The Federal Court of Australia recently determined an application brought by the administrators of a company in voluntary administration seeking judicial guidance on how to deal with claims for costs and interests resulting from two prior arbitrations. The key issue was whether the costs and interests awarded in the previous arbitrations were admissible to proof in the administration of the company, having regard to the fact that the relevant arbitral awards were made after the appointment of administrators.
Two recent judgments from different Australian courts have considered circumstances in which insolvency disputes can (or cannot) be arbitrated in accordance with pre-existing arbitration agreements. In particular, the decisions address the following two key issues:
- when certain insolvency claims can be arbitrated; and
- when a third party can participate in arbitral proceedings either claiming or defending ‘through or under’ a party to the arbitration agreement.
In a recent application to enforce an arbitral award, the Federal Court of Australia rejected the award debtor’s arguments that it would be contrary to public policy to enforce the award, where allegations of procedural unfairness had already been determined in foreign courts. In doing so, the Court reaffirmed the high threshold required for an Australian court to refuse enforcing a foreign arbitral award on public policy grounds, and the importance of international harmony and concordance of approach.
In a recent decision, the Supreme Court of New South Wales held that ongoing arbitral proceedings did not prevent a party from calling upon a guarantee in relation to the primary contract. The key takeaways are as follows:
- A party will not, prima facie, be precluded from calling upon a guarantee for the sole reason that arbitral proceedings have been commenced and are pending determination, under Australian law.
- The International Arbitration Act 1974 (Cth) (IA Act), which mirrors the UNCITRAL Model Law (Model Law), allows for ‘interim measures’ to be determined by an Australian Court, exercising ‘such power in accordance with its own procedures in consideration of the specific features of international arbitration’.
- Allowing a party to call upon a guarantee where arbitral proceedings are ongoing is consistent with the IA Act and thus the Model Law.
- The judgment considered and clarified the ‘apparent’ divergence of Australian jurisprudence as to the treatment of guarantees where arbitral proceedings are ongoing.
In a recent post, we considered the careful and considered approach taken by Australian courts in striking the balance between a pro-enforcement stance and critical due process safeguards when enforcing foreign arbitral awards.
In Beijing Jishi Venture Capital Fund (Limited Partnership) v Liu  FCA 477, the Federal Court of Australia maintained this balance by declining to enforce an award against an award debtor who had not been served in accordance with the arbitration agreement or the chosen institutional rules, and therefore had not been given proper notice of the arbitration. Continue reading
In the recent case of EBJ21 v EB021  FCA 1406 award creditors sought recognition and enforcement of an arbitral award that had already been paid in time and in full. The award debtors resisted the application arguing that it was an improper attempt to circumvent the agreed upon confidentiality arrangement by bringing the dispute into the public arena of a court proceeding. The Federal Court of Australia agreed.
Investment protection regimes are at a crossroads globally. Different governments, trading blocks and interest groups are pushing their policy agendas in diverging directions when it comes to bilateral and multilateral investment protection schemes. Australia is no exception to this debate.
In this note we canvass some of the key developments in the investment treaty arbitration space in Australia, including:
- Australia’s review of its Bilateral Investment Treaties;
- the upcoming Australia-EU and Australia-UK Free Trade Agreements; and
- recent legislative measures and political discussion in relation to foreign investments in infrastructure assets in Australia.
Review of Australia’s Bilateral Investment Treaties
Following the Federal Government’s announcement that it was reviewing the BITs to which Australia is party (which we have commented upon previously), the Department of Foreign Affairs and Trade (DFAT) sought submissions to inform the Federal Government’s position on whether to continue, amend, renegotiate or terminate the BITs to which Australia is a party, or replace them with comprehensive free trade agreements (FTAs).
DFAT has recently published 27 submissions it received. The submitters came from a broad range of backgrounds and included industry bodies, business councils, associations, universities, law societies, law firms, law academics and economists.
