Interpretation and Application of the New York Convention in Australia

For a fuller discussion of the case see Monichino A., Nottage L. & Hu D. ‘International Arbitration in Australia: Selected Case Notes and Trends’ (2012) 19 Australian International Law Journal 181-197, also available at http://​ssrn.​com/​abstract=​2133763. Accessed 27 Dec 2014.

Above n 34, at [62] (Warren CJ).

Ibid at 180 (Hansen JA and Kyrou AJA).

Ibid at 184 (Hansen JA and Kyrou AJA).

Dampskibsselskabet Norden A/S v Beach Building & Civil Group Pty Ltd (2012) 292 ALR 161 (reversed, on other grounds, in Dampskibsselskabet Norden A/S v Gladestone Civil Pty Ltd [2013] FCAFC 107).

Ibid at [89]. See above n 4, at 203, for a more detailed discussion of the case.

Ibid at [76].

Ibid at 77.

Above n 8, at [89].

For a fuller discussion, see above n 2, at 64.

For a fuller discussion, see above n 2, at 73.

Ibid. See also above n 1, at 674.

Ibid.

See Ibid at 74 for further discussion.

Ibid at 167. See also Holmes M. & Brown C., The International Arbitration Act 1974: A Commentary (LexisNexis Butterworths, Australia 2002) 51; and generally Morrison J. & Nottage L. ‘Country Report on Australia for: International Commercial Arbitration – An Asia-Pacific Perspective’ (2014) 14/95 Sydney Law School Research Paper available at http://​ssrn.​com/​abstract=​2514124. Accessed 24 Aug 2015.

Holmes & Brown, above n 20, at 51.

Ibid at 52.

Ibid at 52-54.

Ibid at 52.

Above n 19, at 168 (as discussed in Holmes & Brown, above n 20, at 52).

Ibid.

Ibid at 169.

Holmes & Brown, above n 20, at 52.

Ibid, citing Shanghai Foreign Trade Corp v Sigma Metallurgical Co Pty Ltd (1996) 133 FLR 417 at 446, where the Court referred to the decision in Bakri Navigation.

Holmes & Brown, above n 20, at 52.

Ibid at [190].

See for example, ACD Tridon Inc v Tridon Australia [2002] NSWSC 896 at [53]-[63]; and BHP Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd. (2008) 247 ALR 369 at [52]-[55], as cited in Holmes & Brown, above n 20, at 52-53.

See for example, Zhang v Shanghai Wool and Jute Textile Co Ltd (2006) 201 FLR 178; [2006] VSCA 133; Stericorp Ltd v Stericycle Inc [2005] VSC 203; Australian Granites Ltd v Eisenwerk [2001] 1 Qd R 461; ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896, as cited in Holmes & Brown, above n 20, at 53.

Above n 21, at 235 (Allsop J).

Above n 20, at 53.

Above n 21, at 62 (Allsop J, with whom Finn and Finkelstein JJ agreed).

Holmes & Brown, above n 20, at 53.

Ibid at [16].

As discussed in detail in Rich, L. ‘The Arbitrability of TPA claims: To Stay or Not to Stay?’ (2010) 18 Trade Practices Law Journal 7.

Ibid at 16, n 64.

Ibid.

Ibid.

Holmes & Brown, above n 20, at 52.

Holmes & Brown, above n 20, at 54.

Ibid.

Ibid.

Ibid.

Holmes & Brown, above n 20, at 58.

See Nottage L. & Garnett R., ‘The Top 20 Things to Change in or Around Australia’s International Arbitration Act’ in: Nottage & Garnett (eds), International Arbitration in Australia (The Federation Press, Sydney 2010) 149, 156, with an earlier version at http://​ssrn.​com/​abstract=​1378722. Accessed 27 Dec 2014.

Ibid.

As noted by Nottage & Garnett (ibid at 156, n 22), Comandate v Pan Australia implies it is Australian law, perhaps as the law of the seat. The Exposure Draft (25 September 2014) of the proposed “ACICA Arbitration Rules 2015” (available at http://​acica.​org.​au/​assets/​media/​Rules/​EXPOSURE-DRAFT-ACICA-Arbitration-Rules-2015.​pdf) add that: “Unless the parties have agreed otherwise, the law of the seat shall be the governing law of the arbitration agreement” (Article 19.5).

