The following Arbitration guidance note Produced in partnership with Jo Delaney of Baker McKenzie (Sydney) provides comprehensive and up to date legal information covering:
This Practice Note considers the role of state immunity in relation to arbitration proceedings in Australia. For a general introduction to state immunity and arbitration, see Practice Note: State immunity and arbitration—general considerations. In addition, for Practice Notes on state immunity in a number of jurisdictions around the world (including England and Wales), see our State immunity subtopic: State immunity and arbitration—overview.
State immunity in Australia is governed by the Foreign States Immunities Act 1985 (Cth) (FSI Act). The FSI Act applies to civil litigation in Australian courts involving 'foreign states' (as defined in the Act). Prior to the enactment of the FSI Act, state immunity was governed by the common law.
Similar to the UK State Immunity Act 1978, the FSI Act provides exceptions to immunity for commercial transactions and commercial property.
The FSI Act provides a separate provision (FSI Act, s 17) that addresses immunity in relation to arbitration proceedings and enforcement of arbitral awards.
This Practice Note summarises the approach to state immunity under the FSI Act generally and then considers the approach to arbitration proceedings.
State immunity under the FSI Act applies to foreign states. FSI Act, s 3(3) provides that a reference to a 'foreign state' in the FSI Act includes a reference to:
a province, state, self-governing territory or other political subdivision of the foreign state
the head of state or
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