Albert Monichino SC (2013) 8(3) Construction Law International.

In an article published in the March 2012 edition of this journal, John Digby KC (now the Hon Justice Digby of the Supreme Court of Victoria) posed the question: ‘Is Australia unfriendly to arbitration?’ The question was posed in the light of the Victorian Court of Appeal’s decision in IMC Aviation Solutions Pty Ltd v Altain Khuder LLC, a notoriously difficult case involving the enforcement in Australia of an arbitral award (made in Mongolia) against a non-signatory to the arbitration agreement. Mr Digby (as he then was) argued that the decision should be limited to its unusual set of facts and did not (notwithstanding the views of some commentators) represent a lack of a ‘proarbitration’ approach by Australian courts.

Twelve months later, Australia’s apex court, the High Court of Australia, has confirmed in resounding fashion that Australia is arbitration-friendly. By its judgment in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (the ‘TCL case’), the High Court unanimously rejected a constitutional challenge to Australia’s adoption in the International Arbitration Act 1974 (Cth) (IAA) of the enforcement provisions contained in chapter VIII (Articles 35 and 36) of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (the ‘Model Law’). The Model Law has been adopted by over 60 nation states around the world and is the benchmark against which arbitral laws are measured.

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