The key take away is that the majority of submitters considered that Australian BITs should maintain their investor-state dispute settlement (ISDS) provisions, but that the BITs should be modernised and ‘tweaks’ should be made. Australia is considered a thought leader in the investment protection space in the Asia-Pacific region and how Australia chooses to respond to those questioning the continuing utility of ISDS provisions under its BITs will be closely watched.
Although a range of issues were raised and potential tweaks proposed, some particular points of interest include:
A. Clarifying the scope of investment protections
There was widespread support for improving or modernising Australia’s BITs, in particular:
- The fair and equitable treatment (FET) obligations in Australia’s BITs were described as unrestricted. A number of submitters recommended that the FET obligations be refined to address the scope or standard of conduct that will violate the FET standard.
- Some Most Favoured Nation (MFN) provisions in Australia’s BITs were described as potentially allowing investors to benefit from the most generous protections found in any of Australia’s BITs, without limitation. Certain submitters recommended that the operation of MFN clauses needed to be limited after considering Australia’s policy objectives.
- Australia’s BITs do not provide guidance on determining when indirect expropriation has occurred. Certain commentators considered it would be useful to identify factors for determining whether indirect expropriation had occurred.
B. Tightening fork-in-the-road provisions
Some of Australia’s BITs were reported to contain ‘uncertain’ fork-in-the road provisions. Fork-in-the-road provisions typically bind an investor to its chosen dispute resolution process (usually domestic courts or arbitration), so they cannot seek to pursue their claim in both forums. It was suggested that these provisions be reinforced to ensure that an investor could only use one forum.
C. Responsibility for State Government actions
An issue identified with Australia’s BITs was the silence on whether BITs bind the Federal Government for State Government actions, and whether the substantive obligations in BITs apply to State Government actions. One potential avenue for dealing with State Government compliance risk identified in the submissions was to exclude liability for State Government acts.
D. Transition to renewable energy
Concerns, whether rightly or wrongly held, were raised regarding the potential ‘chilling’ impact some claim ISDS provisions may have on Australia’s sovereign right to regulate, in particular in relation to human rights, labour rights, equality and the environment. A concern that gained some attention was the potential for an investor claim to be brought against Australia based on Australia’s measures to protect the environment, such as meeting the objectives set out in the Paris Agreement (see our overview here), namely the transition to renewable energy.
We will issue an update once DFAT publishes its findings from the BITs review.
Upcoming Australia-EU Free Trade Agreement
Australia is seeking an ambitious and comprehensive FTA with the European Union (EU) which from time to time has been Australia’s largest source of foreign investment. As a bloc the EU is Australia’s second largest trading partner, third largest export destination, and second largest service market.
Australia’s approach to FTAs
It is likely that the FTA will include a comprehensive investment chapter that provides for substantive protections and seeks to regulate ISDS.
DFAT has indicated that it is committed to seeking improved market access for Australian investment and that it will also seek an undertaking from the EU not to impose residency and/or citizenship requirements on senior representatives of Australian companies established in the EU. DFAT has also indicated its commitment to upholding Australia’s right to regulate for “legitimate public purpose and screen investments for national interest”.
The EU’s push for bilateral and multilateral Investment Courts
Much ink has been spent debating the relative advantages and disadvantages that would attend a permanent Investment Court operating as the final and sole arbiter (subject to an appellate mechanism) of investment disputes. Advocates point to issues of coherence and consistency with ISDS as well as the perennial question of costs, whilst detractors point to the potential politicisation of such a body and question its capacity to address the perceived concerns around ISDS.
Investors will be particularly interested in how Australia responds to any suggestion by the EU that the proposed FTA replace the ISDS mechanism with an Investment Court System. The EU in its recently negotiated investment agreements with Canada, Mexico, Singapore and Vietnam has jettisoned ISDS in favour of establishing a bilateral Investment Court. Under each treaty a standing tribunal is established, with members pre-selected by the contracting states, invested with power to establish its own procedural rules. In one of our previous blog posts we have considered the Investment Court System under the Canada-EU Comprehensive Economic and Trade Agreement and the procedural rules adopted there.
