1974年澳大利亚国际仲裁法
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1974年澳大利亚国际仲裁法

 

International Arbitration Act 1974

Part I. Preliminary

1.SHORT TITLE OF PRINCIPAL ACT

This Act may be cited as the International Arbitration Act 1974.

2.COMMENCEMENT

(1)  Sections 1, 2, 3 and 4 shall come into operation on the day on which this Act receives the Royal Assent.
(2)  The remaining provisions of this Act shall come into operation on a date to be fixed by Proclamation, being a date not earlier than the date on which the Convention enters into force for Australia.

2A.TERRITORIES

This Act extends to all external Territories.

2B.CROWN TO BE BOUND

This Act binds the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island.

2C.CARRIAGE OF GOODS BY SEA

Nothing in this Act affects:

(a) the continued operation of section 9 of the Sea-Carriage of Goods Act 1924 under subsection 20 (2) of the Carriage of Goods by Sea Act 1991; or

(b) the operation of section 11 or 16 of the Carriage of Goods by Sea Act 1991.

 

Part II. Enforcement of Foreign Awards

3.INTERPRETATION

(1)  In this Part, unless the contrary intention appears:

“agreement in writing” has the same meaning as in the Convention;

“arbitral award” has the same meaning as in the Convention;

“arbitration agreement” means an agreement in writing of the kind referred to in sub-article 1 of Article II of the Convention;

“Australia” includes the Territories;

“Convention” means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in 1958 by the United Nations Conference on International Commercial Arbitration at its twenty-fourth meeting, a copy of the English text of which is set out in Schedule 1; (1)

“Convention country” means a country (other than Australia) that is a Contracting State within the meaning of the Convention;

“court” means any court in Australia, including a court of a State or Territory;

“foreign award” means an arbitral award made, in pursuance of an arbitration agreement, in a country other than Australia, being an arbitral award in relation to which the Convention applies.

(2)  In this Part, where the context so admits, “enforcement”, in relation to a foreign award, includes the recognition of the award as binding for any purpose, and “enforce” and “enforced” have corresponding meanings.
(3)  For the purposes of this Part, a body corporate shall be taken to be ordinarily resident in a country if, and only if, it is incorporated or has its principal place of business in that country.

4.ACCESSION TO CONVENTION

Approval is given to accession by Australia to the Convention without any declaration under sub-article 3 of Article I but with a declaration under Article X that the Convention shall extend to all the external Territories other than Papua New Guinea.

 

7. ENFORCEMENT OF FOREIGN ARBITRATION AGREEMENTS

(1)  Where:

(a) the procedure in relation to arbitration under an arbitration agreement is governed, whether by virtue of the express terms of the agreement or otherwise, by the law of a Convention country;

(b) the procedure in relation to arbitration under an arbitration agreement is governed, whether by virtue of the express terms of the agreement or otherwise, by the law of a country not being Australia or a Convention country, and a party to the agreement is Australia or a State or a person who was, at the the time when the agreement was made, domiciled or ordinarily resident in Australia;

(c) a party to an arbitration agreement is the Government of a Convention country or of part of a Convention country or the Government of a territory of a Convention country, being a territory to which the Convention extends; or

(d) a party to an arbitration agreement is a person who was, at the time when the agreement was made, domiciled or ordinarily resident in a country that is a Convention country;

this section applies to the agreement.
(2)  Subject to this Part, where:

(a) proceedings instituted by a party to an arbitration agreement to which this section applies against another party to the agreement are pending in a court; and

(b) the proceedings involve the determination of a matter that, in pursuance of the agreement, is capable of settlement by arbitration;

on the application of a party to the agreement, the court shall, by order, upon such conditions (if any) as it thinks fit, stay the proceedings or so much of the proceedings as involves the determination of that matter, as the case may be, and refer the parties to arbitration in respect of that matter.
(3)  Where a court makes an order under subsection (2), it may, for the purpose of preserving the rights of the parties, make such interim or supplementary orders as it thinks fit in relation to any property that is the subject of the matter to which the first-mentioned order relates.
(4)  For the purposes of subsections (2) and (3), a reference to a party includes a reference to a person claiming through or under a party.
(5)  A court shall not make an order under subsection (2) if the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed.