Ibid at 156-157.

Ibid at 156.

Ibid at 157.

See above n 4, at 207.

Ibid.

Ibid at 208.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid, referring to above n 60.

Above n 60.

Ibid.

At 812–813 (Mance JSC), 850 (Saville JSC) as cited in above n 12, at 199.

Above n 4, at 200.

Ibid.

Ibid.

As mentioned below (n 126), the scope of this prohibition was the only issue raised on appeal, with a majority of the Full Federal Court reversing Foster J’s judgment to find that section 11 COGSA did not encompass arbitration agreements in a voyage charter party.

At [64]-[65].

(1999) 1 All ER (Comm) 315 at 331.

Allsop, below n 125.

See also Barry, below n 125; and Monichino, Albert and Fawke, Alex, ‘Enforcement of Foreign Arbitral Awards, Issue Estoppel and Comity: Developments in Australia’, (2014) Asian Dispute Review 10.

As discussed further in above n 4, at 193.

Ibid at 199.

Ibid at 200.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

While the case has been appealed, this choice of law process was not a point of contention.

Ibid at [74], as discussed in above n 2, at 71.

[2014] FCA 887.

[2014] FCA 887 at [183].

[2015] VSC 163.

(2011) 277 ALR 415; [2011] FCA 131.

[2011] VSCA 248 at [261] and [305]–[306] (Hansen JA and Kyrou AJA)).

TCL Air Conditioner (Zhongshan) Co Ltd. v The Judges of the Federal Court of Australia (2013) 295 ALR 596. For the broader context and law reform implications of this long-running dispute, see Monichino A. & Nottage L. ‘Blowing Hot and Cold on the International Arbitration Act: Three Waves of Litigation in the Castel v TCL Air Conditioner dispute’ (2013) 51(4) Law Society Journal 56; Nottage L. ‘International Commercial Arbitration in Australia: What’s New and What’s Next?’ (2013) 30(5) Journal of International Arbitration 465–494.

[2015] NSWCA 229 at [56]-[61] (Bathurst CJ).

[2014] FCA 636.

Mortensen R., Garnett R & Keyes M. Private International Law in Australia (2^nd edn. LexisNexis Butterworths, Australia 2011) 180.

Ibid.

Davies M., Bell A. & Brereton Nygh’s Conflict of Laws in Australia (8^th edn. LexisNexis Butterworths, Australia 2010) 799.

Ibid.

For further discussion see above n 2, at 73.

Above n 112. The Court rejected a further argument that this declaration justified the public policy exception for non-enforcement.

Ibid at 23.

Ibid.

Above n 60, at 163. More recently in the US, see also eg Corporacion Mexicana de Mantenimiento Integral, S. de R.L. de C.V. v PEMEX-Exploracion y Produccion, Case 1:10-cv-00206-AKH (27 Aug 2013). However, other than in such exceptional circumstances, the trend in the US has been to defer to setting aside decision by courts at the seat: Barry, M., ‘The Role of the Seat in International Commercial Arbitration: Theory, Practice and Implications for Australian Courts’, (2015) 32(3) Journal of International Arbitration 289–323. There is also such a tendency recently in the Federal Court of Australia to defer generally to decisions of seat courts that instead uphold awards (as explained below in section 3.1.3). Speaking extra-judicially, the Chief Justice of that Court has noted the parallels between the two issues, remarking:

“The question of the relationship between the enforcing court and the court of the seat also arises when enforcement is sought of an award set aside in the seat. Here, questions of the international character of the award not being integrated into the national legal order of the seat, of issue estoppel, of the effect of the autonomous choice of the parties, and of the true character of the New York Convention arise. The international character of the award has been emphasised by la Cour de cassation and le Tribunal de grande instance de Paris in the Hilmarton case, Putrabali case, and Maximov case and by the Amsterdam Court of Appeal in the Yukos case. The importance of the doctrine of issue estoppel can be seen in the decision of the 5^th Circuit Court of Appeals in the Karaha Bodas v Pertamina case.”

See Chief Justice James Allsop, ‘The Authority of the Arbitrator’, 2013 Clayton Utz University of Sydney International Arbitration Lecture, at http://​www.​claytonutz.​com/​ialecture/​2013/​speech_​2013.​html (citation omitted).

