International Arbitration Act 1974 (Cth)
This is a compilation of the
The notes at the end of this compilation
(the
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.
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Contents
This Act may be cited as the
International Arbitration Act 1974 .
(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.
This Act extends to all external Territories.
This Act binds the Crown in each of its capacities.
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 theCarriage of Goods by Sea Act 1991 ; or(b) the operation of section 11 or 16 of the
Carriage of Goods by Sea Act 1991 .
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.
(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 theDiplomatic 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, andenforce andenforced 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.
(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.
(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.
(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.
(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.
(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.
(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.
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.
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).
(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.
(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).
(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.
(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.
(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.
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.
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.
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.
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.
(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.
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.
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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
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.
(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.
Subject to this Part, Chapters II to VII (inclusive) of the Investment Convention have the force of law in Australia.
(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.
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.
(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 .
(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.
(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.
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 .
(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.
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.
Section 3
ARTICLE I
1. This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.
2. The term “arbitral awards” shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted.
3. When signing, ratifying or acceding to this Convention, or notifying extensions under article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. It may also declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration.
ARTICLE II
1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.
2. The term “agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.
3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.
ARTICLE III
Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.
ARTICLE IV
1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply:
(a) The duly authenticated original award or a duly certified copy thereof;
(b) The original agreement referred to in article II or a duly certified copy thereof.
2. If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.
ARTICLE V
1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:
(a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or
(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
(c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or
(d) 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
(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:
(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or
(b) The recognition or enforcement of the award would be contrary to the public policy of that country.
ARTICLE VI
If an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V (1) (e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.
ARTICLE VII
1. The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.
2. The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 shall cease to have effect between Contracting States on their becoming bound and to the extent that they become bound, by this Convention.
ARTICLE VIII
1. This Convention shall be open until 31 December 1958 for signature on behalf of any Member of the United Nations and also on behalf of any other State which is or hereafter becomes a member of any specialized agency of the United Nations, or which is or hereafter becomes a party to the Statute of the International Court of Justice, or any other State to which an invitation has been addressed by the General Assembly of the United Nations.
2. This Convention shall be ratified and the instrument of ratification shall be deposited with the Secretary‑General of the United Nations.
ARTICLE IX
1. This Convention shall be open for accession to all States referred to in article VIII.
2. Accession shall be effected by the deposit of an instrument of accession with the Secretary‑General of the United Nations.
ARTICLE X
1. Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. Such a declaration shall take effect when the Convention enters into force for the State concerned.
2. At any time thereafter any such extensions shall be made by notification addressed to the Secretary‑General of the United Nations and shall take effect as from the ninetieth day after the day of receipt by the Secretary‑General of the United Nations of this notification, or as from the date of entry into force of the Convention for the State concerned, whichever is the later.
3. With respect to those territories to which this Convention is not extended at the time of signature, ratification or accession, each State concerned shall consider the possibility of taking the necessary steps in order to extend the application of this Convention to such territories, subject, where necessary for constitutional reasons, to the consent of the Governments of such territories.
ARTICLE XI
In the case of a federal or non‑unitary State, the following provisions shall apply:
(a) With respect to those articles of this Convention that come within the legislative jurisdiction of the federal authority, the obligations of the federal Government shall to this extent be the same as those of Contracting States which are not federal States;
(b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent states or provinces which are not, under the constitutional system of the federation, bound to take legislative action, the federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of constituent states or provinces at the earliest possible moment;
(c) A federal State party to this Convention shall, at the request of any other Contracting State transmitted through the Secretary‑General of the United Nations, supply a statement of the law and practice of the federation and its constituent units in regard to any particular provision of this Convention, showing the extent to which effect has been given to that provision by legislative or other action.
ARTICLE XII
1. This Convention shall come into force on the ninetieth day following the date of deposit of the third instrument of ratification or accession.
2. For each State ratifying or acceding to this Convention after the deposit of the third instrument of ratification or accession, this Convention shall enter into force on the ninetieth day after deposit by such State of its instrument of ratification or accession.
ARTICLE XIII
1. Any Contracting State may denounce this Convention by a written notification to the Secretary‑General of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary‑General.
2. Any State which has made a declaration or notification under article X may, at any time thereafter, by notification to the Secretary‑General of the United Nations, declare that this Convention shall cease to extend to the territory concerned one year after the date of the receipt of the notification by the Secretary‑General.
3. This Convention shall continue to be applicable to arbitral awards in respect of which recognition or enforcement proceedings have been instituted before the denunciation takes effect.
ARTICLE XIV
A Contracting State shall not be entitled to avail itself of the present Convention against other Contracting States except to the extent that it is itself bound to apply the Convention.
