Australian Domestic Legislation - Foreign Investment & Dispute Settlement
The International Arbitration Act 1974 (Cth) is the Australian Commonwealth Act applicable to international commercial arbitration, including investment arbitration.* The Act gives effect to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (The ICSID Convention - incorporated into the Act as Schedule 3), and the UNCITRAL Model Law on International Commercial Arbitration (incorporated into the Act as Schedule 2).
Arbitral awards are binding on the parties to the dispute and not subject to appeal on substantive grounds (Schedule 3, Article 53(1)). The remedies provided for are revision (Article 51) and annulment (Article 52). In addition, a party may ask a Tribunal which omitted to decide any question submitted to it, to supplement its award (Article 49(2)) and may request interpretation of the award (Article 50).
State / Territory Supreme Courts and the Federal Court have jurisdiction to execute and enforce arbitral awards (s 35 and Schedule 3 Article 54). However, this presents a problem for enforcement because Schedule 3 Article 55 preserves the immunity of foreign States from execution. See also the Foreign States Immunities Act 1985 (Cth) s 30.
Source: Malcolm Holmes & Chester Brown, The International Arbitration Act 1974 : A Commentary (CCH, 2018)
*Note that the Australian State and Territory Commercial Arbitration Acts apply only to domestic commercial arbitration, not international.
The International Arbitration Act 1974 : a commentary by Call Number: KC 2127 HOLMPublication Date: 2018
Finding Domestic Legislation on investor state dispute settlement in multiple countries
Most countries have enacted laws governing foreign investments. Such laws typically include procedures for settling disputes - often designating a forum for dispute resolution.
To find domestic Investor State Dispute Settlement legislation in multiple countries, use the below databases.
WARNING - while the below databases are a handy way to identify relevant laws in multiple jurisdictions, always then go to the legislation provided by official government websites to ensure currency.
- Foreign Law Guide (Brill)(UniMelb staff & student access)
From the homepage, click on Laws by Subject.
Select Foreign Investments from the alphabetical list of subjects.
Select the jurisdiction.
In some cases, you will find a direct link to an open access version of the relevant legislation.
- ICCA International Handbook on Commercial ArbitrationThe International and Comparative Legal Guides' (ICLG) International Arbitration is an annually updated database that includes references to domestic legislation covering investor-state arbitration in 47 countries (open access).
Click on the orange Free Online Access button and scroll down to select a country.
The country chapters are arranged in a plain language question and answer style. For each country, see in particular Question 2 - Governing Legislation - which explains the domestic legislation that governs arbitration proceedings in the jurisdiction (note - there is no link to the legislation - you will need to find it on the relevant country's official legislation website) and Question 14 - Investor State Arbitrations. The chapters also cover enforcement of awards in domestic courts and challenges to awards.
This database also has a very useful Compare tool that allows you to to select and then compare the laws in two or more countries. Click Compare on the top menu and then follow the prompts to select a topic (International Arbitration), jurisdictions, and questions. Q 14 is about governing legislation and Q 14 is about investor-state arbitration. - International Arbitration(Open Access)
An annually updated database that includes references to domestic legislation covering investor-state arbitration in 47 countries.
Click on the orange Free Online Access button and scroll down to select a country.
The country chapters are arranged in a plain language question and answer style. For each country, see in particular Question 2 - Governing Legislation - which explains the domestic legislation that governs arbitration proceedings in the jurisdiction (note - there is no link to the legislation - you will need to find it on the relevant country's official legislation website) and Question 14 - Investor State Arbitrations. The chapters also cover enforcement of awards in domestic courts and challenges to awards.
Books
ICCA International Handbook on Commercial Arbitration by Call Number: E-bookPublication Date: Looseleaf - continually updated
Investment Protection in Southeast Asia: a country-by-country guide on arbitration laws and bilateral investment treaties by Call Number: E-bookPublication Date: Brill, 2016
Interpretation and Uniformity of the UNCITRAL Model Law on International Commercial Arbitration: Australia, Hong Kong and Singapore by Call Number: eBookPublication Date: Kluwer, 2016