8.RECOGNITION OF FOREIGN AWARDS

(1)  Subject to this Part, a foreign award is binding by virtue of this Act for all purposes on the parties to the arbitration agreement in pursuance of which it was made.
(2)  Subject to this Part, a foreign award may be enforced in a court of a State or Territory as if the award had been made in that State or Territory in accordance with the law of that State or Territory.
(4)  Where:

(a) at any time, a person seeks the enforcement of a foreign award by virtue of this Part; and

(b) the country in which the award was made is not, at that time, a Convention country;

subsections (1) and (2) do not have effect in relation to the award unless that person is, at that time, domiciled or ordinarily resident in Australia or in a Convention country.
(5)  Subject to subsection (6), in any proceedings in which the enforcement of a foreign award by virtue of this Part is sought, the court may, at the request of the party against whom it is invoked, refuse to enforce the award if that party proves to the satisfaction of the court that:

(a) that party, being a party to the arbitration agreement in pursuance of which the award was made, was, under the law applicable to him, under some incapacity at the time when the agreement was made;

(b) the arbitration agreement is not valid under the law expressed in the agreement to be applicable to it or, where no law is so expressed to be applicable, under the law of the country where the award was made;

(c) that party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case in the arbitration proceedings;

(d) the award deals with a difference not contemplated by, or not falling within the terms of, the submission to arbitration, or contains a decision on a matter beyond the scope of the submission to arbitration;

(e) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

(f) the award has not yet become binding on the parties to the arbitration agreement or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made.

(6)  Where an award to which paragraph (5) (d) applies contains decisions on matters submitted to arbitration and those decisions can be separated from decisions on matters not so submitted, that part of the award which contains decisions on matters so submitted may be enforced.
(7)  In any proceedings in which the enforcement of a foreign award by virtue of this Part is sought, the court may refuse to enforce the award if it finds that:

(a) the subject matter of the difference between the parties to the award is not capable of settlement by arbitration under the laws in force in the State or Territory in which the court is sitting; or

(b) to enforce the award would be contrary to public policy.

(8)  Where, in any proceedings in which the enforcement of a foreign award by virtue of this Part is sought, the court is satisfied that an application for the setting aside or suspension of the award has been made to a competent authority of the country in which, or under the law of which, the award was made, the court may, if it considers it proper to do so, adjourn the proceedings, or so much of the proceedings, a relates to the award, as the case may be, and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.

9. EVIDENCE OF AWARDS AND ARBITRATION AGREEMENTS

(1)  In any proceedings in which a person seeks the enforcement of a foreign award by virtue of this Part, he shall produce to the court:

(a) the duly authenticated original award or a duly certified copy; and

(b) the original arbitration agreement under which the award purports to have been made or a duly certified copy.

(2)  For the purposes of subsection (1), an award shall be deemed to have been duly authenticated, and a copy of an award or agreement shall be deemed to have been duly certified, if:

(a) it purports to have been authenticated or certified, as the case may be, by the arbitrator or, where the arbitrator is a tribunal, by an officer of that tribunal, and it has not been shown to the court that it was not in fact so authenticated or certified; or

(b) it has been otherwise authenticated or certified to the satisfaction of the court.

 (3)  If a document or part of a document produced under subsection (1) is written in a language other than English, there shall be produced with the document a translation, in the English language, of the document or that part, as the case may be, certified to be a correct translation.
(4)  For the purposes of subsection (3), a translation shall be certified by a diplomatic or consular agent in Australia of the country in which the award was made or otherwise to the satisfaction of the court.
(5)  A document produced to a court in accordance with this section is, upon mere production, receivable by the court as prima facie evidence of the matters to which it relates.

