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Is Australia unfriendly to arbitration?

by John Digby

John Digby KC (2012) V7 No 1 Construction Law International 38.

In August 2011, a decision of the Supreme Court of Victoria relating to a Mongolian arbitral award appears to have caused some concern in the international arbitration community. In that case, IMC Aviation Solutions Pty Ltd v Altain Khuder LLC4 (‘Altain Khuder‘), the Victorian Court of Appeal refused to enforce an arbitral award made in Mongolia. The decision has caused some commentators and experts to speculate that Australia may be unfriendly to arbitration, raising fears of uncertainty and the lack of a ‘pro-arbitration’ approach. Some comments have evoked the spectre of long-gone days of judicial tinkering behind the face of arbitral awards. Such speculation and concern is unfounded. The decision in Altain Khuder turned on its facts: facts unlikely to arise in all but the most unusual of cases. In ordinary circumstances, the enforcement of foreign arbitral awards in Australia remains the subject of a streamlined, certain and efficient system. As one judge in Altain Khuder remarked, the general principle remains that, ‘in all but the most unusual cases, application to enforce foreign arbitral awards should involve only a summary procedure’.

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