These agreements also include provisions allowing for the transition to a multilateral Investment Court System. Such a body, made up of pre-selected members, would in principle provide a procedural framework for any investment dispute arising under any treaty that submits to its jurisdiction.
In March this year the EU released its report of the 10th round of negotiations which indicated that Australia and the EU have agreed on “objectives for the [Dispute Settlement] Chapter, which include transparent, efficient and effective dispute settlement procedures”. The report also indicates that good progress has been made on the articles relating to the substantive investment protections to be included in the investment chapter.
We will issue an update if further information is released regarding ISDS under the proposed Australia-EU FTA.
Australia-UK Free Trade Agreement
On 15 June 2021, Prime Ministers Scott Morrison and Boris Johnson announced that Australia and the UK had reached an ‘in principle’ agreement on core elements of a new FTA. In a media release, DFAT indicated that, “When the agreement is finalised it will deliver the most comprehensive and liberal agreement outside [Australia’s] partnership with New Zealand”.
The UK is one of Australia’s largest trading partners for both goods and services. According to the information released to date, when the agreement comes into force, 99 per cent of Australian goods will be able to enter the UK duty-free. Tariffs on wine and rice will be eliminated upon entry into force, while tariffs on beef, sheep, and sugar will be eliminated in eight to 10 years. The agreement will also contain provisions to improve the ease of investing and doing business, and provisions to enhance recognition of qualifications for professional services.
Although the investment chapter contains a number of investment protections, there will be no ISDS mechanism. DFAT has indicated that, “as two well governed countries with a strong investment relationship, sound domestic legal systems and a strong commitment”, there is no need for ISDS in the FTA.
DFAT have declined to give a precise timeframe on when the FTA is likely to be finalised, noting that the negotiations will be concluded “as quickly as possible, without compromising on quality or ambition”.
Recent legislative measures and government initiatives
Australia has recently introduced Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 (Cth), which establishes a legislative scheme for Commonwealth engagement with arrangements between State or Territory governments and foreign governments, and their associated entities. Relevantly, the Act empowers the Minister for Foreign Affairs to review, and potentially veto, any existing and prospective arrangements between State/Territory governments and foreign entities. Previously, the Security of Critical Infrastructure Act 2018 (Cth) sought to address national security risks posed by foreign involvement in Australia’s critical infrastructure, namely around 200 assets in the electricity, gas, water and ports sectors.
Recent discussion concerning Darwin Port and how the Federal Government may utilise the new legislative framework to potentially affect the 99-year lease of the port granted to the Chinese-owned Landbridge have drawn increased attention to foreign investments in Australian infrastructure.
Many will be watching Australia’s next moves in the investment protection space, be it investors or counterparties to its BITs and upcoming FTAs.
DFAT’s conclusions on its review of Australia’s BITs and the negotiations of the EU-Australia FTA and the UK-Australia FTA will be closely watched alongside ongoing discussion concerning Darwin Port and other investments in Australian infrastructure.
For more information, please contact Leon Chung, Partner, Guillermo García-Perrote, Senior Associate, or your usual Herbert Smith Freehills contact.
A recent case of the Federal Court of Australia affirms the Australian courts’ pro-enforcement approach to foreign arbitral awards under the regime of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).
In Neptune Wellness Solutions, Inc v Azpa Pharmaceuticals Pty Ltd  FCA 676, the Federal Court applied the New York Convention regime in an efficient manner that aligns with best practice in UNCITRAL Model Law jurisdictions and demonstrates the support of the Australian courts towards arbitration: Neptune Wellness Solutions, Inc v Azpa Pharmaceuticals Pty Ltd  FCA 676
A recent judgment of the Supreme Court of Queensland is a useful reminder of the willingness of Australian Courts to enforce broadly drafted arbitration agreements. The judgment also demonstrates the expansive view taken by Australian Courts with respect to arbitrating non-contractual claims. Whereas often in such cases the issue relates to whether the arbitration agreement is wide enough to capture the substantive dispute, this case is unusual in that the issue was whether the arbitration agreement was too widely drafted, so as to be unenforceable.
