Energy City Qatar Holding Company v Hub Street Equipment Pty Ltd (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: JAGOT J
• Judgment Date: 05 August 2020
• Neutral Citation: [2020] FCA 1116
• Date: 05 August 2020

FEDERAL COURT OF AUSTRALIA

Energy City Qatar Holding Company v Hub Street Equipment Pty Ltd (No 2) [2020] FCA 1116

File number:	NSD 94 of 2020
Judge:	JAGOT J
Date of judgment:	5 August 2020
Catchwords:	ARBITRATION – application to enforce a foreign award – where respondent contends that it did not receive proper notice – where respondent contends that arbitral procedure was not in accordance with the contract between the parties – where respondent contends that the arbitral award involved a breach of natural justice – application to enforce award granted
Legislation:	International Arbitration Act 1974 (Cth) ss 2D, 8, 8(3), 8(5), 8(5)(b), 8(5)(c), 8(5)(e), 8(5)(f), 8(7), 8(7A)(b), 39, 39(2)(b) Law No. 2 of 2017 Promulgating the Civil and Commercial Arbitration Law (Qatar) Law No. 13 of 1990 Promulgating the Civil and Commercial Code of Procedure (Qatar) Law No. 22 of 2004 Promulgating the Civil Code (Qatar)
Cases cited:	Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46 IMC Aviation Solutions Pty Ltd v Altain Khuder LLC [2011] VSCA 248; 38 VR 303 TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; 232 FCR 361 Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) [2012] FCA 276; 201 FCR 535 Uganda Telecom Limited v Hi-Tech Telecom Pty Ltd [2011] FCA 131; 277 ALR 415
Date of hearing:	24 July 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	International Commercial Arbitration
Category:	Catchwords
Number of paragraphs:	64
Counsel for the Applicant:	T Castle
Solicitor for the Applicant:	Cowell Clarke
Solicitor for the Respondent:	M Bonnell of Henry William Lawyers

ORDERS

		NSD 94 of 2020
BETWEEN:	ENERGY CITY QATAR HOLDING COMPANY (REGISTERED IN THE CR UNDER NO. 34913) Applicant
AND:	HUB STREET EQUIPMENT PTY LTD (ABN 52 109 882 617) Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	5 AUGUST 2020

THE COURT ORDERS THAT:

1. The parties confer and within seven days file agreed or competing orders reflecting the reasons for judgment published today.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1. These reasons for judgment concern an application to enforce a foreign award under the International Arbitration Act 1974 (Cth) (the IAA).

2. For the reasons which follow I have decided that the Court should enforce the award as if it were a judgment of this Court in accordance with s 8(3) of the IAA as no ground for refusal of such enforcement has been proved as provided for in ss 8(5) or 8(7) of the IAA and otherwise all procedural requirements for enforcement have been satisfied.

3. In these reasons for judgment the applicant is referred to as ECQ and the respondent is referred to as Hub.

The IAA

4. The objects of the IAA in s 2D include:

(a) to facilitate international trade and commerce by encouraging the use of arbitration as a method of resolving disputes; and

(b) to facilitate the use of arbitration agreements made in relation to international trade and commerce; and

(c) to facilitate the recognition and enforcement of arbitral awards made in relation to international trade and commerce;

…

5. By s 39 of the IAA, where a court is considering exercising a power under s 8 to enforce a foreign award or exercising the power under s 8 to refuse to enforce a foreign award, including a refusal because the enforcement of the award would be contrary to public policy, the court must have regard to the objects of the IAA and the fact that arbitration is an efficient, impartial, enforceable and timely method by which to resolve commercial disputes and awards are intended to provide certainty and finality.

6. In the present case there is no issue about any formal evidentiary or procedural requirement under the IAA. The issues are confined to the operation of s 8 of the IAA which, to the extent relevant, is as follows:

(3) Subject to this Part, a foreign award may be enforced in the Federal Court of Australia as if the award were a judgment or order of that court.

(3A) The court may only refuse to enforce the foreign award in the circumstances mentioned in subsections (5) and (7).

…

(5) Subject to subsection (6), in any proceedings in which the enforcement of a foreign award by virtue of this Part is sought, the court may, at the request of the party against whom it is invoked, refuse to enforce the award if that party proves to the satisfaction of the court that:

…

(c) that party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his or her case in the arbitration proceedings; or

…

(e) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

…

(7) In any proceedings in which the enforcement of a foreign award by virtue of this Part is sought, the court may refuse to enforce the award if it finds that:

(a) the subject matter of the difference between the parties to the award is not capable of settlement by arbitration under the laws in force in the State or Territory in which the court is sitting; or

(b) to enforce the award would be contrary to public policy.

(7A) To avoid doubt and without limiting paragraph (7)(b), the enforcement of a foreign award would be contrary to public policy if:

…

(b) a breach of the rules of natural justice occurred in connection with the making of the award.

Facts

7. In 2010 ECQ and Hub entered into a contract entitled “Contract for the supply and installation of street lighting and street furniture in Energy City” (the Contract).

8. Relevant contractual provisions include:

1. Art 44: which provided that any notice to be given by either party under the Contract shall be given by prepaid post or fax to certain addresses, the address for Hub being a street address in Chippendale, Sydney (the Chippendale Address);

2. Art 46: which provided that any dispute about the Contract which is not amicably settled within 28 days shall be referred to arbitration in accordance with the rules of arbitration in Qatar and that an arbitration committee shall consist of three members, one member being appointed by each party within 45 days of one party receiving a written notice from the other party to start arbitration proceedings. The third member shall be mutually chosen by the first two members and shall chair the arbitration committee and issue the decision of the arbitration committee.

3. Art 47: which provides that the Contract is made in the State of Qatar and is subject to the laws of the State of Qatar.

4. Art 50: which provides that the English language shall be the ruling language of the Contract and accordingly all matters relating to the Contract shall be in English.

9. ECQ paid US$820,322.16 to Hub under the Contract as an advance payment. ECQ decided not to proceed with the Contract in 2012 and sought repayment of the money paid under the Contract. Following some email communications and meetings in 2012 in which ECQ continued to seek repayment of the money Hub informed ECQ that it would identify its position after obtaining legal advice. However, Hub never communicated again with ECQ in circumstances where Hub retained the money ECQ had...