Challenging awards before national courts for a denial of natural justice: lessons from Australia

摘要

International arbitral awards can be set aside or not enforced under Australian federal law where a breach of the rules of natural justice (or procedural due process) occurs in connection with the making of that award. At state levels, Australian awards can be set aside or not enforced following misconduct by an arbitrator or where an arbitrator misconducts proceedings, which includes where the rules of natural justice have been breached. This article considers how these legislative provisions have been judicially construed. It concludes that a breach of the rules of natural justice is a very limited ground for setting aside or refusing to enforce an international or local arbitral award. Drawing on orthodox public law principles, Australian courts have formulated useful tests for applying several of these rules. Successful applicants have to clearly demonstrate real unfairness or practical injustice. Asserted breaches of natural justice cannot be used to revisit the merits of a dispute. Although the parties have the right to establish the arbitral procedure, fundamental notions of equality and fairness must also be observed. Australian jurisprudence offers valuable lessons to international tribunals and national courts in circumstances where international arbitral awards are increasingly being challenged for an alleged denial of natural justice.