On 23 January 2012, Murphy J handed down his reasons for finding that the Federal Court has jurisdiction to enforce an international arbitration award made in Australia. His Honour is yet to deal with the other issues raised in the proceedings.
The requirement to enforce an international arbitration award (wherever made) is found in art 35 of the Model Law, with art 36 providing a narrow set of circumstances when enforcement can be refused.
Articles 35 and 36 of the Model Law, however, refer only to a “competent court” being required to enforce awards and do not provide the manner in which an award is to be enforced. This can be contrasted with the position of foreign awards, where s 8 of the International Arbitration Act 1974 (Cth) expressly confers jurisdiction to enforce on the Federal Court and State and Territory Supreme Courts, and requires those courts to enforce awards as if the award were an order of the relevant court.
Justice Murphy reasoned that s 39B(1A)(c) of the Judiciary Act 1903 (Cth), read with the Model Law and s 54 of the Federal Court of Australia Act 1976 (Cth) all combined to confer the Federal Court with jurisdiction to enforce awards in accordance with arts 35 and 36 as follows:
- Section 39B(1A)(c) of the Judiciary Act 1903 (Cth) confers the Federal Court with jurisdiction in any matter arising under a law of the Commonwealth Parliament;
- The enforcement of non-foreign awards was a “matter” and it arises under a law of the Commonwealth Parliament as the International Arbitration Act 1974 (Cth) (as construed by his Honour) requires the Court to enforce a non-foreign award consistent with art 35 of the Model Law;
- Section 54 of the Federal Court of Australia Act 1976 (Cth) then provides the mechanism for enforcement, by conferring the Court with power to enforce an arbitral award as if it were an order of the Court.