10.EVIDENCE RELATING TO CONVENTION

(1)  For the purposes of this Part, a certificate purporting to be signed by the Secretary to the Department of Foreign Affairs and stating that a country specified in the certificate is, or was at a time so specified, a Convention country is, upon mere production, receivable in any proceedings as prima facie evidence of that fact.
(2)  For the purposes of this Part, a copy of the Gazette containing a Proclamation fixing a date under subsection 2 (2) is, upon mere production, receivable in any proceedings as prima facie evidence of:

(a) the fact that Australia has acceded to the Convention in accordance with section 4; and

(b) the fact that the Convention entered into force for Australia on or before the date so fixed.

 

10A.DELEGATION BY SECRETARY TO THE DEPARTMENT OF FOREIGN AFFAIRS AND TRADE

(1)  The Secretary may, either generally or as otherwise provided by the instrument of delegation, in writing, delegate to the person occupying a specified office in the Department of Foreign Affairs and Trade all or any of the Secretary's powers under subsection 10 (1).
(2)  A power delegated under subsection (1) shall, when exercised by the delegate, be deemed to have been exercised by the Secretary.
(3)  The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Secretary.
(4)  The delegation of a power under subsection (1) does not prevent the exercise of the power by the Secretary.
(5)  In this section, “Secretary” means the Secretary to the Department of Foreign Affairs and Trade.

12.EFFECT OF THIS PART ON OTHER LAWS

(1)  This Part applies to the exclusion of any provisions made by a law of a State or Territory with respect to the recognition of arbitration agreements and the enforcement of foreign awards, being provisions that operate in whole or in part by reference to the Convention.
(2)  Except as provided in subsection (1), nothing in this Part affects the right of any person to the enforcement of a foreign award otherwise than in pursuance of this Act.

13.JUDICIARY ACT

A matter arising under this Part, including a question of interpretation of the Convention for the purposes of this Act, shall, for the purposes of section 38 of the Judiciary Act 1903-1973, be deemed not to be a matter arising directly under a treaty.

14.APPLICATION OF PART

The application of this Part extends to agreements and awards made before the date fixed under subsection 2 (2), including agreements and awards made before the day referred to in subsection 2 (1).

Part III. International Commercial Arbitration

Division 1 - Preliminary

15.INTERPRETATION

(1)  In this Part: “Model Law” means the UNCITRAL Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985, the English text of which is set out in Schedule 2. (2)
(2)  Except so far as the contrary intention appears, a word or expression that is used both in this Part and in the Model Law (whether or not a particular meaning is given to it by the Model Law) has, in this Part, the same meaning as it has in the Model Law.

Division 2 - Model Law

16.MODEL LAW TO HAVE FORCE OF LAW

(1)  Subject to this Part, the Model Law has the force of law in Australia.
(2)  In the Model Law:

“State” means Australia (including the external Territories) and any foreign country;

“this State” means Australia (including the external Territories).

 

17. INTERPRETATION OF MODEL LAW - USE OF EXTRINSIC MATERIAL

(1)  For the purposes of interpreting the Model Law, reference may be made to the documents of:

(a) the United Nations Commission on International Trade Law; and

(b) its working group for the preparation of the Model Law; relating to the Model Law.

(2)  Subsection (1) does not affect the application of section 15AB of the Acts Interpretation Act 1901 for the purposes of interpreting this Part.

18. COURTS SPECIFIED FOR PURPOSES OF ARTICLE 6 OF MODEL LAW

The following courts shall be taken to have been specified in Article 6 of the Model Law as courts competent to perform the functions referred to in that article:

(a) if the place of arbitration is, or is to be, in a State - the Supreme Court of that State;

(b) if the place of arbitration is, or is to be, in a Territory:

(i) the Supreme Court of that Territory; or

(ii) if there is no Supreme Court established in that Territory - the Supreme Court of the State or Territory that has jurisdiction in relation to that Territory.