ARTICLE XV
The Secretary‑General of the United Nations shall notify the States contemplated in article VIII of the following:
(a) Signatures and ratifications in accordance with article VIII;
(b) Accessions in accordance with article IX;
(c) Declarations and notifications under articles I, X and XI;
(d) The date upon which this Convention enters into force in accordance with article XII;
(e) Denunciations and notifications in accordance with article XIII.
ARTICLE XVI
1. This Convention, of which the Chinese, English, French, Russian and Spanish texts shall be equally authentic, shall be deposited in the archives of the United Nations.
2. The Secretary‑General of the United Nations shall transmit a certified copy of this Convention to the States contemplated in article VIII.
Note: See subsection 15(1).
CHAPTER I. GENERAL PROVISIONS
(1) This
Law applies to international commercial
(2) The provisions of this Law, except articles 8, 9, 17 H, 17 I, 17 J, 35 and 36, apply only if the place of arbitration is in the territory of this State.
(3) An arbitration is international if:
the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States; or
(i) the place of arbitration if determined in, or pursuant to, the arbitration agreement;
(ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject‑matter of the dispute is most closely connected; or
the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.
(4) For the purposes of paragraph (3) of this article:
if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement;
if a party does not have a place of business, reference is to be made to his habitual residence.
(5) This Law shall not affect any other law of this State by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Law.
For the purposes of this Law:
“arbitration” means any arbitration whether or not administered by a permanent arbitral institution;
“arbitral tribunal” means a sole arbitrator or a panel of arbitrators;
“court” means a body or organ of the judicial system of a State;
where a provision of this Law, except article 28, leaves the parties free to determine a certain issue, such freedom includes the right of the parties to authorize a third party, including an institution, to make that determination;
where a provision of this Law refers to the fact that the parties have agreed or that they may agree or in any other way refers to an agreement of the parties, such agreement includes any arbitration rules referred to in that agreement;
where a provision of this Law, other than in articles 25
(1) In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith.
(2) Questions concerning matters governed by this Law which are not expressly settled in it are to be settled in conformity with the general principles on which this Law is based.
(1) Unless otherwise agreed by the parties:
any written communication is deemed to have been received if it is delivered to the addressee personally or if it is delivered at his place of business, habitual residence or mailing address; if none of these can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee’s last‑known place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it;
the communication is deemed to have been received on the day it is so delivered.
(2) The provisions of this article do not apply to communications in court proceedings.
A party who knows that any provision of this Law from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating his objection to such non‑compliance without undue delay or, if a time‑limit is provided therefor, within such period of time, shall be deemed to have waived his right to object.
In matters governed by this Law, no court shall intervene except where so provided in this Law.
The functions referred to in articles 11(3), 11(4), 13(3), 14, 16(3) and 34(2) shall be performed by ... [Each State enacting this model law specifies the court, courts or, where referred to therein, other authority competent to perform these functions.]
ARBITRATION AGREEMENT
(1) “Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
(2) The arbitration agreement shall be in writing.
(3) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means.
(4) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference; “electronic communication” means any communication that the parties make by means of data messages; “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), electronic mail, telegram, telex or telecopy.
(5) Furthermore, an arbitration agreement is in writing if 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.
(6) The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract.
“Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.
(2) Where an action referred to in paragraph (1) of this article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.
It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure.
CHAPTER III. COMPOSITION OF ARBITRAL TRIBUNAL
(1) The parties are free to determine the number of arbitrators.
(2) Failing such determination, the number of arbitrators shall be three.
(1) No person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties.
(2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of paragraphs (4) and (5) of this article.
(3) Failing such agreement,
in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within thirty days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within thirty days of their appointment, the appointment shall be made, upon request of a party, by the court or other authority specified in article 6;
in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, he shall be appointed, upon request of a party, by the court or other authority specified in article 6.
(4) Where, under an appointment procedure agreed upon by the parties,
a party fails to act as required under such procedure, or
the parties, or two arbitrators, are unable to reach an agreement expected of them under such procedure, or
a third party, including an institution, fails to perform any function entrusted to it under such procedure,
any party may request the court or other authority specified in article 6 to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
(5) A decision on a matter entrusted by paragraph (3) or (4) of this article to the court or other authority specified in article 6 shall be subject to no appeal. The court or other authority, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account as well the advisability of appointing an arbitrator of a nationality other than those of the parties.
(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him.
(2) An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.
(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of paragraph (3) of this article.
(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.
(3) If a challenge under any procedure agreed upon by the parties or under the procedure of paragraph (2) of this article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the court or other authority specified in article 6 to decide on the challenge, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.
(1) If an arbitrator becomes
(2) If, under this article or article 13(2), an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, this does not imply acceptance of the validity of any ground referred to in this article or article 12(2).
(1) The Centre, its assets, property and income, and its operations and transactions authorized by this Convention shall be exempt from all taxation and customs duties. The Centre shall also be exempt from liability for the collection or payment of any taxes or customs duties.
