IMC AVIATION SOLUTIONS PTY LTD v ALTAIN KHUDER LLC

38 VR 303·Warren CJ, Hansen JA and Kyrou AJA
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38 VR 303
38 VR 303
IMC AVIATION SOLUTIONS PTY LTD v ALTAIN KHUDER LLCCourt of AppealWarren CJ, Hansen JA and Kyrou AJA29, 30 March, 22 August 2011[2011] VSCA 248Arbitration and awards — Foreign arbitral award — Enforcement application — Prima facie entitlement — Applicant’s evidential onus — Respondent not named as party to either arbitration agreement or award — Mere provision of agreement and award insufficient to discharge evidential onus — Once evidential onus discharged respondent having legal onus of satisfying court that application should be refused — Standard of proof — Balance of probabilities — Grounds — “Pro-enforcement policy” — International Arbitration Act 1974 (Cth) ss 2D, 3, 8(2), (5), (7), 9(1), 39..

Section 8(1) of the International Arbitration Act 1974 (Cth) (“the Act”) provided that a foreign award was binding on the parties to the arbitration agreement in pursuance of which it was made. Section 8(3A) provided that the court could only refuse to enforce the foreign award in the circumstances mentioned in subss (5) and (7). Section 8(5)(b) relevantly provided that the court could, at the request of the party against whom it was invoked, refuse to enforce the award if that party proved to the satisfaction of the court that the arbitration agreement was not valid under the law of the country where the award was made.

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