With so much trade between China
and Australia the question arises of how to resolve disputes when agreements are
breached.
Many commercial agreements now include arbitration provisions for resolving disputes.
Disputes between Chinese companies and their Australian counterparts may be subject to the United Nations Commission on International Trade Law (UNCITRL) and its arbitration rules.
Where contracting parties have an arbitration clause in their agreement and a dispute arises the parties submit to arbitration and an award is made.
Once an award is made for money in favour of the Chinese company, the question is how does that company enforce its award against a company based in Australia.
An award made in China can be recognised and enforced in Australia under the International Arbitration Act 1974 in an Australian court that has jurisdiction over the amount of the award.
The Chinese company needs to ascertain the state in Australia in which the Australian company has its registered office and may then take proceedings in that state in the appropriate court to have the award recognised.
The Australian company can object to the recognition of the award on grounds set out in section 8 of the Act.
The main grounds for objection are that the award is not final, in the sense that it can or is subject to appeal or that the making of the award was induced or affected by fraud or corruption.
If the Australian court decides that an objection is not valid the award becomes an order of that court. Depending on the amount, the award/order can be enforced by a warrant to seize the Australian company’s goods or commencing winding up proceedings under the Corporations Act 2001.
If you require assistance in recognising and enforcing an award in Australia please contact Greg Doran in our litigation department.
Many commercial agreements now include arbitration provisions for resolving disputes.
Disputes between Chinese companies and their Australian counterparts may be subject to the United Nations Commission on International Trade Law (UNCITRL) and its arbitration rules.
Where contracting parties have an arbitration clause in their agreement and a dispute arises the parties submit to arbitration and an award is made.
Once an award is made for money in favour of the Chinese company, the question is how does that company enforce its award against a company based in Australia.
An award made in China can be recognised and enforced in Australia under the International Arbitration Act 1974 in an Australian court that has jurisdiction over the amount of the award.
The Chinese company needs to ascertain the state in Australia in which the Australian company has its registered office and may then take proceedings in that state in the appropriate court to have the award recognised.
The Australian company can object to the recognition of the award on grounds set out in section 8 of the Act.
The main grounds for objection are that the award is not final, in the sense that it can or is subject to appeal or that the making of the award was induced or affected by fraud or corruption.
If the Australian court decides that an objection is not valid the award becomes an order of that court. Depending on the amount, the award/order can be enforced by a warrant to seize the Australian company’s goods or commencing winding up proceedings under the Corporations Act 2001.
If you require assistance in recognising and enforcing an award in Australia please contact Greg Doran in our litigation department.
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