(2) Except in the case of local nationals, no tax shall be levied on or in respect of expense allowances paid by the Centre to the Chairman or members of the Administrative Council, or on or in respect of salaries, expense allowances or other emoluments paid by the Centre to officials or employees of the Secretariat.
(3) No tax shall be levied on or in respect of fees or expense allowances received by persons acting as conciliators, or arbitrators, or members of a Committee appointed pursuant to paragraph (3) of Article 52, in proceedings under this Convention, if the sole jurisdictional basis for such tax is the location of the Centre or the place where such proceedings are conducted or the place where such fees or allowances are paid.
(1) The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally.
(2) “National of another Contracting State” means:
(a) any natural person who had the nationality of a Contracting State other than the State party to the dispute on the date on which the parties consented to submit such dispute to conciliation or arbitration as well as on the date on which the request was registered pursuant to paragraph (3) of Article 28 or paragraph (3) of Article 36, but does not include any person who on either date also had the nationality of the Contracting State party to the dispute; and
(b) any juridical person which had the nationality of a Contracting State other than the State party to the dispute on the date on which the parties consented to submit such dispute to conciliation or arbitration and any juridical person which had the nationality of the Contracting State party to the dispute on that date and which, because of foreign control, the parties have agreed should be treated as a national of another Contracting State for the purposes of this Convention.
(3) Consent by a constituent subdivision or agency of a Contracting State shall require the approval of that State unless that State notifies the Centre that no such approval is required.
(4) Any Contracting State may, at the time of ratification, acceptance or approval of this Convention or at any time thereafter, notify the Centre of the class or classes of disputes which it would or would not consider submitting to the jurisdiction of the Centre. The Secretary‑General shall forthwith transmit such notification to all Contracting States. Such notification shall not constitute the consent required by paragraph (1).
Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State may require the exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration under this Convention.
(1) No Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Contracting State shall have failed to abide by and comply with the award rendered in such dispute.
(2) Diplomatic protection, for the purposes of paragraph (1), shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute.
SECTION 1
(1) Any Contracting State or any national of a Contracting State wishing to institute conciliation proceedings shall address a request to that effect in writing to the Secretary‑General who shall send a copy of the request to the other party.
(2) The request shall contain information concerning the issues in dispute, the identity of the parties and their consent to conciliation in accordance with the rules of procedure for the institution of conciliation and arbitration proceedings.
(3) The Secretary‑General shall register the request unless he finds, on the basis of the information contained in the request, that the dispute is manifestly outside the jurisdiction of the Centre. He shall forthwith notify the parties of registration or refusal to register.
SECTION 2
(1) The Conciliation Commission (hereinafter called the Commission) shall be constituted as soon as possible after registration of a request pursuant to Article 28.
(2) (a) The Commission shall consist of a sole conciliator or any uneven number of conciliators appointed as the parties shall agree.
(b) Where the parties do not agree upon the number of conciliators and the method of their appointment, the Commission shall consist of three conciliators, one conciliator appointed by each party and the third, who shall be the president of the Commission, appointed by agreement of the parties.
If the Commission shall not have been constituted within 90 days after notice of registration of the request has been dispatched by the Secretary‑General in accordance with paragraph (3) of Article 28, or such other period as the parties may agree, the Chairman shall, at the request of either party and after consulting both parties as far as possible, appoint the conciliator or conciliators not yet appointed.
(1) Conciliators may be appointed from outside the Panel of Conciliators, except in the case of appointments by the Chairman pursuant to Article 30.
(2) Conciliators appointed from outside the Panel of Conciliators shall possess the qualities stated in paragraph (1) of Article 14.
SECTION 3
(1) The Commission shall be the judge of its own competence.
(2) Any objection by a party to the dispute that that dispute is not within the jurisdiction of the Centre, or for other reasons is not within the competence of the Commission, shall be considered by the Commission which shall determine whether to deal with it as a preliminary question or to join it to the merits of the dispute.
Any conciliation proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Conciliation Rules in effect on the date on which the parties consented to conciliation. If any question of procedure arises which is not covered by this Section or the Conciliation Rules or any rules agreed by the parties, the Commission shall decide the question.
(1) It shall be the duty of the Commission to clarify the issues in dispute between the parties and to endeavour to bring about agreement between them upon mutually acceptable terms. To that end, the Commission may at any stage of the proceedings and from time to time recommend terms of settlement to the parties. The parties shall cooperate in good faith with the Commission in order to enable the Commission to carry out its functions, and shall give their most serious consideration to its recommendations.
(2) If the parties reach agreement, the Commission shall draw up a report noting the issues in dispute and recording that the parties have reached agreement. If, at any stage of the proceedings, it appears to the Commission that there is no likelihood of agreement between the parties, it shall close the proceedings and shall draw up a report noting the submission of the dispute and recording the failure of the parties to reach agreement. If one party fails to appear or participate in the proceedings, the Commission shall close the proceedings and shall draw up a report noting that party’s failure to appear or participate.
