ICLG International Arbitration 2025: The Evolving Enforcement Landscape In Australia For Arbitral Awards Against Sovereigns

This chapter was originally published in the International Comparative Legal Guide (ICLG) International Arbitration 2025.

Over recent years, claimant investors with awards of damages won in investment treaty arbitration have increasingly been turning to Australia for recognition and enforcement of their awards against respondent States. This trend has been spearheaded by a series of decisions handed down by Australian courts, which have reinforced Australia's reputation as a pro-arbitration jurisdiction, adopted approaches that streamlined the process for recognition and enforcement, and rejected States' attempt at resisting recognition and enforcement on the basis of foreign state immunity.

This chapter discussed the different enforcement frameworks that apply with respect to awards governed by the 1966 Convention on the Settlement of Investment Disputes (ICSID Convention) and awards governed by the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). ICSID and non-ICSID award creditors alike may confront a taxing path to recognition and enforcement of an award against a recalcitrant State in circumstances where issues of sovereign immunity are left either entirely to the enforcing State's national legislation (in the case of the New York Convention, which is silent on matters of sovereign immunity) or are dealt with only partially in the convention (in the case of the ICSID Convention).

Australia is arguably trending as an attractive forum for overcoming these obstacles. By virtue of its local procedures, novel approaches to construing waivers of sovereign immunity by reference to treaty obligations requiring recognition and enforcement, and a general pro-arbitration attitude, investors globally are expected to continue to consider Australian municipal courts as a vehicle for obtaining practical relief against sovereign award debtors. However, investors should be aware that some questions in this area are yet to be authoritatively determined, such as the scope of any waiver of foreign state immunity in respect of recognition and enforcement of awards under the New York Convention.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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