Enforcement of Domestic Awards - Chapter 7 - Arbitration Law of Australia: Practice and Procedure
Alex Baykitch is a Partner at King & Wood Mallesons in Sydney, Australia where his practices focuses on litigation & dispute resolution and international arbitration. Alex has over 20 years’ experience in the area of cross border litigation and international arbitration. Described by Chambers Global as "fast rising and energetic [lawyer]. . .who has developed into one of Australia's strongest arbitration counsel", Alex has particular experience of dispute in major construction, engineering and infrastructure.
Alex is consistently listed as a leading individual in legal directories, for his expertise in cross border litigation and international arbitration, and sits as sole and party appointed arbitrator as well as chairman of arbitral tribunals conducted under the ICC, LCIA, KLRCA, and UNCITRAL Rules. Alex is a Member of the Australian Government's Delegation to UNCITRAL's Working Group on Arbitration. He is also an Australian Delegate to the ICC Arbitration Commission and served on the Commission's Task Force on the New York Convention. Until recently, Alex was the Vice-President of the Australian Centre for International Commercial Arbitration (ACICA) and is a fellow of ACICA.
He is also a Member of the Arbitration panels of the ICC International Court of Arbitration, Singapore International Arbitration Centre, China Maritime Arbitration Commission, the Korean Commercial Arbitration Board and ACICA.
He has presented at numerous conferences and written on various topics in relation to international arbitration and is a co-author for the Australian chapter of World Arbitration Reporter.
Professor Doug Jones AO is a Sydney-based Partner in the Australian law firm of Clayton Utz where he heads the International Arbitration and Major Projects Groups of the firm. Doug is a door tenant at Atkin Chambers, London.
His experience includes acting as Arbitrator and Counsel in major international arbitrations, and advising on major projects in the areas of buildings, road and rail infrastructure, power, potable and waste water, mining infrastructure and processing, and on and offshore oil and gas. Doug sits as an international commercial and investor / state arbitrator.
Details of his arbitration experience can be found at www.dougjones.info.
Doug is currently President of the Australian Centre for International Commercial Arbitration, past President of the Chartered Institute of Arbitrators, London (2011), and a Member of the LCIA Court. He is an Australian Government nominee on the ICSID panel of arbitrators and a foundation fellow and graded arbitrator of the Institute of Arbitrators & Mediators Australia, Fellow, Arbitrators and Mediators Institute of New Zealand, President, Dispute Review Board Foundation Australia, member of the ICC Australia Arbitration Committee, and a member of a number of panels of International Arbitral bodies. In January 1999 Doug was made a Member of the Order of Australia in recognition of his services to construction law and dispute resolution, and in June 2012 Doug Jones was made an Officer of the Order of Australia, for distinguished service to the law as a leader in the areas of arbitration and alternative dispute resolution, to policy reform, and to national and international professional organisations.
He is Co-Editor in Chief of the International Construction Law Review and Editorial Board Member of International Trade and Business Law Review, India Business Law Journal and Global Arbitration Review. He is International correspondent for Australia of the Romanian Review of Arbitration. He lectures, and authors articles for publication, within Australia and internationally.
His expertise in International Arbitration and Construction has regularly been recognised by his peers.
Doug Jones has been described as "a phenomenon" and "the statesman of the industry" by Chambers Asia Pacific (2012).
The International Who's Who of Commercial Arbitration 2011 names Doug Jones as one of the Leaders Worldwide and is one of only three highly recommended individuals in Australia. It notes that "Doug Jones at Clayton Utz is held in the highest esteem".
ENFORCEMENT OF DOMESTIC AWARDS
7.1 ENFORCEMENT UNDER THE NEW CAAS
The New York Convention forms the basis of the enforcement provisions of the New CAAs with only minor amendments made to ensure the Convention’s applicability to domestic arbitration.
Enforcement of domestic awards may be distinguished from enforcement of foreign awards in that a domestic arbitral award will most likely be issued and enforced within the same jurisdiction however domestic awards may be enforced in any state or territory.
Section 36(1)(a) places the burden of proof on the party resisting enforcement. The party seeking enforcement is only required to provide the court with a copy of the original award.
7.2 ENFORCEMENT UNDER THE OLD CAAS
The enforcement of awards in the domestic context is governed by the Old CAAs. Section 33 of the Old CAAs provides:
“An award made under an Arbitration Agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect, and where leave is so given, judgment may be entered in terms of the award”.
Section 29 of the Old CAAs sets out the form requirements in relation to a valid arbitral award. In that regard, Section 29 states that:
1. “Unless otherwise agreed in writing by the parties to the arbitration agreement, the arbitrator or umpire shall:
i. Make the award in writing;
ii. Sign the award; and
iii. Include in the award a statement of the reasons for making the award.
CHAPTER 7 - ENFORCEMENT OF DOMESTIC AWARDS
7.1 Enforcement under the New CAAs
7.2 Enforcement under the Old CAAs