Except as the parties to the dispute shall otherwise agree, neither party to a conciliation proceeding shall be entitled in any other proceeding, whether before arbitrators or in a court of law or otherwise, to invoke or rely on any views expressed or statements or admissions or offers of settlement made by the other party in the conciliation proceedings, or the report or any recommendations made by the Commission.
SECTION 1
(1) Any Contracting State or any national of a Contracting State wishing to institute arbitration proceedings shall address a request to that effect in writing to the Secretary‑General who shall send a copy of the request to the other party.
(2) The request shall contain information concerning the issues in dispute, the identity of the parties and their consent to arbitration in accordance with the rules of procedure for the institution of conciliation and arbitration proceedings.
(3) The Secretary‑General shall register the request unless he finds, on the basis of the information contained in the request, that the dispute is manifestly outside the jurisdiction of the Centre. He shall forthwith notify the parties of registration or refusal to register.
SECTION 2
(1) The Arbitral Tribunal (hereinafter called the Tribunal) shall be constituted as soon as possible after registration of a request pursuant to Article 36.
(2) (a) The Tribunal shall consist of a sole arbitrator or any uneven number of arbitrators appointed as the parties shall agree.
(b) Where the parties do not agree upon the number of arbitrators and the method of their appointment, the Tribunal shall consist of three arbitrators, one arbitrator appointed by each party and the third, who shall be the president of the Tribunal, appointed by agreement of the parties.
If the Tribunal shall not have been constituted within 90 days after notice of registration of the request has been dispatched by the Secretary‑General in accordance with paragraph (3) of Article 36, or such other period as the parties may agree, the Chairman shall, at the request of either party and after consulting both parties as far as possible, appoint the arbitrator or arbitrators not yet appointed. Arbitrators appointed by the Chairman pursuant to this Article shall not be nationals of the Contracting State party to the dispute or of the Contracting State whose national is a party to the dispute.
The majority of the arbitrators shall be nationals of States other than the Contracting State party to the dispute and the Contracting State whose national is a party to the dispute; provided, however, that the foregoing provisions of this Article shall not apply if the sole arbitrator or each individual member of the Tribunal has been appointed by agreement of the parties.
(1) Arbitrators may be appointed from outside the Panel of Arbitrators, except in the case of appointments by the Chairman pursuant to Article 38.
(2) Arbitrators appointed from outside the Panel of Arbitrators shall possess the qualities stated in paragraph (1) of Article 14.
SECTION 3
(1) The Tribunal shall be the judge of its own competence.
(2) Any objection by a party to the dispute that that dispute is not within the jurisdiction of the Centre, or for other reasons is not within the competence of the Tribunal, shall be considered by the Tribunal which shall determine whether to deal with it as a preliminary question or to join it to the merits of the dispute.
(1) The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable.
(2) The Tribunal may not bring in a finding of
(3) The provisions of paragraphs (1) and (2)
shall not prejudice the power of the Tribunal to decide a dispute
Except as the parties otherwise agree, the Tribunal may, if it deems it necessary at any stage of the proceedings,
(a) call upon the parties to produce documents or other evidence, and
(b) visit the scene connected with the dispute, and conduct such inquiries there as it may deem appropriate.
Any arbitration proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Arbitration Rules in effect on the date on which the parties consented to arbitration. If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question.
(1) Failure of a party to appear or to present his case shall not be deemed an admission of the other party’s assertions.
(2) If a party fails to appear or to present his case at any stage of the proceedings the other party may request the Tribunal to deal with the questions submitted to it and to render an award. Before rendering an award, the Tribunal shall notify, and grant a period of grace to, the party failing to appear or to present its case, unless it is satisfied that that party does not intend to do so.
Except as the parties otherwise agree, the Tribunal shall, if requested by a party, determine any incidental or additional claims or counter‑claims arising directly out of the subject‑matter of the dispute provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the Centre.
Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party.
SECTION 4
(1) The Tribunal shall decide questions by a majority of the votes of all its members.
(2) The award of the Tribunal shall be in writing and shall be signed by the members of the Tribunal who voted for it.
(3) The award shall deal with every question submitted to the Tribunal, and shall state the reasons upon which it is based.
(4) Any member of the Tribunal may attach his individual opinion to the award, whether he dissents from the majority or not, or a statement of his dissent.
(5) The Centre shall not publish the award without the consent of the parties.
(1) The Secretary‑General shall promptly dispatch certified copies of the award to the parties. The award shall be deemed to have been rendered on the date on which the certified copies were dispatched.
