Arbitrate This! Enforcing Foreign Arbitral Awards and Chapter III of the Constitution

Abstract

With significant amendments recently made to the International Arbitration Act 1974 (Cth), international commercial arbitration is increasingly becoming an efficient, effective and enforceable dispute resolution mechanism in Australia. This article considers whether s 8 of the Act, which makes foreign arbitral awards readily enforceable, has gone so far as to confer the judicial power of the Commonwealth on international arbitral tribunals contrary to the requirements of ch III of the Australian Constitution. The question is approached in two ways: a substance-focused approach in line with Brandy v Human Rights and Equal Opportunity Commission and a more formalistic approach found in other ch III cases. Each comes to a different conclusion as to the constitutionality of s 8, so this article, drawing from United States jurisprudence, advocates answering the question in light of the objects and purposes underlying ch III. Finding that the enforcement mechanisms do not undermine the objects and purposes underlying ch III - the maintenance of the federal compact, the rule of law and the ability of an independent and impartial judiciary to enforce and interpret laws - it is concluded that enforcing foreign arbitral awards under s 8 does not invest arbitral tribunals with judicial power.