Enforcing foreign arbitral awards in Australia against non-signatories of the arbitration agreement

This article investigates two questions that may arise in Australian proceedings for the enforcement of a foreign arbitral award where the award-debtor is not named in the relevant arbitration agreement and asserts that it is not a party to that agreement. The first question that may be contested in those circumstances is whether the award-debtor is for some reason precluded from denying its privity to the relevant arbitration agreement. Where this is not the case, the allocation of the onus of proof with regard to the award-debtor’s privity to the agreement may become relevant. In the context of investigating these two questions, this article discusses the views expressed in IMC Aviation Solutions Pty Ltd v Altain Khuder LLC, decided in 2011 by Croft J as trial judge and then by the Victorian Court of Appeal.