FEDERAL COURT OF AUSTRALIA
Coeclerici Asia (Pte) Ltd v Gujarat NRE Coke Limited  FCA 882
|Citation:||Coeclerici Asia (Pte) Ltd v Gujarat NRE Coke Limited  FCA 882|
|Parties:||COECLERICI ASIA (PTE) LTD v GUJARAT NRE COKE LIMITED and SHRIARUN KUMAR JAGATRAMKA|
|File number:||NSD 437 of 2013|
|Date of judgment:||30 August 2013|
|Catchwords:||ARBITRATION – international arbitration – whether award debtors can resist enforcement of a foreign arbitral award on the ground that they were denied a reasonable opportunity of presenting their case by the arbitral tribunal – whether, by reason of the circumstance that the English High Court of Justice refused to set aside an award in an international arbitration held in London on grounds which included the ground that the award debtors had been denied a reasonable opportunity of presenting their case, the award debtors were precluded from relying upon the same ground in resisting enforcement proceedings in Australia – whether receivers should be appointed to certain shares held by the award debtors in corporations incorporated in Australia – whether Freezing Orders should be continued in aid of enforcement|
|Legislation:||Federal Court of Australia Act 1976 (Cth), s 57
International Arbitration Act 1974 (Cth), ss 2D, 3, 8, 9, 18C and 39 and Schedule 1
International Arbitration Act Amendment Act 2010 (Cth) (Act No 97 of 2010)
Supreme Court Act 1970 (NSW), s 67
The Arbitration Act 1996 (UK), s 33 and s 68(2)(a) and (c)
Gujarat NRE Coke Limited and Anor v Coeclerici Asia (Pte) Ltd  EWHC 1987 (Comm) related
Meagher, Heydon and Leeming, Equity Doctrines and Remedies (4th edn, Butterworths LexisNexis, 2002)
|Date of hearing:||5 August 2013|
|Number of paragraphs:||116|
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY
NSD 437 of 2013
COECLERICI ASIA (PTE) LTD
GUJARAT NRE COKE LIMITED
SHRIARUN KUMAR JAGATRAMKA
DATE OF ORDER:
7 AUGUST 2013
THE COURT DECLARES THAT:
1. Pursuant to s 8(3) of the International Arbitration Act 1974, the applicant is entitled to have the award dated 14 February 2013 made by Messrs David Martin-Clark, Mark Hamsher and Christopher Moss (the Award), a certified copy of which is Exhibit E in this proceeding, recognised by this Court and to enforce the Award in this Court as if the Award were a judgment of this Court.
THE COURT ORDERS THAT:
2. There be judgment in favour of the applicant against each of the first and second respondents in the amounts of:
(a) US$8,804,336.42 (comprising US$8,500,000 Award principal and US$304,336.42 pre-judgment interest; and
(b) GBP12,232.85 (comprising GBP11,810.00 Award amount in respect of arbitration costs awarded and GBP422.85 pre-judgment interest on that amount).
3. Pursuant to s 52(2)(b) of the Federal Court of Australia Act 1976 (Cth), the respondents pay to the applicant post-judgment interest on the sums referred to in par 2 above at the rate of 7% per annum, compounded quarterly until payment in full.
4. Andrew Cummins and Antony Resnick be appointed as receivers with the powers of receivers and managers (the Receivers), over:
(a) The first respondent’s fully-paid ordinary shares in Gujarat NRE Coking Coal Limited (ACN 111 244 896);
(b) The second respondent’s fully-paid ordinary shares in Gujarat NRE Coking Coal Limited (ACN 111 244 896); and
(c) The first respondent’s fully paid ordinary shares in Gujarat NRE Limited (ACN 121 382 438) (GNL).
including powers to:
(i) appoint a solicitor, accountant or other professionally qualified person to assist the Receivers;
(ii) inspect the books and records of GNL;
(iii) at the option of the Receivers:
(A) sell the shares referred to above, or a sufficient number of them, as may be required to discharge the judgment amounts and post-judgment interest on market (if applicable), by private sale or auction within four (4) months of the date of this order; and/or
(B) cause the sale by GNL of sufficient shares held by it in Gujarat NRE Coking Coal Limited as may be required to discharge the judgment amounts and post-judgment interest and the payment of the proceeds of such sale to the Receivers by way of dividend, including if required the calling of a general meeting of GNL to appoint new directors in lieu of the current directors in order to effect the said sale and payment of the said dividend; and
for the purpose of causing such sale of shares or such payment of dividends, to execute any document or do any other act or thing in the name of GNL, the first respondent and the second respondent.
