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ARBITRATION WORLD Freezing assets in Australia in Anticipation of a Foreign Judgment or Arbitration Award By John Kelly, William Ho and Melanie Long (Melbourne) In the recent decision of PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36., the High Court of Australia (the final court of appeal in Australia) confirmed the inherent power of the Supreme Court of Western Australia (and, thereby, the superior courts of other Australian States) to make a freezing order in relation to a prospective foreign court judgment. The consequence for the business community of this decision is that parties to foreign litigation can apply to Australian courts for a freezing order before the foreign judgment is delivered, provided that the judgment, once obtained, would be registrable under the Foreign Judgments Act 1991 (Cth). This judgment now effectively confirms the alignment of the positon of foreign judgments and arbitral awards. As long ago as 1984, the Supreme Court of New South Wales found that a court had inherent power to make a freezing order against a party to an arbitration before the arbitral award was delivered and, as discussed further below, has subsequently been reflected in Australia’s adoption of the UNCITRAL Model Law (the ‘Model Law’). BACKGROUND A dispute arose over a joint venture agreement between BCBC Singapore Pte Ltd (BCBC) and PT Bayan Resources TBK (Bayan). BCBC commenced proceedings against Bayan in Singapore, which are still pending. BCBC is incorporated in Singapore and Bayan is incorporated in Indonesia. Bayan’s only assets outside Indonesia are shares in the Australian company, Kangaroo Resources Limited (KRL). Under Indonesian law, any judgment made in Singapore, including the pending judgment in Singapore, is not enforceable in Indonesia. 71