In this judgment, Justice Henry concluded that a contract between two Australian entities that contained an arbitration agreement was referrable to arbitration under the Commercial Arbitration Act 2013 (Qld) (CA Act). Consequently, the proceeding was stayed pending the outcome of the arbitration.
The applicant, Civil Mining & Construction Pty Ltd (CMC), was the principal contractor for a government roadworks construction project. CMC sub-contracted the respondent, Cheshire Contractors Pty Ltd (Cheshire), to assist with civil engineering on the project (Contract). A dispute arose regarding whether the parties had agreed to depart from the terms of the Contract, such that CMC would make payment to Cheshire for work not contemplated under the subcontract works.
Clause 12 of the Contract contained a multi-tiered dispute resolution clause. If “disputes or differences arising between the parties” (emphasis added) could not be resolved by informal negotiations, executive-level negotiations or mediation, clause 12 required the “disputes or differences” to be referred to arbitration (the Arbitration Agreement). Relevantly, the wording did not qualify the “disputes or differences” by reference to the Contract.
A mediation of the dispute, commenced by Cheshire, was unsuccessful. Cheshire did not refer the dispute to arbitration and instead commenced proceedings in the Supreme Court of Queensland. CMC subsequently filed an application for the proceeding to be stayed and referred to arbitration.
Justice Henry’s decision focussed on whether the arbitration agreement fulfilled specific conditions under ss 7 and 8 of the CA Act and therefore obliged the dispute to be referred to arbitration (equivalent sections exist in international and domestic arbitration legislation throughout Australian jurisdictions).
The issues considered by the judge are broad and likely applicable to the interpretation of both domestic and international arbitration agreements in Australia.
The key issues before Justice Henry were:
- Given the wide, unqualified wording of the arbitration agreement, does it indicate an agreement between the parties to submit to arbitration disputes which have arisen between the parties “in respect of defined legal relationship” (an element of the statutory definition of “arbitration agreement”)?
- Were Cheshire’s non-contractual equitable and statutory claims subject to the arbitration agreement?
A “defined legal relationship”?
Generally, challenges to the scope of an arbitration agreement tend to focus on whether the terms of the agreement are wide enough to cover the subject of the dispute – for example, in wording such as “arising out of or related to this agreement”. In IBM Australia Ltd v National Distribution Services Pty Ltd (1991) 22 NSWLR 466, for example, the New South Wales Court of Appeal concluded this language indicated an intention for equitable and statutory claims related to the agreement to also be the subject of the arbitration clause.
Unusually, in this case, Cheshire contended that the arbitration agreement failed to qualify or define the “disputes or differences” to which it referred and therefore did not identify a “defined legal relationship”. In other words, the scope of the arbitration agreement was too broad – could it apply to any dispute or difference that could ever arise between these parties under any circumstances whatsoever?
After tracing through a history of relevant English, Australian and New Zealand cases, Justice Henry confirmed that the scope of an arbitration agreement should be construed broadly and informed by the context of the contract as a whole – the very fact that the clause was part of the Contract meant that it should be interpreted to mean disputes or differences relating to the defined legal relationship created by the Contract. Only in exceptional circumstances, for instance where there was no executed agreement between the parties and a lack of intention to be bound, could an arbitration agreement be too vague or uncertain to be enforced.
Claims outside the Contract?
A further point raised by Cheshire was that the substance of its claims against CMC – estoppel by convention, and also a claim for damages under ss 236 and 237 of the Australian Consumer Law to remedy CMC’s unconscionable conduct – were rights it was pursuing outside of the Contract.
Justice Henry observed that, “… a dispute pursuing rights said to arise outside a contract should nonetheless be regarded as arising out of or closely connected with the contract where the dispute turns upon the strict operation of the terms of the contract.” His Honour concluded that there was nothing in the arbitration agreement that suggested it should be read down as applying only to amounts payable under the Contract, as distinct from any amounts otherwise payable by law. This conclusion was distinguished from the scope of arbitration agreements that by their terms are narrowed only to disputes concerning money payable “under the agreement” where Australian courts have held that extra-contractual claims were not referrable to arbitration.