(iv) within five (5) business days of the completion of any such sale or receipt of dividends, as the case may be, pay the proceeds into Court; and
(v) within ten (10) business days of the completion of any such sale or receipt of dividends, as the case may be, file accounts with the Court and serve on the respondents care of their solicitors a copy of those accounts.
5. Pursuant to r 14.21 of the Federal Court Rules 2011 (FCR):
(a) Within seven (7) days of the making of this Order, the Receivers file with the Court a guarantee in accordance with r 14.22 FCR and Form 30 of the Federal Court Forms; and
(b) The order in par 4 above shall take effect only upon filing of the guarantee provided for in subpar (a) above.
6. The reasonable costs and disbursements of the Receivers be borne:
(a) First, from the proceeds of the sale of the shares and/or the dividends referred to in par 4 above;
(b) Second, by the first respondent; and
(c) Third, by the second respondent,
and be paid only after the Court has approved the amount thereof and ordered the payment thereof out of the amounts paid into Court pursuant to Order 4(iv) above or by the first respondent and/or the second respondent as the case may be.
7. The Orders in pars 4, 5 and 6 above be stayed until 10.00 am on Monday 2 September 2013.
8. The respondents pay the applicant’s costs of this proceeding, in an amount to be taxed or agreed, or pursuant to any order for a gross sum amount the court might in the future make following the making of any application for such order.
THE COURT DIRECTS THAT:
9. By 5.00 pm on Wednesday 7 August 2013, the applicant notify Armada (Singapore) PTE Ltd (Armada) of the terms of these Orders by serving a sealed copy thereof upon Armada’s solicitors on the record in proceedings numbered NSD 644 of 2012.
10. The parties have liberty to apply on three (3) days’ notice.
THE COURT NOTES THAT, in aid of enforcement of the above declaration and orders and upon the applicant by its solicitor continuing the undertakings as to damages given to the Court on 14 March 2013 (and continued thereafter) and on 28 May 2013:
11. The first respondent by its solicitor undertakes to the Court that, until further order, it will not dispose of, deal with, encumber or diminish any of the shares which it holds in Gujarat NRE Limited (ACN 121 382 438).
12. Gujarat NRE Limited (ACN 121 382 438) by its solicitor undertakes to the Court that, until further order, it will not dispose of, deal with, encumber or diminish any of the shares which it holds in Gujarat NRE Coking Coal Limited (ASX code GNM).
13. In accordance with Order 3 made on 2 April 2013, the Freezing Orders in Annexure “A” to the Orders made on 14 March 2013 (as varied on 25 March 2013) are to continue in place until further order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY
NSD 437 of 2013
COECLERICI ASIA (PTE) LTD
GUJARATNRE COKE LIMITED
SHRIARUN KUMAR JAGATRAMKA
30 AUGUST 2013
REASONS FOR JUDGMENT
- The applicant, Coeclerici Asia (Pte) Ltd (Coeclerici), a Singaporean corporation, is the award creditor under a final arbitral award dated 14 February 2013 (the Award) issued under the auspices of the London Maritime Arbitrators’ Association (LMAA).
- The arbitration which gave rise to the Award took place in London. The members of the arbitral tribunal were Messrs David Martin-Clark, Mark Hamsher and Christopher Moss (the arbitrators).
- The first respondent, Gujarat NRE Coke Limited (Gujarat Coke) is a corporation incorporated under the laws of India. It claims to be the largest independent producer of metallurgical coke in India. Metallurgical coke is a key ingredient in the production of steel. Gujarat Coke and the second respondent, ShriArun Kumar Jagatramka (Mr Jagatramka), are the award debtors under the Award. Mr Jagatramka is the Chairman and Managing Director of Gujarat Coke and the Executive Chairman of other corporations which Gujarat Coke owns or controls.
- Mr Jagatramka guaranteed the obligations of Gujarat Coke under a Payment Agreement dated 17 January 2013, the parties to which were Coeclerici, Gujarat Coke and Mr Jagatramka (the Payment Agreement). The Award gave effect to the Payment Agreement and to the commercial arrangements which led to the Payment Agreement.
- The Award is for the amounts of USD8,500,000 plus the sum of GBP11,810 plus interest on those sums at the rate of 7% per annum plus legal and other costs and expenses more particularly described in the Award. Coeclerici’s legal costs and expenses of the arbitration have not yet been assessed or quantified.
- In the present proceeding, Coeclerici seeks to enforce the Award in Australia pursuant to s 8(3) of theInternational Arbitration Act 1974 (Cth) (the IAA). Gujarat Coke and Mr Jagatramka both resist enforcement.