 

19. ARTICLES 34 AND 36 OF MODEL LAW - PUBLIC POLICY

Without limiting the generality of subparagraphs 34 (2) (b) (ii) and 36 (1) (b) (ii) of the Model Law, it is hereby declared, for the avoidance of any doubt, that, for the purposes of those subparagraphs, an award is in conflict with the public policy of Australia if:

(a) the making of the award was induced or affected by fraud or corruption; or

(b) a breach of the rules of natural justice occurred in connection with the making of the award.

 

20. CHAPTER VIII OF MODEL LAW NOT TO APPLY IN CERTAIN CASES

Where, but for this section, both Chapter VIII of the Model Law and Part II of this Act would apply in relation to an award, Chapter VIII of the Model Law does not apply in relation to the award.

21. SETTLEMENT OF DISPUTE OTHERWISE THAN IN ACCORDANCE WITH MODEL LAW

If the parties to an arbitration agreement have (whether in the agreement or in any other document in writing) agreed that any dispute that has arisen or may arise between them is to be settled otherwise than in accordance with the Model Law, the Model Law does not apply in relation to the settlement of that dispute.

Division 3 - Optional Provisions

22.APPLICATION OF OPTIONAL PROVISIONS

If the parties to an arbitration agreement have (whether in the agreement or in any other document in writing) agreed that the other provisions, or any of the other provisions, of this Division are to apply in relation to the settlement of any dispute (being a dispute that is to be settled in accordance with the Model Law) that has arisen or may arise between them, those provisions apply in relation to the settlement of that dispute.

23.ORDERS UNDER ARTICLE 17 OF THE MODEL LAW

Chapter VIII of the Model Law applies to orders by an arbitral tribunal under Article 17 of the Model Law requiring a party:

(a) to take an interim measure of protection; or

(b) to provide security in connection with such a measure;

as if any reference in that chapter to an arbitral award or an award were a reference to such an order.

24.CONSOLIDATION OF ARBITRAL PROCEEDINGS

(1)  A party to arbitral proceedings before an arbitral tribunal may apply to the tribunal for an order under this section in relation to those proceedings and other arbitral proceedings (whether before that tribunal or another tribunal or other tribunals) on the ground that:

(a) a common question of law or fact arises in all those proceedings;

(b) the rights to relief claimed in all those proceedings are in respect of, or arise out of, the same transaction or series of transactions; or

(c) for some other reason specified in the application, it is desirable that an order be made under this section.

(2)  The following orders may be made under this section in relation to 2 or more arbitral proceedings:

(a) that the proceedings be consolidated on terms specified in the order;

(b) that the proceedings be heard at the same time or in a sequence specified in the order;

(c) that any of the proceedings be stayed pending the determination of any other of the proceedings.

(3)  Where an application has been made under subsection (1) in relation to 2 or more arbitral proceedings (in this section called the “related proceedings”), the following provisions have effect.
(4)  If all the related proceedings are being heard by the same tribunal, the tribunal may make such order under this section as it thinks fit in relation to those proceedings and, if such an order is made, the proceedings shall be dealt with in accordance with the order.
(5)  If 2 or more arbitral tribunals are hearing the related proceedings:

(a)

the tribunal that received the application shall communicate the substance of the application to the other tribunals concerned; and

(b)

the tribunals shall, as soon as practicable, deliberate jointly on the application.

(6)  Where the tribunals agree, after deliberation on the application, that a particular order under this section should be made in relation to the related proceedings:

(a) the tribunals shall jointly make the order;

(b) the related proceedings shall be dealt with in accordance with the order; and

(c) if the order is that the related proceedings be consolidated - the arbitrator or arbitrators for the purposes of the consolidated proceedings shall be appointed, in accordance with Articles 10 and 11 of the Model Law, from the members of the tribunals.

