (whether before that tribunal or another tribunal or other tribunals) on the ground that: (a) a common question of law or fact arises in all those proceedings; (b) the rights to relief claimed in all those proceedings are in respect of, or arise out of, the same transaction or series of transactions; or (c) for some other reason specified in the application, it is desirable that an order be made under this section. (2) The following orders may be made under this section in relation to 2 or more arbitral proceedings: (a) that the proceedings be consolidated on terms specified in the order; (b) that the proceedings be heard at the same time or in a sequence specified in the order; (c) that any of the proceedings be stayed pending the determination of any other of the proceedings. (3) Where an application has been made under subsection (1) in relation to 2 or more arbitral proceedings (in this section called the related proceedings), the following provisions have effect. (4) If all the related proceedings are being heard by the same tribunal, the tribunal may make such order under this section as it thinks fit in relation to those proceedings and, if such an order is made, the proceedings shall be dealt with in accordance with the order. (5) If 2 or more arbitral tribunals are hearing the related proceedings: (a) the tribunal that received the application shall communicate the substance of the application to the other tribunals concerned; and (b) the tribunals shall, as soon as practicable, deliberate jointly on the application. (6) Where the tribunals agree, after deliberation on the application, that a particular order under this section should be made in relation to the related proceedings: (a) the tribunals shall jointly make the order; (b) the related proceedings shall be dealt with in accordance with the order; and (c) if the order is that the related proceedings be consolidated—the arbitrator or arbitrators for the purposes of the consolidated proceedings shall be appointed, in accordance with Articles 10 and 11 of the Model Law, from the members of the tribunals. (7) If the tribunals are unable to make an order under subsection (6), the related proceedings shall proceed as if no application has been made under subsection (1). (8) This section does not prevent the parties to related proceedings from agreeing to consolidate them and taking such steps as are necessary to effect that consolidation. #### 25 Interest up to making of award (1) Where an arbitral tribunal determines to make an award for the payment of money (whether on a claim for a liquidated or an unliquidated amount), the tribunal may, subject to subsection (2), include in the sum for which the award is made interest, at such reasonable rate as the tribunal determines on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made. (2) Subsection (1) does not: (a) authorise the awarding of interest upon interest; (b) apply in relation to any amount upon which interest is payable as of right whether by virtue of an agreement or otherwise; or (c) affect the damages recoverable for the dishonour of a bill of exchange. #### 26 Interest on debt under award (1) This section applies if: (a) an arbitral tribunal makes an award for the payment of an amount of money; and (b) under the award, the amount is to be paid by a particular day (the due date). (2) The arbitral tribunal may direct that interest, including compound interest, is payable if the amount is not paid on or before the due date. (3) The arbitral tribunal may set a reasonable rate of interest. (4) The interest is payable: (a) from the day immediately following the due date; and (b) on so much of the amount as remains unpaid. (5) The direction is taken to form part of the award. #### 27 Costs (1) The costs of an arbitration (including the fees and expenses of the arbitrator or arbitrators) shall be in the discretion of the arbitral tribunal. (2) An arbitral tribunal may in making an award: (a) direct to whom, by whom, and in what manner, the whole or any part of the costs that it awards shall be paid; (b) settle the amount of costs to be so paid or any part of those costs; and (d) limit the amount of costs that a party is to pay to a specified amount. (2AA) In settling the amount of costs to be paid in relation to an award, an arbitral tribunal is not required to use any scales or other rules used by a court when making orders in relation to costs. (2A) An arbitral tribunal must, if it intends to make a direction under paragraph (2)(d), give the parties to the arbitration agreement notice of that intention sufficiently in advance of the incurring of costs to which it relates, or the taking of any steps in the arbitral proceedings which may be affected by it, for the limit to be taken into account. (3) Any costs of an arbitration (other than the fees or expenses of an arbitrator) that are directed to be paid