In this case, Justice Henry concluded that because the Contract’s purpose was the performance of paid works, the dispute about payment had a “sufficiently close and consequential connection” with the Contract and was therefore referrable to arbitration under the arbitration agreement. Ultimately, Justice Henry concluded that s 8 of the CA Act required the Court to refer the parties to arbitration in accordance with the arbitration agreement and ordered that the proceeding be stayed.
The decision is a useful reminder of the pro-arbitration stance adopted by Australian courts and should be welcomed by practitioners and commercial parties alike. It also serves to highlight the importance of carefully drafted arbitration agreements that capture the intended scope, including the following principles:
- Courts will interpret arbitration agreements broadly, having regard to the context of the contract as a whole.
- Notwithstanding that a dispute may relate to rights arising outside the terms of the contract, to the extent the dispute turns upon the strict operation of the terms of the contract, it will likely be regarded as arising out of or closely connected with the contract (unless explicitly excluded or restricted).
The Australian Centre of International Commercial Arbitration (ACICA) has unveiled revised Arbitration Rules due to enter into force in April 2021. As arbitration continues to be on the rise in Australia, and ACICA enjoys record caseloads, the 2021 ACICA Rules set out ACICA’s vision for the future of arbitration.
The 2021 Rules further strengthen ACICA’s status as the preeminent arbitral institution in Australia. The revision modernises the ACICA Rules by codifying recent practices in relation to technology, virtual and hybrid hearings, and anticipating the needs of the arbitration community in key areas such as consolidation and multi-contract arbitrations, effective case management and costs.
We set out below the salient features of the 2021 ACICA Arbitration Rules (which are broadly similar to those made to the ACICA Expedited Rules).
Notable amendments in the 2021 ACICA Rules
New provisions embracing the digitalisation of arbitration: Virtual hearings and paperless filing
The new rules include timely revisions expressly allowing Tribunals to hold conferences and hearings virtually or in a combined (or ‘hybrid’) form. The holding of virtual hearings has become the norm during the present COVID-19 pandemic, and the revision modernises the ACICA Rules in line with recent trends and practices.
Under the new rules, if a hearing is held virtually it will be deemed to be held at the seat.
ACICA has moved to a default electronic position of requiring e-filing of a Notice of Arbitration and Answer by email or through its dedicated online portal. Notices may also be delivered electronically or by “any other appropriate means that provides a record of its delivery” reflecting evolving practices. The provision on delivery addresses for notices has been extended to include an address “according to the parties’ practice in prior dealings”.
Recognising the increased movement of sensitive information electronically, the Tribunal may adopt measures to protect information shared in the arbitration and ensure any personal data produced or exchanged in the arbitration is processed and/or stored with regard to any applicable law.
Under the new rules, unless the parties agree otherwise, or the Tribunal or ACICA directs otherwise, any award may be signed electronically and/or in counterparts and assembled into a single instrument.
Extended scope for consolidation and multi-contract arbitrations
The 2021 Rules adopt a more liberal approach to consolidation. In this regard, the compatibility of the relevant arbitration agreements has become central in order to allow for consolidation in relation to a vertical chain of contracts.
Article 16 (Consolidation of Arbitrations) states that ACICA may consolidate two or more arbitrations into a single arbitration, if:
- the parties have agreed to the consolidation;
- all the claims in the arbitrations are made under the same arbitration agreement; or
- the claims in the arbitrations are made under more than one arbitration agreement, a common question of law or fact arises in both or all of the arbitrations, the rights to relief claimed are in respect of, or arise out of, the same transaction or series of transactions, and ACICA finds the arbitration agreements to be compatible. (Emphasis added).
ACICA’s power to consolidate proceedings therefore encompasses proceedings arising out of the same transaction or series of transactions, where ACICA finds the arbitration agreements to be compatible.
The 2021 Rules also present a streamlined approach for multi-contract arbitration. Article 18 (Single Arbitration under Multiple Contracts) now allows for composite Notices of Arbitration, which means that parties can commence a single arbitration in respect of disputes under multiple contracts. An arbitration can therefore be commenced under multiple contracts with a single Notice of Arbitration, provided that the Notice includes an application to ACICA addressing the threshold issues for consolidation, together with identifying and providing a copy of each contract and arbitration agreement invoked. In the event ACICA rejects the application for consolidation, the claimant is required to file a separate Notice of Arbitration for each arbitration that has not been consolidated.
In addition, the new Article 19 (Concurrent Proceedings) empowers the Tribunal to manage related proceedings, following consultation with the parties. The Tribunal can exercise case management powers to conduct related proceedings concurrently, or suspend a proceeding, where the same Tribunal is constituted in each arbitration and there is a common question of law or fact. This allows Tribunals to manage related proceedings in a time and cost efficient way.
Early dismissal procedure
The new Article 25.7 (General Provisions) expressly empowers the Tribunal to make an award granting early dismissal or termination of any claim, defence or counterclaim. Consistent with other developments, this provision enhances the Tribunal’s broad powers under the ACICA Rules, now expressly including summary dismissal and early termination.
Effective case management
Time limit for rendering awards
An Arbitral Tribunal is required, absent a shorter period being required by law or the parties, to render an award no later than the earlier of 9 months from the date the file is transmitted to the Tribunal, or 3 months from the date the Tribunal declares the proceedings closed, under the new Article 39.3 (Closure of Arbitration Proceedings).
ACICA may extend these time frames following a reasoned request from the Tribunal, or if ACICA otherwise deems it necessary.
Alternative dispute resolution
The previous version of Article 25 (General Provisions) already required Tribunals to raise for discussion with the parties, as soon as practicable after being constituted, the possibility of using other techniques to facilitate the settlement of the dispute. The 2021 Rules supplement this mandate by specifying that such other techniques to facilitate the settlement of the dispute include mediation and other forms of alternative dispute resolution (ADR).
In any case, under the new Article 55 (Alternative Dispute Resolution), Tribunals must discuss with the parties the possibility of using mediation, or other forms of ADR, “to facilitate the quick, cost effective and fair resolution of the dispute.” Further, parties can apply for the suspension of the arbitration to allow for mediation or other form of ADR on such terms as the Tribunal considers appropriate, with the arbitration resuming at any time upon the written request of any of the parties.
Third-party funding disclosures
There is a new requirement, under Article 54 (Third Party Funding), to disclose third-party funding and a continuing obligation to disclose any changes to the third-party funding arrangement. In this regard, the Tribunal has the power to order a party to disclose the existence and identity of a third-party funder at any time during the proceedings.
Costs and fees
There are new substantive provisions on deposits for costs and costs decisions by the Tribunal and by ACICA. The new Article 48 (Costs of Arbitration) sets out a detailed list of the items comprising the term “costs of the arbitration” and subsequent Articles govern, in detail, the deposit of costs and the decisions on costs of the arbitration by ACICA and by the Tribunal.
The revised rules state that the Tribunal may make costs decisions at any time during the arbitration, and expressly stipulate the default position that the unsuccessful party shall bear the costs of the arbitration, subject to a Tribunal’s discretion to apportion costs having regard to the circumstances of the case.
Further, under the new Article 49 (Deposit of Costs), the Tribunal will not proceed with the arbitration without ascertaining at all times from ACICA that ACICA is in possession of the requisite funds. In the event that any deposit of costs directed to be paid by ACICA remains unpaid (in whole or in part), the Tribunal may, after consulting ACICA, order the suspension or termination of the whole or any part of the arbitration.
The rules also prohibit the Tribunal from charging additional fees for interpretation, correction, or completion of the award.
If you have any questions about the new rules or how they might affect you, please reach out to the contacts below or your usual Herbert Smith Freehills contact.