In the recent decision of Tianjin Jishengtai Investment Consulting Partnership Enterprise v Huang [2020] FCA 767, the Federal Court of Australia (FCA) determined that an award made in the People’s Republic of China by the China International and Trade Arbitration Commission on 3 September 2018 (CIETAC Award) should be enforced in Australia. In particular, the court held that the appropriate form of order for enforcement would be a declaration pursuant to section 8(3) of the International Arbitration Act 1974 (Cth) (IAA), that the Applicant was entitled to enforce the award against the Respondent as if the award were a judgment of the court.

Background

The Applicant applied to the FCA to enforce the CIETAC Award under section 8 of the IAA.  Section 8 provides for the recognition of foreign arbitral awards in Australia, including awards made under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

The Respondent opposed the application, arguing that:

  • the Applicant had not adequately followed the provisions of sections 9(1)(a) and (b) of the IAA, which requires a duly certified copy of the CIETAC Award and duly certified copies of the original arbitration agreements to be provided; and
  • the form of the orders sought by the Applicant did not reflect the form of the CIETAC Award.

In addition, the parties disagreed on two supplementary issues: first, whether the award should be enforced by the court in Australian dollars or in the award currency; and second, whether post-award interest should be awarded by the court in circumstances where the CIETAC Award did not provide for post-award interest.

Federal Court of Australia decision

The FCA enforced the CIETAC Award. The FCA first considered the framework of the IAA and in particular, section 39 of the IAA. Section 39 provides that a court is obliged to consider the objects of the IAA, including that arbitration is intended to be an expeditious, efficient, impartial and enforceable method to resolving disputes, in considering whether to enforce a foreign award.

Her Honour disagreed with the Respondent that the provisions of section 9(1)(a) and (b) had not been satisfied. Instead, her Honour found that the Applicant had provided properly certified copies of the CIETAC Award and original arbitration agreements in compliance with the provisions of the IAA.

Her Honour accepted the Respondent’s argument that the form of the orders sought did not reflect the form of the CIETAC Award.  As a result, her Honour directed the parties to confer to determine an appropriate form of order in the form of a declaration as to the enforceability of the CIETAC Award.

Finally, in respect of the parties’ disagreement on the issue of currency, her Honour found that the award should be converted into Australian dollars.  With respect to the issue of interest, her Honour held that there should not be an award for post-award interest as the CIETAC Award did not provide for this and her Honour determined that the judgment should reflect the terms of the CIETAC Award.

Implications

This decision emphasises that the Australian courts continue to rely heavily upon the purpose and objects of the IAA in assessing whether to enforce a foreign arbitral award and will adopt a supportive approach to the enforcement of foreign awards in Australia.  Additionally, it highlights that the Australian courts take a pragmatic approach to issues that arise in the context of enforcement in order to ensure that arbitration remains an effective, efficient and expeditious dispute resolution process.

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