(7)  If the tribunals are unable to make an order under subsection (6), the related proceedings shall proceed as if no application has been made under subsection (1).
(8)  This section does not prevent the parties to related proceedings from agreeing to consolidate them and taking such steps as are necessary to effect that consolidation.

25.INTEREST UP TO MAKING OF AWARD

(1)  Unless the parties to an arbitration agreement have (whether in the agreement or in any other document in writing) otherwise agreed, where an arbitral tribunal determines to make an award for the payment of money (whether on a claim for a liquidated or an unliquidated amount), the tribunal may, subject to subsection (2), include in the sum for which the award is made interest, at such reasonable rate as the tribunal determines on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.
(2)  Subsection (1) does not:

(a) authorise the awarding of interest upon interest;

(b) apply in relation to any amount upon which interest is payable as of right whether by virtue of an agreement or otherwise; or

(c) affect the damages recoverable for the dishonour of a bill of exchange.

 

26.INTEREST ON DEBT UNDER AWARD

Unless the parties to an arbitration agreement have (whether in the agreement or in any other document in writing) otherwise agreed, where an arbitral tribunal makes an award for the payment of money, the tribunal may direct that interest, at such reasonable rate as the tribunal determines, is payable, from the day of the making of the award or such later day as the tribunal specifies, on so much of the money as is from time to time unpaid and any interest that so accrues shall be deemed to form part of the award.

27.COSTS

(1)  Unless the parties to an arbitration agreement have (whether in the agreement or in any other document in writing) otherwise agreed, the costs of an arbitration (including the fees and expenses of the arbitrator or arbitrators) shall be in the discretion of the arbitral tribunal.
(2)  An arbitral tribunal may in making an award:

(a) direct to whom, by whom, and in what manner, the whole or any part of the costs that it awards shall be paid;

(b) tax or settle the amount of costs to be so paid or any part of those costs; and

(c) award costs to be taxed or settled as between party and party or as between solicitor and client.

(3)  Any costs of an arbitration (other than the fees or expenses of an arbitrator) that are directed to be paid by an award are, to the extent that they have not been taxed or settled by the arbitral tribunal, taxable in the Court having jurisdiction under Article 34 of the Model Law to hear applications for setting aside the award.
(4)  If no provision is made by an award with respect to the costs of the arbitration, a party to the arbitration agreement may, within 14 days after receiving the award, apply to the arbitral tribunal for directions as to the payment of those costs, and thereupon the tribunal shall, after hearing any party who wishes to be heard, amend the award by adding to it such directions as the tribunal thinks proper with respect to the payment of the costs of the arbitration.

Division 4 - Miscellaneous

28.LIABILITY OF ARBITRATOR

An arbitrator is not liable for negligence in respect of anything done or omitted to be done in the capacity of arbitrator, but is liable for fraud in respect of anything done or omitted to be done in that capacity.

29.REPRESENTATION IN PROCEEDINGS

(1)  Where, in accordance with the Model Law, with the agreement of the parties or at the request of a party, as the case may be, the arbitral tribunal holds oral hearings for the presentation of evidence or for oral argument, or conducts proceedings on the basis of documents or other materials, the following provisions shall, without prejudice to the Model Law, apply.
(2)  A party may appear in person before an arbitral tribunal and may be represented:

(a) by himself or herself;

(b) by a duly qualified legal practitioner from any legal jurisdiction of that party's choice; or

(c) by any other person of that party's choice.

(3)  A legal practitioner or a person, referred to in paragraphs (2) (b) or (c) respectively, while acting on behalf of a party to an arbitral proceeding to which Part III applies, including appearing before an arbitral tribunal, shall not thereby be taken to have breached any law regulating admission to, or the practice of, the profession of the law within the legal jurisdiction in which the arbitral proceedings are conducted.
(4)  Where, subject to the agreement of the parties, an arbitral tribunal conducts proceedings on the basis of documents and other materials, such documents and materials may be prepared and submitted by any legal practitioner or person who would, under subsection (2), be entitled to appear before the tribunal, and, in such a case, subsection (3) shall apply with the same force and effect to such a legal practitioner or person.