(2) The Tribunal upon the request of a party made within 45 days after the date on which the award was rendered may after notice to the other party decide any question which it had omitted to decide in the award, and shall rectify any clerical, arithmetical or similar error in the award. Its decision shall become part of the award and shall be notified to the parties in the same manner as the award. The periods of time provided for under paragraph (2) of Article 51 and paragraph (2) of Article 52 shall run from the date on which the decision was rendered.
SECTION 5
(1) If any dispute shall arise between the parties as to the meaning or scope of an award, either party may request interpretation of the award by an application in writing addressed to the Secretary‑General.
(2) The request shall, if possible, be submitted to the Tribunal which rendered the award. If this shall not be possible, a new Tribunal shall be constituted in accordance with Section 2 of this Chapter. The Tribunal may, if it considers that the circumstances so require, stay enforcement of the award pending its decision.
(1) Either party may request revision of the award by an application in writing addressed to the Secretary‑General on the ground of discovery of some fact of such a nature as decisively to affect the award, provided that when the award was rendered that fact was unknown to the Tribunal and to the applicant and that the applicant’s ignorance of that fact was not due to negligence.
(2) The application shall be made within 90 days after the discovery of such fact and in any event within three years after the date on which the award was rendered.
(3) The request shall, if possible, be submitted to the Tribunal which rendered the award. If this shall not be possible, a new Tribunal shall be constituted in accordance with Section 2 of this Chapter.
(4) The Tribunal may, if it considers that the circumstances so require, stay enforcement of the award pending its decision. If the applicant requests a stay of enforcement of the award in his application, enforcement shall be stayed provisionally until the Tribunal rules on such request.
(1) Either party may request annulment of the award by an application in writing addressed to the Secretary‑General on one or more of the following grounds:
(a) that the Tribunal was not properly constituted;
(b) that the Tribunal has manifestly exceeded its powers;
(c) that there was corruption on the part of a member of the Tribunal;
(d) that there has been a serious departure from a fundamental rule of procedure; or
(e) that the award has failed to state the reasons on which it is based.
(2) The application shall be made within 120 days after the date on which the award was rendered except that when annulment is requested on the ground of corruption such application shall be made within 120 days after discovery of the corruption and in any event within three years after the date on which the award was rendered.
(3) On receipt of the request the Chairman shall
forthwith appoint from the Panel of Arbitrators an
(4) The provisions of Articles 41‑45, 48,
49, 53 and 54, and of Chapters VI and VII shall apply
(5) The Committee may, if it considers that the circumstances so require, stay enforcement of the award pending its decision. If the applicant requests a stay of enforcement of the award in his application, enforcement shall be stayed provisionally until the Committee rules on such request.
(6) If the award is annulled the dispute shall, at the request of either party, be submitted to a new Tribunal constituted in accordance with Section 2 of this Chapter.
SECTION 6
(1) The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention. Each party shall abide by and comply with the terms of the award except to the extent that enforcement shall have been stayed pursuant to the relevant provisions of this Convention.
(2) For the purposes of this Section, “award” shall include any decision interpreting, revising or annulling such award pursuant to Articles 50, 51 or 52.
(1) Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state.
(2) A party seeking recognition or enforcement in the territories of a Contracting State shall furnish to a competent court or other authority which such State shall have designated for this purpose a copy of the award certified by the Secretary‑General. Each Contracting State shall notify the Secretary‑General of the designation of the competent court or other authority for this purpose and of any subsequent change in such designation.
(3) Execution of the award shall be governed by the laws concerning the execution of judgments in force in the State in whose territories such execution is sought.
Nothing in Article 54 shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution.
CHAPTER V
(1) After a Commission or a Tribunal has been constituted and proceedings have begun, its composition shall remain unchanged; provided, however, that if a conciliator or an arbitrator should die, become incapacitated, or resign, the resulting vacancy shall be filled in accordance with the provisions of Section 2 of Chapter III or Section 2 of Chapter IV.
(2) A member of a Commission or Tribunal shall continue to serve in that capacity notwithstanding that he shall have ceased to be a member of the Panel.
(3) If a conciliator or arbitrator appointed by a party shall have resigned without the consent of the Commission or Tribunal of which he was a member, the Chairman shall appoint a person from the appropriate Panel to fill the resulting vacancy.
A party may propose to a Commission or Tribunal the disqualification of any of its members on account of any fact indicating a manifest lack of the qualities required by paragraph (1) of Article 14. A party to arbitration proceedings may, in addition, propose the disqualification of an arbitrator on the ground that he was ineligible for appointment to the Tribunal under Section 2 of Chapter IV.
The decision on any proposal to disqualify a conciliator or arbitrator shall be taken by the other members of the Commission or Tribunal as the case may be, provided that where those members are equally divided, or in the case of a proposal to disqualify a sole conciliator or arbitrator, or a majority of the conciliators or arbitrators, the Chairman shall take that decision. If it is decided that the proposal is well‑founded the conciliator or arbitrator to whom the decision relates shall be replaced in accordance with the provisions of Section 2 of Chapter III or Section 2 of Chapter IV.
