Challenging arbitral jurisdiction and anti-suit measures in Australia
Produced in partnership with Jo Delaney of Baker McKenzie (Sydney)
Challenging arbitral jurisdiction and anti-suit measures in Australia

The following Arbitration guidance note Produced in partnership with Jo Delaney of Baker McKenzie (Sydney) provides comprehensive and up to date legal information covering:

  • Challenging arbitral jurisdiction and anti-suit measures in Australia
  • Stay of court proceedings by the Australian courts
  • Anti-suit injunctions
  • Challenge to the tribunal's jurisdiction
  • Process for applying to challenge an arbitral award to set it aside (including challenging on the basis that the tribunal did not have jurisdiction)

This Practice Note addresses the following issues:

  1. stay of court proceedings in favour of arbitration,

  2. granting anti-suit injunctions by the Australian courts, and

  3. challenging the tribunal's determination on jurisdiction

Note that international arbitration in Australia is governed by the International Arbitration Act 1974 (Cth) (IAA). The IAA implements the UNCITRAL Model Law (the Model Law), which is attached at Schedule 2 to the IAA. Some provisions of the Model Law are modified by the IAA.

The IAA also implements the New York Convention which is attached at Schedule 1 to the IAA.

Note: the Australian and other international judgments referred to in this Practice Note are not reported by LexisNexis® UK.

Stay of court proceedings by the Australian courts

The Australian courts have the power to stay court proceedings in favour of arbitration under:

  1. section 7 of the IAA

  2. Article 8 of the Model Law, and

  3. its inherent jurisdiction (Vantage Holdings v JHC Developments Group [2011] QSC 155)

The inherent power of the court to stay proceedings pending the outcome of an arbitration is rarely used.

Some applications for a stay rely on both section 7 of the IAA and Article 8 of the Model Law. However, most applications are made under section 7 of the IAA only.

Section 7 of the IAA provides for the enforcement of arbitration agreements by the courts. The terms of