30.APPLICATION OF PART

This Part does not apply in relation to an international commercial arbitration between parties to an arbitration agreement that was concluded before the commencement of this Part unless the parties have (whether in the agreement or in any other document in writing) otherwise agreed.

Part IV. Application of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States

Division 1 - Preliminary

31.INTERPRETATION

(1)  In this Part:

“award” includes:

(a) an interpretation of an award under Article 50; and

(b) a revision of an award under Article 51; and

(c) an annulment of an award under Article 52;

“Department” means the Department of the Commonwealth primarily responsible for matters relating to foreign affairs;

“Investment Convention” means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States signed by Australia on 24 March 1975, the English text of which is set out in Schedule 3; (3)

'Secretary” means the Secretary to the Department.

(2)  Except so far as the contrary intention appears, a word or expression used in this Part and in the Investment Convention (whether or not a particular meaning is given to it in the Investment Convention) has, in this Part, the same meaning as it has in the Investment Convention.
(3)  A reference in this Part to a numbered Article is a reference to the Article so numbered in the Investment Convention.

Division 2 - Investment Convention

32. APPLICATION OF INVESTMENT CONVENTION TO AUSTRALIA

Subject to this Part, Chapters II to VII (inclusive) of the Investment Convention have the force of law in Australia.

33.AWARD IS BINDING

(1)  An award is binding on a party to the investment dispute to which the award relates.
(2)  An award is not subject to any appeal or to any other remedy, otherwise than in accordance with the Investment Convention.

34. INVESTMENT CONVENTION AWARDS TO PREVAIL OVER OTHER LAWS

Other laws relating to the recognition and enforcement of arbitral awards, including the provisions of Parts II and III, do not apply to:

(a) a dispute within the jurisdiction of the Centre; or

(b) an award under this Part.

 

35.RECOGNITION OF AWARDS

(1)  The Supreme Court of each State and Territory is designated for the purposes of Article 54.
(2)  An award may be enforced in the Supreme Court of a State or Territory as if the award had been made in that State or Territory in accordance with the law of the State or Territory.

Division 3 - Miscellaneous

36. EVIDENCE RELATING TO INVESTMENT CONVENTION

(1)  A certificate purporting to be signed by the Secretary and stating that a country specified in the certificate is, or was at a time so specified, a Contracting State is, upon mere production, receivable in any proceedings as prima facie evidence of that fact.
(2)  The Secretary may, by signed instrument, delegate the power to sign a certificate under subsection (1) to the holder of a specified office in the Department.

37.REPRESENTATION IN PROCEEDINGS

(1)  A party appearing in conciliation or arbitration proceedings may appear in person and may be represented:

(a) by himself or herself; or

(b) by a duly qualified legal practitioner from any legal jurisdiction of the party's choice; or

(c) by any other person of the party's choice.

(2)  A legal practitioner or a person referred to in paragraph (1) (b) or (c) respectively, while acting on behalf of a party to conciliation or arbitration proceedings, is not thereby to be taken to have breached any law regulating admission to, or the practice of, the profession of the law within the legal jurisdiction in which the proceedings are being conducted.
(3)  Where conciliation or arbitration proceedings are conducted on the basis of documents and other materials, the documents and materials may be prepared and submitted by any legal practitioner or person who would, under subsection (1), be entitled to appear in those proceedings, and, in such a case, subsection (2) applies with the same force and effect to such a legal practitioner or person.

38.JUDICIARY ACT

A matter arising under this Part, including a question of interpretation of the Investment Convention for the purposes of this Part, is not taken to be a matter arising directly under a treaty for the purposes of section 38 of the Judiciary Act 1903.

 


附表一包括纽约公约,见本仲裁库相关部分。

附表二包括联合国国际贸易法委员会仲裁示范法,见本仲裁库相关部分。附表三包括华盛顿公约,见本仲裁库相关部分。