CHAPTER VI
The charges payable by the parties for the use of the facilities of the Centre shall be determined by the Secretary‑General in accordance with the regulations adopted by the Administrative Council.
(1) Each Commission and each Tribunal shall determine the fees and expenses of its members within limits established from time to time by the Administrative Council and after consultation with the Secretary‑General.
(2) Nothing in paragraph (1) of this Article shall preclude the parties from agreeing in advance with the Commission or Tribunal concerned upon the fees and expenses of its members.
(1) In the case of conciliation proceedings the fees and expenses of members of the Commission as well as the charges for the use of the facilities of the Centre, shall be borne equally by the parties. Each party shall bear any other expenses it incurs in connection with the proceedings.
(2) In the case of arbitration proceedings the Tribunal shall, except as the parties otherwise agree, assess the expenses incurred by the parties in connection with the proceedings, and shall decide how and by whom those expenses, the fees and expenses of the members of the Tribunal and the charges for the use of the facilities of the Centre shall be paid. Such decision shall form part of the award.
CHAPTER VII
Conciliation and arbitration proceedings shall be held at the seat of the Centre except as hereinafter provided.
Conciliation and arbitration proceedings may be held, if the parties so agree,
(a) at the seat of the Permanent Court of Arbitration or of any other appropriate institution, whether private or public, with which the Centre may make arrangements for that purpose; or
(b) at any other place approved by the Commission or Tribunal after consultation with the Secretary‑General.
CHAPTER VIII
Any dispute arising between Contracting States concerning the interpretation or application of this Convention which is not settled by negotiation shall be referred to the International Court of Justice by the application of any party to such dispute, unless the States concerned agree to another method of settlement.
CHAPTER IX
Any Contracting State may propose amendment of this Convention. The text of a proposed amendment shall be communicated to the Secretary‑General not less than 90 days prior to the meeting of the Administrative Council at which such amendment is to be considered and shall forthwith be transmitted by him to all the members of the Administrative Council.
(1) If the Administrative Council shall so decide by a majority of two‑thirds of its members, the proposed amendment shall be circulated to all Contracting States for ratification, acceptance or approval. Each amendment shall enter into force 30 days after dispatch by the depositary of this Convention of a notification to Contracting States that all Contracting States have ratified, accepted or approved the amendment.
(2) No amendment shall affect the rights and obligations under this Convention of any Contracting State or of any of its constituent subdivisions or agencies, or of any national of such State arising out of consent to the jurisdiction of the Centre given before the date of entry into force of the amendment.
CHAPTER X
This Convention shall be open for signature on behalf of States members of the Bank. It shall also be open for signature on behalf of any other State which is a party to the Statute of the International Court of Justice and which the Administrative Council, by a vote of two‑thirds of its members, shall have invited to sign the Convention.
(1) This Convention shall be subject to ratification, acceptance or approval by the signatory States in accordance with their respective constitutional procedures.
(2) This Convention shall enter into force 30 days after the date of deposit of the twentieth instrument of ratification, acceptance or approval. It shall enter into force for each State which subsequently deposits its instrument of ratification, acceptance or approval 30 days after the date of such deposit.
Each Contracting State shall take such legislative or other measures as may be necessary for making the provisions of this Convention effective in its territories.
This Convention shall apply to all territories for whose international relations a Contracting State is responsible, except those which are excluded by such State by written notice to the depositary of this Convention either at the time of ratification, acceptance or approval or subsequently.
Any Contracting State may denounce this Convention by written notice to the depositary of this Convention. The denunciation shall take effect six months after receipt of such notice.
Notice by a Contracting State pursuant to Articles 70 or 71 shall not affect the rights or obligations under this Convention of that State or of any of its constituent subdivisions or agencies or of any national of that State arising out of consent to the jurisdiction of the Centre given by one of them before such notice was received by the depositary.
Instruments of ratification, acceptance or approval of this Convention and of amendments thereto shall be deposited with the Bank which shall act as the depositary of this Convention. The depositary shall transmit certified copies of this Convention to States members of the Bank and to any other State invited to sign the Convention.
The depositary shall register this Convention with the Secretariat of the United Nations in accordance with Article 102 of the Charter of the United Nations and the Regulations thereunder adopted by the General Assembly.
The depositary shall notify all signatory States of the following:
(a) signatures in accordance with Article 67;
(b) deposits of instruments of ratification, acceptance and approval in accordance with Article 73;
(c) the date on which this Convention enters into force in accordance with Article 68;
(d) exclusions from territorial application pursuant to Article 70;
(e) the date on which any amendment of this Convention enters into force in accordance with Article 66; and
(f) denunciations in accordance with Article 71.
