Commercial arbitration law
Court decisions on the commercial arbitration Acts: challenges to awards, the limits of an arbitral tribunal's authority and the courts' supervisory role.
Scope of arbitration clauses
- Rinehart v Hancock Prospecting Pty Ltd; Rinehart v Rinehart [2019] HCA 13
On appeals from the Full Court of the Federal Court, the High Court held that the arbitral clauses in a family's deeds of settlement, read in their context, covered claims that misconduct had procured them, and by majority that alleged knowing recipients of mining tenements from parties to one deed, whose defence rested as an essential element on those parties' beneficial title, could have claims against them stayed under section 8(1) of the Commercial Arbitration Act 2010 (NSW).
Non-parties claiming through or under a party
- Rinehart v Hancock Prospecting Pty Ltd; Rinehart v Rinehart [2019] HCA 13
On appeals from the Full Court of the Federal Court, the High Court held that the arbitral clauses in a family's deeds of settlement, read in their context, covered claims that misconduct had procured them, and by majority that alleged knowing recipients of mining tenements from parties to one deed, whose defence rested as an essential element on those parties' beneficial title, could have claims against them stayed under section 8(1) of the Commercial Arbitration Act 2010 (NSW).
Enforcing foreign awards
- Gutnick v Indian Farmers Fertiliser Cooperative Ltd [2016] VSCA 5
The Victorian Court of Appeal refused leave to appeal from orders enforcing a Singapore-seated award under the International Arbitration Act 1974 (Cth), holding that an award declaring agreements relating to the purchase of shares rescinded and ordering repayment of the price, without an express order returning the shares, restored the parties to their previous positions, so its enforcement was not contrary to public policy.
- IMC Aviation Solutions Pty Ltd v Altain Khuder LLC [2011] VSCA 248
The Victorian Court of Appeal allowed an appeal by an Australian company from orders enforcing against it, under the International Arbitration Act 1974 (Cth), a Mongolian arbitral award made under an arbitration agreement that did not name it, the judges agreeing that the award creditor had to show, at least on a prima facie basis, that the company was a party, but differing on the nature of that onus.
Award debtors not named in the arbitration agreement
- IMC Aviation Solutions Pty Ltd v Altain Khuder LLC [2011] VSCA 248
The Victorian Court of Appeal allowed an appeal by an Australian company from orders enforcing against it, under the International Arbitration Act 1974 (Cth), a Mongolian arbitral award made under an arbitration agreement that did not name it, the judges agreeing that the award creditor had to show, at least on a prima facie basis, that the company was a party, but differing on the nature of that onus.
Other decisions
- CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28
A majority of the High Court held that where the arbitration agreement and the UNCITRAL Rules make an interim award final and binding, a later award that revisits an issue the interim award decided is made beyond the tribunal's authority and may be set aside under section 34(2)(a)(iii) of the Commercial Arbitration Act 2012 (WA), the court deciding that question de novo.
- Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24
The High Court, by five Justices to two, allowed an appeal and answered "Yes" to a question of law reserved under the Commercial Arbitration Act 2011 (SA) (the Arbitration Act): whether Part 3 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) (the Law Reform Act) and/or Part VIA of the Competition and Consumer Act 2010 (Cth) (the CCA) apply in the parties' domestic commercial arbitration in South Australia. All three majority judgments held that the provisions of those regimes limiting a defendant's liability apply in the arbitration. Edelman and Steward JJ dissented and would have dismissed the appeal.
- 620 Collins Street v Abigroup (No 1) [2006] VSC 490
In the Supreme Court of Victoria, Osborn J held on an application under section 42 of the Commercial Arbitration Act 1984 that an arbitrator committed technical misconduct by resolving a liquidated damages claim through an extension of time that had not been pleaded or claimed, without giving the principal a proper opportunity to contest that course, rejected the other grounds and reserved the question of orders [1], [68], [111], [129], [143], [144], [148], [149], [150].
- 620 Collins Street v Abigroup (No 2) [2006] VSC 491
In the Supreme Court of Victoria, Osborn J refused the plaintiffs leave to appeal from an arbitrator's award, holding that the arbitrator was correct to follow Peninsula Balmain in treating the superintendent's reserve power to extend time as exercisable in the contractor's favour, and that the contractor was entitled to interest on an uncertified progress claim although part of it was disallowed [26], [34], [83], [92], [93].
- Transfield Philippines v Pacific Hydro [2006] VSC 175
In the Supreme Court of Victoria, Hollingworth J held that service of a writ on a Philippine company outside Australia should be set aside because the indorsement required by rule 7.02 identified the paragraphs of rule 7.01 relied on but stated no supporting facts, a defect not cured by a statement of claim served afterwards, and declined to dispense with the requirement [46], [48], [53].
- La Donna v Wolford AG [2005] VSC 359
In the Supreme Court of Victoria, Whelan J refused to stay a proceeding in favour of arbitration under the International Arbitration Act, holding under section 7(5) that the arbitration agreement was inoperative because the defendant's application for security for costs involved an unequivocal choice to pursue litigation, so that it had waived its right to insist on arbitration [30].