TM25 Holding B.V. v Ghamloush (No.2)

TM25 Holding B.V. (the applicant) sought to enforce a foreign arbitral award against Ghamloush (the respondent). The dispute concerned the applicant's claim for payment under a loan agreement, which had been the subject of arbitration in the Netherlands. The applicant sought to enforce the award in Australia under the *International Arbitration Act 1974* (Cth).

The primary legal issue before the Federal Court of Australia was whether the respondent had established any of the grounds for refusing enforcement of the award as provided by Article 36 of the Fourth Schedule to the *International Arbitration Act 1974* (Cth), which mirrors Article 36 of the UNCITRAL Model Law on International Commercial Arbitration. Specifically, the respondent argued that the award was contrary to Australian public policy and that he had not been given proper notice of the appointment of the arbitrator or of the arbitral proceedings.

Judge Riley found that the respondent had failed to demonstrate that the award was contrary to Australian public policy. The court noted that the public policy ground for refusing enforcement is to be interpreted narrowly and requires a breach of fundamental notions of justice and morality. The respondent's arguments regarding the alleged lack of notice were also dismissed, with the court finding that the respondent had been provided with adequate notice and had participated in the arbitration. The court applied the principles of international comity and the importance of upholding international arbitral awards.

The court ordered that the Dutch arbitral award be recognised and enforced in Australia.