DONE at Washington in the English, French and Spanish languages, all three texts being equally authentic, in a single copy which shall remain deposited in the archives of the International Bank for Reconstruction and Development, which has indicated by its signature below its agreement to fulfil the functions with which it is charged under this Convention.
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
The abbreviation key sets out abbreviations that may be used in the endnotes.
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
The
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.
ad = added or inserted | o = order(s) |
am = amended | Ord = Ordinance |
amdt = amendment | orig = original |
c = clause(s) | par = paragraph(s)/subparagraph(s) |
C[x] = Compilation No. x | /sub‑subparagraph(s) |
Ch = Chapter(s) | pres = present |
def = definition(s) | prev = previous |
Dict = Dictionary | (prev…) = previously |
disallowed = disallowed by Parliament | Pt = Part(s) |
Div = Division(s) | r = regulation(s)/rule(s) |
ed = editorial change | reloc = relocated |
exp = expires/expired or ceases/ceased to have | renum = renumbered |
effect | rep = repealed |
F = Federal Register of Legislation | rs = repealed and substituted |
gaz = gazette | s = section(s)/subsection(s) |
LA
= | Sch = Schedule(s) |
LIA
= | Sdiv = Subdivision(s) |
(md) = misdescribed amendment can be given | SLI = Select Legislative Instrument |
effect | SR = Statutory Rules |
(md not incorp) = misdescribed amendment | Sub‑Ch = Sub‑Chapter(s) |
cannot be given effect | SubPt = Subpart(s) |
mod = modified/modification | |
No. = Number(s) | commenced or to be commenced |
Arbitration (Foreign Awards and Agreements) Act 1974 | 136, 1974 | 9 Dec 1974 | s 1–3: 9 Dec 1974 (s 2(1)) Remainder: 24 June 1975 (s 2(2) and gaz1975, No G24, p 2) | |
Jurisdiction of Courts (Miscellaneous Amendments) Act 1979 | 19, 1979 | 28 Mar 1979 | Parts II–XVII (s 3–123): 15 May 1979 (s 2(2), (3) and gaz 1979, No S86) Remainder: 28 Mar 1979 (s 2(1)) | s 124 |
Statute Law (Miscellaneous Provisions) Act 1987 | 141, 1987 | 18 Dec 1987 | s 3 and 5(1): 18 Dec 1987 (s 2(1)) | s 5(1) |
International Arbitration Amendment Act 1989 | 25, 1989 | 15 May 1989 | 12 June 1989 | — |
ICSID Implementation Act 1990 | 107, 1990 | 18 Dec 1990 | Parts 2 and 3 (s 3–8): 1 June 1991 (s 2(2) and gaz 1991, No S98) Remainder: 18 Dec 1990 (s 2(1)) | — |
Carriage of Goods by Sea Act 1991 | 160, 1991 | 31 Oct 1991 | s 21: 31 Oct 1991 (s 2(1)) | — |
Law and Justice Legislation Amendment Act 2004 | 62, 2004 | 26 May 2004 | Sch 1 (items 40–42): 27 May 2004 (s 2(1) item 11) | — |
Statute Law Revision Act 2008 | 73, 2008 | 3 July 2008 | Sch 4 (items 348–350): 4 July 2008 (s 2(1) item 64) | — |
Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 | 122, 2009 | 7 Dec 2009 | Sch 2: 7 Dec 2009 (s 2(1) item 2) | — |
International Arbitration Amendment Act 2010 | 97, 2010 | 6 July 2010 | Sch 1 (items 6, 8, 25): 7 Dec 2009 (s 2(1) items 3, 5, 9) Remainder: 6 July 2010 (s 2(1) items 1, 2, 4, 6–8, 10) | Sch 1 (items 28–35) |
Statute Law Revision Act 2011 | 5, 2011 | 22 Mar 2011 | Sch 6 (items 67, 68) and Sch 7 (items 77–79): 19 Apr 2011 (s 2(1) items 17, 18) | — |
Civil Law and Justice Legislation Amendment Act 2015 | 113, 2015 | 17 Aug 2015 | Sch 2: 18 Aug 2015 (s 2(1) item 2) | — |
Civil Law and Justice (Omnibus Amendments) Act 2015 | 132, 2015 | 13 Oct 2015 | Sch 1 (items 56–64): 14 Oct 2015 (s 2(1) item 2) | Sch 1 (items 58, 63) |
Statute Law Revision Act (No. 2) 2015 | 145, 2015 | 12 Nov 2015 | Sch 3 (item 23): 10 Dec 2015 (s 2(1) item 7) | — |
Statute Law Revision (Spring 2016) Act 2016 | 67, 2016 | 20 Oct 2016 | Sch 1 (item 29): 17 Nov 2016 (s 2(1) item 2) | — |
Civil Law and Justice Legislation Amendment Act 2018 | 130, 2018 | 25 Oct 2018 | Sch 7: 26 Oct 2018 (s 2(1) item 11) | Sch 7 (items 5, 8, 12 and 17) |
Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Act 2022 | 3, 2022 | 17 Feb 2022 | Sch 1 (items 96, 97): 18 Feb 2022 (s 2(1) item 3) | — |
Title....................................... | rs No 25, 1989 |
Part I heading......................... | ad No 25, 1989 |
s 1......................................... | am No 25, 1989 |
s 2......................................... | am No 62, 2004 |
s 2A....................................... | ad No 25, 1989 |
s 2B....................................... | ad No 25, 1989 |
rs No 145, 2015 | |
s 2C....................................... | ad No 25, 1989 |
rs No 160, 1991 | |