See Marchesi A. & Dharmananda K. ‘The Arbitrability of Oppression and Winding-up Actions’ (2013) 87 Australian Law Journal 258-266; above n 45, at 16.

In DKN v Beach (outlined in section 1.1 of this Chapter), Foster J concluded that section 11 COGSA extended to voyage charter parties for outbound carriage from Australia. This was the only aspect raised on appeal, with the Full Federal Court (by majority) reversing this decision and therefore enforcing the foreign award: Dampskibsselskabet Norden A/S v Gladstone Civil Pty Ltd [2013] FCAFC 107.

Above n 113), at 266.

Above n 47.

The Australian Consumer Law is set out in sch 2 to the Competition and Consumer Act 2010 (Cth), which from 2010 became the new name for the Trade Practices Act 1974. See generally Nottage L. & Malbon J. ‘Introduction’ in Nottage & Malbon (eds), Consumer Law and Policy in Australia and New Zealand (The Federation Press, Sydney 2013) 1.

Ibid.

Submissions in 2009 urging this problem to be addressed went unheeded in the 2010 amendments to the IAA: see Nottage & Garnett, above n 60, at 153. On even greater uncertainty in Australian case law with respect to foreign court selection clauses, see Garnett, R. ‘Jurisdiction Clauses since Akai’ (2013) 87 Australian law Journal 134.

Above n 128.

The Federal Court of Australia also reached this conclusion (see above n 46).

It is understandable then why commentators such as Bonnell have referred to the TPA as ‘Australia’s arbitration headache’ (see above n 132).

See above n 47, at 7.

Above n 21, at 200 (Allsop J). See also above n 47, at 11.

Above n 47, at 15.

Above n 1, at 680.

Ibid at [14].

For recent narrow interpretations of ‘rules of natural justice’, see also TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83 (unanimously upholding the trial Judge’s rejection of a setting-aside application under the ML) and Emerald Grain Australia Pty Ltd v Agrocorp International Pte Ltd [2014] FCA 414 (also under the ML, addressing arguments over the alleged “no evidence” and “no hearing” rules).

Above n 60, at 166.

See above n 60, at 164. See also Villiers L. ‘Breaking in the “Unruly Horse”: The Status of Mandatory Rules of Law as a Public Policy Basis for the Non-Enforcement of Arbitral Awards’ (2011) 11 Australian International Law Journal 155. Villiers (at 180) concludes that the connection between mandatory law and public policy is becoming clearer in Australia, with a consensus arguably having emerged that public policy within the Convention means ‘international public policy’ as distinct from domestic public policy.

Ibid at [111].

Ibid at [110].

Above n 152, at [82].

Jones D. Commercial Arbitration in Australia (2^nd edn. Lawbook Co., Australia 2013) 11.130.

Ibid at 11.200.

Ibid.

Above n 158, at 11.200.

Above n 109.

See further Garnett R. & Nottage L, ‘The 2010 Amendments to the International Arbitration Act: A New Dawn for Australia?’ (2011) 7 Asian International Arbitration Journal 29, also at http://​ssrn.​com/​abstract=​1676604. Accessed 27 Dec 2014.

See further Ibid.

Monichino A., ‘Reform of the Australian Domestic Arbitration Acts — It’s Time’ (2009) 28 The Arbitrator & Mediator 83-100. See also Monichino A., ‘International Arbitration in Australia: The Need to Centralise Judicial Power’ (2012) 82(2) Australian Law Journal 118, at 130, where Monichino proposes a modification to the IAA to ‘provide that all appeals from State and Territory Supreme Court judges in international arbitration-related matters be heard by the Full Court of the Federal Court. See however above n 60, at 170, where Nottage & Garnett note that the 1987 cross-vesting scheme which purported to vest the Federal Court with full state jurisdiction and to put it on the same footing as a state court with unlimited jurisdiction was ruled as unconstitutional by the High Court in Re Wakim: Ex parte McNally (1999) 198 CLR 511. Nottage further discusses this issue in ‘International Commercial Arbitration in Australia: What’s New and What’s Next’ (2013), above n 109. In particular, even if such constitutional challenges can be overcome, Nottage adopts a rather agnostic approach to this proposal; the arguments for and against are quite evenly balanced.