by an award are, to the extent that they have not been settled by the arbitral tribunal, taxable in the Court having jurisdiction under Article 34 of the Model Law to hear applications for setting aside the award. (4) If no provision is made by an award with respect to the costs of the arbitration, a party to the arbitration agreement may, within 14 days after receiving the award, apply to the arbitral tribunal for directions as to the payment of those costs, and thereupon the tribunal shall, after hearing any party who wishes to be heard, amend the award by adding to it such directions as the tribunal thinks proper with respect to the payment of the costs of the arbitration. ### Division 4—Miscellaneous #### 28 Immunity (1) An arbitrator is not liable for anything done or omitted to be done by the arbitrator in good faith in his or her capacity as arbitrator. (2) An entity that appoints, or fails or refuses to appoint, a person as arbitrator is not liable in relation to the appointment, failure or refusal if it was done in good faith. #### 29 Representation in proceedings (1) Where, in accordance with the Model Law, with the agreement of the parties or at the request of a party, as the case may be, the arbitral tribunal holds oral hearings for the presentation of evidence or for oral argument, or conducts proceedings on the basis of documents or other materials, the following provisions shall, without prejudice to the Model Law, apply. (2) A party may appear in person before an arbitral tribunal and may be represented: (a) by himself or herself; (b) by a duly qualified legal practitioner from any legal jurisdiction of that party’s choice; or (c) by any other person of that party’s choice. (3) A legal practitioner or a person, referred to in paragraphs (2)(b) or (c) respectively, while acting on behalf of a party to an arbitral proceeding to which Part III applies, including appearing before an arbitral tribunal, shall not thereby be taken to have breached any law regulating admission to, or the practice of, the profession of the law within the legal jurisdiction in which the arbitral proceedings are conducted. (4) Where, subject to the agreement of the parties, an arbitral tribunal conducts proceedings on the basis of documents and other materials, such documents and materials may be prepared and submitted by any legal practitioner or person who would, under subsection (2), be entitled to appear before the tribunal, and, in such a case, subsection (3) shall apply with the same force and effect to such a legal practitioner or person. #### 30A Severability Without limiting its effect apart from this section, this Part also has the effect it would have if it were confined, by express provision, to arbitrations involving: (a) places, persons, matters or things external to Australia; or (b) disputes arising in the course of trade or commerce with another country, or between the States; or (c) disputes between parties at least one of which is a corporation to which paragraph 51(xx) of the Constitution applies; or (d) disputes arising in the course of trade or commerce in a Territory. ## Part IV—Application of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States ### Division 1—Preliminary #### 31 Interpretation (1) In this Part: > award includes: (a) an interpretation of an award under Article 50; and (b) a revision of an award under Article 51; and (c) an annulment of an award under Article 52. > Department means the Department of the Commonwealth primarily responsible for matters relating to foreign affairs. > Investment Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States signed by Australia on 24 March 1975, the English text of which is set out in Schedule 3. > Secretary means the Secretary of the Department. (2) Except so far as the contrary intention appears, a word or expression used in this Part and in the Investment Convention (whether or not a particular meaning is given to it in the Investment Convention) has, in this Part, the same meaning as it has in the Investment Convention. (3) A reference in this Part to a numbered Article is a reference to the Article so numbered in the Investment Convention. ### Division 2—Investment Convention #### 32 Application of Investment Convention to Australia Subject to this Part, Chapters II to VII (inclusive) of the Investment Convention have the force of law in Australia. #### 33 Award is binding (1) An award is binding on a party to the investment dispute to which the award relates. (2) An award is not subject to any appeal or to any other remedy, otherwise than in accordance with the Investment Convention. #### 34 Investment Convention awards to prevail over other laws Other laws relating to the recognition and enforcement of arbitral awards, including the provisions of Parts II and III, do not apply to: (a) a dispute within the jurisdiction of the Centre; or (b) an award under this Part. #### 35 Recognition of awards (1) The Supreme Court of each State and Territory is designated for the purposes of Article 54. (2) An award may be enforced in the Supreme Court of a State or Territory with the leave of that court as if the award were a judgment or order of that court. (3) The Federal Court of Australia is designated for the purposes of Article 54. (4) An award may be enforced in the Federal Court of Australia with the leave of that court as if the award were a judgment or order of that court. > Note: For the enforcement of an award against a foreign State, or a separate entity of a foreign State, see the Foreign States Immunities Act 1985. ### Division 3—Miscellaneous #### 36 Evidence relating to Investment Convention (1) A certificate purporting to be signed by the Secretary and stating that a country specified in the certificate is, or was at a time so specified, a Contracting State is, upon mere production, receivable in any proceedings as prima facie evidence of that fact. (2) The Secretary may, by signed instrument, delegate the power to sign a certificate under subsection (1) to the holder of a specified office in the Department. #### 37 Representation in proceedings (1) A party appearing in conciliation or arbitration proceedings may appear in person and may be represented: (a) by himself or herself; or (b) by a duly qualified legal practitioner from any legal jurisdiction of the party’s choice; or (c) by any other person of the party’s choice. (2) A legal practitioner or a person referred to in paragraph (1)(b) or (c) respectively, while acting on behalf of a party to conciliation or arbitration proceedings, is not thereby to be taken to have breached any law regulating admission to, or the practice of, the profession of the law within the legal jurisdiction in which the proceedings are being conducted. (3) Where conciliation or arbitration proceedings are conducted on the basis of documents and other materials, the documents and materials may be prepared and submitted by any legal practitioner or person who would, under subsection (1), be entitled to appear in those proceedings, and, in such a case, subsection (2) applies with the same force and effect to such a legal practitioner or person. #### 38 Judiciary Act A matter arising under this Part, including a question of interpretation of the Investment Convention for the purposes of this Part, is not taken to be a matter arising directly under a treaty for the purposes of section 38 of the Judiciary Act 1903. ## Part V—General matters #### 39 Matters to which court must have regard (1) This section applies where: (a) a court is considering: (i) exercising a power under section 8 to enforce a foreign award; or (ii) exercising the power under section 8 to refuse to enforce a foreign award, including a refusal because the enforcement of the award would be contrary to public policy; or (iii) exercising a power under Article 35 of the Model Law, as in force under subsection 16(1) of this Act, to recognise or enforce an arbitral award; or (iv) exercising a power under Article 36 of the Model Law, as in force under subsection 16(1) of this Act, to refuse to recognise or enforce an arbitral award, including a refusal under Article 36(1)(b)(ii) because the recognition or enforcement of the arbitral award would be contrary to the public policy of Australia; or (v) if, under section 18, the court is taken to have been specified in Article 6 of the Model Law as a court competent to perform the functions referred to in that article—performing one or more of those functions; or (vi) performing any other functions or exercising any other powers under this Act, or the Model Law as in force under subsection 16(1) of this Act; or (vii) performing any function or exercising any power under an agreement or award to which this Act applies; or (b) a court is interpreting this Act, or the Model Law as in force under subsection 16(1) of this Act; or (c) a court is interpreting an agreement or award to which this Act applies; or (d) if, under section 18, an authority is taken to have been specified in Article 6 of the Model Law as an authority competent to perform the functions referred to in Articles 11(3) or 11(4) of the Model Law—the authority is considering performing one or more of those functions. (2) The court or authority must, in doing so, have regard to: (a) the objects of the Act; and (b) the fact that: (i) arbitration is an efficient, impartial, enforceable and timely method by which to resolve commercial disputes; and (ii) awards are intended to provide certainty and finality. (3) In this section: > arbitral award has the same meaning as in the Model Law. > foreign award has the same meaning as in Part II. > Model Law has the same meaning as in Part III. #### 40 Regulations The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.