s 2D....................................... | ad No 97, 2010 |
Part II heading........................ | ad No 25, 1989 |
rs No 132, 2015 | |
s 3......................................... | am No 25, 1989; No 122, 2009; No 97, 2010; No 5, 2011; No 130, 2018 |
s 4......................................... | rep No 62, 2004 |
s 5......................................... | rep No 25, 1989 |
s 6......................................... | rep No 25, 1989 |
s 7......................................... | am No 25, 1989 |
s 8......................................... | am No 19, 1979; No 25, 1989; No 73, 2008; No 122, 2009; No 97, 2010; No 132, 2015; No 130, 2018; No 3, 2022 |
s 9......................................... | am No 25, 1989; No 73, 2008 |
ed C14 | |
s 10........................................ | am No 25, 1989; No 62, 2004; No 5, 2011 |
ed C14 | |
s 10A..................................... | ad No 141, 1987 |
am No 5, 2011 | |
s 11........................................ | rep No 25, 1989 |
s 12........................................ | am No 25, 1989 |
s 13........................................ | am No 25, 1989 |
s 14........................................ | am No 25, 1989 |
Part III .................................. | ad No 25, 1989 |
s 15........................................ | ad No 25, 1989 |
am No 97, 2010 | |
s 16........................................ | ad No 25, 1989 |
am No 97, 2010 | |
s 17........................................ | ad No 25, 1989 |
s 18........................................ | ad No 25, 1989 |
am No 122, 2009 | |
rs No 97, 2010 | |
am No 130, 2018 | |
s 18A..................................... | ad No 97, 2010 |
s 18B..................................... | ad No 97, 2010 |
s 18C..................................... | ad No 97, 2010 |
s 19........................................ | ad No 25, 1989 |
rs No 97, 2010 | |
s 20........................................ | ad No 25, 1989 |
s 21........................................ | ad No 25, 1989 |
rs No 97, 2010 | |
am No 113, 2015; No 130, 2018 | |
Division 3 heading.................. | rs No 97, 2010 |
s 22........................................ | ad No 25, 1989 |
rs No 97, 2010 | |
am No 132, 2015; No 130, 2018 | |
s 22A..................................... | ad No 97, 2010 |
s 23........................................ | ad No 25, 1989 |
rs No 97, 2010 | |
ss. 23A–23H........................... | ad. No. 97, 2010 |
s 23J...................................... | ad No 97, 2010 |
s 23K..................................... | ad No 97, 2010 |
s 24........................................ | ad No 25, 1989 |
s 25........................................ | ad No 25, 1989 |
am No 97, 2010 | |
s 26........................................ | ad No 25, 1989 |
rs No 97, 2010 | |
s 27........................................ | ad No 25, 1989 |
am No 97, 2010; No 130, 2018 | |
s 28........................................ | ad No 25, 1989 |
rs No 97, 2010 | |
s 29........................................ | ad No 25, 1989 |
s 30........................................ | ad No 25, 1989 |
rep No 132, 2015 | |
s 30A..................................... | ad No 97, 2010 |
Part IV .................................. | ad No 107, 1990 |
s 31........................................ | ad No 107, 1990 |
am No 5, 2011 | |
s 32........................................ | ad No 107, 1990 |
s 33........................................ | ad No 107, 1990 |
s 34........................................ | ad No 107, 1990 |
s 35........................................ | ad No 107, 1990 |
am No 122, 2009; No 97, 2010; No 3, 2022 | |
s 36........................................ | ad No 107, 1990 |
ed C14 | |
s 37........................................ | ad No 107, 1990 |
s 38........................................ | ad No 107, 1990 |
Part V.................................... | ad No 97, 2010 |
s 39........................................ | ad No 97, 2010 |
s 40........................................ | ad No 97, 2010 |
Schedule 1.............................. | am No 25, 1989 |
Schedule 2.............................. | ad No 25, 1989 |
rs No 97, 2010 | |
am No 67, 2016 | |
Schedule 3.............................. | ad No 107, 1990 |
In preparing this compilation for registration, the
following kinds of editorial change(s) were made under the
Change to typeface
This compilation was editorially changed to update four
occurrences of the italicised words
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