This note deals with a recent Federal Court decision in respect of freezing orders to prevent dissipation of assets in a subsidiary of a judgment debtor.
A decision of the Court of Appeal of South Australia has set a relatively high bar both for the clarity of the manifestation of the parties’ agreement that there be an appeal on a question of law under s 34A(1)(a) and the obviousness of the error required to be shown to obtain leave under s 34A(3)(c)(i).
Court of Arbitration for Sport dismisses WADA appeal and affirms Shayna Jack’s reduced suspension due to lack of intent
The Appeal Division of the Court of Arbitration for Sport (“CAS”) has dismissed appeals by the World Anti-Doping Agency and Sports Integrity Australia against a first instance decision of CAS which reduced Shayna Jack’s period of suspension from 4 years to 2, for taking the prohibited substance, Ligandrol.
Pro-enforcement bias does not justify an enforcement court ignoring the primacy of the arbitration agreement
The Full Court of the Federal Court refused to enforce a foreign award on the grounds that the composition of the arbitral tribunal was not in accordance with the agreement of the parties, notwithstanding that the arbitral tribunal had been appointed by the supervisory court of the seat.
The Court of Arbitration for Sport (“CAS”) has partially upheld an appeal by swimmer Shayna Jack reducing her period of suspension from 4 years to 2 for taking the banned substance, Ligandrol.
The New South Wales Court of Appeal recently revisited the principles relevant to determining the scope of an arbitration clause in overturning the decision of the NSWSC granting a stay in favour of arbitration.
The Supreme Court of Victoria has determined to enforce part of an arbitration award under the Commercial Arbitration Act 2011 (Vic), while refusing to enforce other parts where the reasons were inadequate and which also failed to identify a specific and ascertainable award amount.
In Rinehart v Hancock Prospecting Pty Ltd, the High Court considered the ability of a non-party to an arbitration agreement to stay court proceedings by claiming ‘through or under’ a party to the arbitration agreement. The plurality gave the phrase a broad interpretation which, it is submitted, creates uncertainty.
In Rinehart v Hancock Prospecting, the High Court underlined that arbitration clauses are to be interpreted in accordance with orthodox contractual interpretation principles, but missed the opportunity to clarify whether the liberal presumptive approach to the interpretation of arbitration agreements laid down by the House of Lords in Fiona Trust is good law in Australia.
The Supreme Court of Victoria’s Arbitration List judge has confirmed that the appropriate standard of review by a court of an arbitral tribunal’s preliminary ruling on jurisdiction is a de novo review.
Arbitral tribunals have the ‘competence’ to make rulings on their own jurisdiction under s 16 of the CAA (and Model Law). However, within 30 days after the ruling, a party can seek a review of that decision by asking the Court to decide the matter (s 16(9)). The Supreme Court of Victoria has held, by reference to international authorities, that such a review is by way of hearing de novo.
The Queensland Court of Appeal upholds an arbitrator’s award despite procedural missteps – no “real unfairness” or “practical injustice”.
The Full Court of the Federal Court of Australia adopts (guardedly) the ‘prima facie’ approach standard of review to applications for stay of court proceedings brought in the face of an arbitration agreement, bringing Australian jurisprudence in line with that of Singapore and Hong Kong.
Arbitration – scope of arbitration agreement – whether a dispute as to an alleged breach of trust constitutes a “matter” within the scope of an arbitration agreement – proper approach to construction of arbitration agreement – whether the arbitration agreement incapable of being performed – application for stay of proceedings under s 8 of Commercial Arbitration Act 2012 (WA)