In late 2015, the Australian International Arbitration Act was amended to make the legislative framework for arbitration in Australia more pro-enforcement. This aligns with a shift in the judicial attitude towards the enforcement of foreign arbitration awards where we now have courts in Australia, both federal and state, handing down a series of very pro-enforcement decisions.
The interesting thing that this development presents is that, particularly with the large resource projects (for example, the large oil and gas projects), contracts on those projects were entered into at a time when the legislative framework was completely different to what it is today and importantly judicial attitudes were completely different.
Those parties now find themselves in a world where awards, whether they are good or bad awards, are going to be enforced without any legal ability to challenge the awards. That gap between expectation and reality is something that hasn’t yet come home for the commercial world but it will soon. You will see people having disputes and not appreciating the significance of the process that they find themselves in is now one that is truly final. They won’t get a second bite at the cherry.
It is going to be interesting to see how that shift in the judicial and legislative approach to the enforcement of foreign awards plays out in a commercial sense over the coming years.