Above n 4, at 182.

Ibid at 183.

Garnett R. & Nottage L., ‘What Law (If Any) Now Applies to International Commercial Arbitration in Australia’ (2012) 35 University of New South Wales Law Review 953, also at http://​ssrn.​com/​abstract=​2063271. Accessed 27 Dec 2014.

Ibid.

Above n 4, at 183 (specifically at 183, n 9).

Above n 168 at 960-961, also at http://​ssrn.​com/​abstract=​2063271. Accessed 27 Dec 2014.

Available at http://​www.​uncitral.​org/​uncitral/​en/​case_​law.​html. Accessed 27 Dec 2014. However, one recent study argues that Australian court judgments have generally demonstrated a more uniform internationalist approach over 2011-15 compared to Hong Kong and even Singapore: Lewis D. The Interpretation and Uniformity of the UNCITRAL Model Law on International Commercial Arbitration (Wolters Kluwer, 2016) 107-29, 203 (Table 2).

Such tendencies are arguably even more apparent when Australian courts apply other international instruments, such as the United Nations Sales Convention. See for example Spagnolo L., ‘The Last Outpost’ (2009) 10 Melbourne International Law Journal 141, also available at http://​www.​law.​unimelb.​edu.​au/​files/​dmfile/​download48af1.​pdf. Accessed 27 Dec 2014.

See also Nottage L., ‘The Government’s Proposed “Review of Australian Contract Law”: An Interim Positive Response’ (2012), Available at http://​ssrn.​com/​abstract=​2111826. Accessed 27 Dec 2014. Expanded and updated In Wilson T. (ed), Codifying Contract Law (Ashgate Publishing 2014) 131-64.

‘[i]n my opinion the construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal. The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator’s jurisdiction.’

This suggestion for reform is based on the recommendations for Australian law found in Delaney J. & Lewis K., “The Presumptive Approach to the Construction of Arbitration Agreements and the Principle of Separability – English Law post Fiona Trust and Australian Law Contrasted’ (2008) 31 University of New South Wales Law Review 341-363. Delaney & Lewis initially discuss the House of Lords decision in Fiona Trust & Holding Corporation v Privalov noting that the English Court ‘took the opportunity to unequivocally set out a presumptive approach to be taken to the construction of arbitration clauses, to explain what circumstances will rebut this presumption and clearly delineate its limits, thus bringing English law in line with international commercial practice’. By extension, Delaney & Lewis recommend that Australian law would benefit from a similar judicial decision clearly establishing ‘a presumptive approach to the construction of arbitration agreements in favour of one-stop adjudication, together with a statement that only ‘clear words’ to the contrary will rebut this presumption and a rejection of any further semantic discussions of ‘linguistic nuances’… [and fully endorsing] the acceptance of the principle of separability… [and establishing] a definitive test delineating the limits of the principle.”

Monichino A., ‘IAA Reform: Plugging the Black Hole and More’ (June 2015) ACICA News 42-47, available at http://​acica.​org.​au/​assets/​media/​News/​ACICA-Review/​ACICA-Review-June-2015.​pdf. Accessed 24 Aug 2015. Declining to award indemnity costs, in contrast e.g. with Hong Kong, see also John Holland Pty Limited v Kellogg Brown & Root Pty Ltd. [No 2] [2015] NSWSC 564 (albeit under a domestic law based on the ML). For other suggested reforms to the IAA, see also above n 60.

Hu D. & Nottage L. ‘The International Arbitration Act Matters in Australia: Where to Litigate and Why (Not)’ (December 2016) The Arbitrator and Mediator 91-104, also available (with an Appendix listing all IAA-related judgments) at https://​ssrn.​com/​abstract=​286225. Accessed 10 Mar 2017. In particular, they find a somewhat surprising increase in IAA-related matters (still, mostly related to stays of proceedings in favour of foreign arbitration or enforcement of foreign awards), and disturbingly no improvement in case disposition times even in the Federal Court of Australia (arguably now the most pro-arbitration jurisdiction).

Above n 125.

See section 3.1.3.

See Allsop, above n 125; Barry, above n 125.