Our ‘Australian Enforcement of Foreign Judgments Guide’, is a practical resource for parties seeking to recognise and enforce foreign judgments and awards in Australia. It brings together the key legal principles and the strategic considerations that arise in cross-border enforcement and asset recovery.
The guide is presented as a series of focused sections, each designed to stand alone as a practical reference for live matters.
While the series is focused on Australian law, it is also relevant to overseas practitioners stakeholders involved in cross-border disputes, enforcement of foreign judgments and awards, asset recovery, and enforcement strategy.
Series roadmap
Across 9 parts, the series covers:
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Part 1 – Legislation – (this article) |
Part 6 – Examination of the foreign judgment |
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Part 2 -Bringing a claim for enforcement |
Part 7 – Awards and security for appeals |
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Part 3 – Opposition |
Part 8 – Enforcement and pitfalls |
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Part 4 – Requirements for recognition |
Part 9 – Update and trends |
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Part 5 – Jurisdiction of the foreign court |
Part 1
Part 1 sets out the legislative and treaty framework that determines how foreign judgments are recognised and enforced in Australia.
1. Legislation
Treaties
Australia has not entered into any multilateral treaties for the reciprocal recognition of foreign judgments. Presently, the enforcement of foreign judgments in Australia is regulated by domestic statutory regimes and common law principles. The main statutory regimes for the procedure and scope of recognition and enforcement of foreign judgments in Australia are the Foreign Judgments Act 1991 (Cth), the Foreign Judgments Regulations 1992 (Cth) made pursuant to the Act, the Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) and the Service and Execution of Process Act 1992 (Cth). Concerning New Zealand, the Trans-Tasman Proceedings Act 2010 (Cth) deals with recognising New Zealand judgments and generally excludes issues surrounding probate and the administration of estates, guardianship and the welfare of a child. Common law applies in circumstances where the statutory regimes do not apply. Enforcement can be implemented under the common law principles as an action in debt.
Australia is party to two bilateral treaties, one with New Zealand (Agreement on Trans-Tasman Court Proceedings and Regulatory Enforcement, which resulted in the Trans-Tasman Proceedings Act 2010 (Cth)) and the other with the United Kingdom (Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters 1994). For the purpose of this article, we will not be focusing on the United Kingdom treaty, as the United Kingdom is one of the prescribed countries in the Foreign Judgments Regulations 1992 (Cth).
Australia is party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1959 (the New York Convention). This allows for recognition and enforcement of arbitral awards made in foreign states. The New York Convention is given domestic effect in the International Arbitration Act 1974 (Cth). Due to the popularity of the New York Convention and the fact that ‘judgment’ is defined in the Foreign Judgments Act 1991 (Cth) to include arbitral awards under the International Arbitration Act 1974 (Cth), the enforcement of arbitral awards has become a popular alternative to seeking the more traditional enforcement of foreign judgments. Similarly, Australia is party to the ICSID Convention, which allows for recognition and enforcement of ICSID awards subject to issues of foreign state immunity.
Intra-state variations
Ordinarily, the enforcement of foreign judgments in Australia is uniformly governed at the Commonwealth level. However, as foreign judgments may be registered in the Supreme Court of a state or territory, some states may choose to impose their own procedural stipulations in relation to the registration of judgments.
Sources of law
Australia’s regime regarding the enforcement of foreign judgments is primarily governed under the Foreign Judgments Act 1991 (Cth), the Foreign Judgments Regulations 1992 (Cth), the Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth), the Service and Execution of Process Act 1992 (Cth), the Trans-Tasman Proceedings Act 2010 (Cth), and common law principles of private international law.
Hague Convention requirements
Australia is not a party to the Hague Convention, and any judgment produced in a jurisdiction that is not listed in the Foreign Judgments Regulations 1992 (Cth) or the Trans-Tasman Proceedings Act 2010 (Cth) must proceed under the common law rules of recognition.
Next, Part 2
Part 2 focuses on bringing a claim for enforcement, including limitation periods, types of enforceable order, competent courts, and how recognition and enforcement are treated under the statutory regimes and at common law.
If you are seeking to enforce a foreign judgment or award in Australia, or to resist enforcement and protect assets, we can help you move quickly and defensibly. Our cross-border disputes work is designed to be commercial, evidence-disciplined, and aligned to the outcome that matters, whether that is recovery, restraint, leverage in settlement, or clean exit.
Further Information
For further information about the enforcement of foreign judgments and awards in Australia, cross-border enforcement strategy, or resisting enforcement where Australian assets are at risk, contact the author of this article:
