The Toolbox: From Covid-19 to the conflict in Ukraine – Force majeure and other contractual relief

As sanctions are imposed due to the military action in Ukraine, there will be impacts on performance of construction contracts in Europe but also elsewhere as supply chains are disrupted. This threatens to compound existing upheaval on the supply of essential construction materials required for projects in Australia and elsewhere caused by Covid-19. Parties who may be affected by the escalating developments in Europe and are concerned about potential flashpoints elsewhere will likely have cause to freshly consider force majeure and other contractual provisions providing for potential relief under construction contracts. We provide a refresher on some key issues to consider below. Read more

No enforcement without notice: Federal Court of Australia declines to enforce an award for failure to give proper notice of the arbitration

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 [2021] 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. Read more

THE CLOAK OF CONFIDENTIALITY IN ARBITRATION IS NOT EASILY REMOVED: FEDERAL COURT OF AUSTRALIA DECLINES TO ENFORCE A CONSENT AWARD THAT HAD BEEN SATISFIED

In the recent case of EBJ21 v EB021 [2021] 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. Read more

Expansion to Australia’s sanctions regime passed by Parliament

By Leon Chung, Christine Wong and Shannan Casey On 2 December 2021 the Australian Parliament passed the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Bill 2021 (Bill) introducing a new thematic sanctions regime to the Autonomous Sanctions Act 2011 (Act) and Autonomous Sanctions Regulations 2011 (Regulations). Read more

Climate litigation trends: three significant developments you need to know about

It has been an active 12 months in the climate change litigation space, both in Australia and internationally. The political and legal landscape is rapidly evolving and the need to keep pace with these developments is presenting companies with new strategic challenges. In this update, we provide a summary of three recent key developments in climate change litigation in Australia and New Zealand. Read more

FEDERAL COURT OF AUSTRALIA AGAIN RECOGNISES AND ENFORCES ICSID AWARDS

The Federal Court of Australia has recognised and enforced two awards issued in investor-state arbitrations conducted under the rules of the International Centre for Settlement of Investment Disputes (ICSID) (ICSID case numbers ARB/13/31 and ARB/13/36). The Federal Court decision, Eiser Infrastructure Limited v Kingdom of Spain [2020] FCA 157 (Eiser), directly considers whether foreign states are immune from enforcement of an ICSID award in Australia. Read more