- Each of the respondents holds fully paid ordinary shares in Gujarat NRE Coking Coal Limited (ACN 111 244 896) (GNM). In addition, Gujarat Coke holds fully paid ordinary shares in Gujarat NRE Limited (ACN 121 382 438) (GNL). Both GNM and GNL are corporations incorporated in Australia. GNM is listed on the ASX.
- Gujarat Coke holds 86,092,966 fully paid ordinary shares in GNM and Mr Jagatramka holds 6,527,417 fully paid ordinary shares in GNM. In addition, Mr Jagatramka and his wife have relevant interests in 880,138,284 fully paid ordinary shares in GNM and in 4,500,000 options in GNM. Together, Gujarat Coke and Mr and Mrs Jagatramka control GNM.
- Gujarat Coke holds 100% of the issued capital of GNL. GNL owns shares in GNM.
- GNM and an associated corporation own or control two coal mines in Australia. Those mines produce coking coal for sale to corporations associated with GNM and others.
- Gujarat Coke and Mr Jagatramka have other assets in Australia. So far, however, Coeclerici has concentrated on the shares which I have described at – above. I shall refer to the shares described in those paragraphs as the relevant shares.
- The present proceeding was commenced on 13 March 2013 when Coeclerici filed its Originating Application and an Interlocutory Application by which it claimed Freezing Orders against Gujarat Coke and Mr Jagatramka.
- On 14 March 2013, I heard Coeclerici’s application for interlocutory relief. Strictly speaking, that application was an ex parteapplication, although, in fact, Senior Counsel for the respondents was present in Court while Senior Counsel for Coeclerici made that application. I permitted Senior Counsel for the respondents to make submissions in relation to the substance of that application, notwithstanding its ex parte character.
- On 14 March 2013, I made Freezing Orders against the respondents. By those orders, the Court restrained the respondents from removing assets from the jurisdiction upon the terms more specifically addressed in the orders. In particular, the Court restrained the respondents from dealing with their shares in GNM.
- On 28 May 2013, Gujarat Coke undertook to the Court not to dispose of, deal with, encumber or diminish any of the shares which it holds in GNL up to and including the determination of certain specified interlocutory applications and GNL gave a corresponding undertaking to the Court in respect of the shares which it holds in GNM.
- The Freezing Orders which I granted on 14 March 2013 and the undertakings given to the Court on 28 May 2013 by each of Gujarat Coke and GNL remain in place. They will continue to remain in place until further order of the Court.
- On 5 August 2013, I heard Coeclerici’s application for enforcement of the Award. On that day, I decided to enforce the Award and informed the parties of my decision. I told the parties that I would give my reasons as soon as practicable thereafter. During the course of the next day (6 August 2013), my Associate corresponded with the parties concerning the form of the orders which I intended to make. The purpose of that correspondence was to provide to the parties a reasonable opportunity to consider the precise orders which I had in mind and to make such submissions as they may be advised to make in relation to the form of those orders. The parties availed themselves of that opportunity.
- On 7 August 2013, I made final orders.
- These are my Reasons for Judgment for making the final orders which I made on 7 August 2013.
- Coeclerici has amended its Originating Application twice. The final iteration of that Application is the Further Amended Originating Application to Enforce a Foreign Award under the International Arbitration Act 1974 filed in Court on 5 August 2013, at the commencement of the hearing.
- The substantive relief claimed by Coeclerici in that version of its Originating Application is in the following terms:
On the grounds stated in the accompanying affidavit, the Applicant wants to enforce a foreign award under section 8(3) of the International Arbitration Act 1974, [the applicant claims]:
1. Pursuant to section 8(3) of the International Arbitration Act 1974, a declaration that the Applicant is entitled to enforce the Final Arbitration Award dated 14 February 2013 of Messrs David Martin-Clark, Mark Hamsher and Christopher Moss made in favour of the Applicant against the Respondents.
2. Judgment for the Applicant in the amounts of:-
(a) United States Dollars 8,500,000; and
(b) Pounds Sterling 11,810.00; together with
(c) Interest of US$49,583.43 and £68.89 from 2 February 2013 to 7 March 2013; and
(d) Pounds Sterling 40,000 or other such costs as agreed or ordered.
3. An order pursuant to Rule 39.06 that the Respondents pay to the Applicant post-judgmentinterest on the sums in 2(a)-(c) at the prescribed rate (currently 9%)compounded quarterly until payment in full.
4. A charging order in favour of the applicant over, alternatively the appointment of AndrewCummins and Antony Resnickor such other person as the Court may order as receiverswith the powers of receivers and managers (the Receiver(s), of:-
(a) The First Respondent’s fully-paid ordinary shares in Gujarat NRE CokingCoal Limited ACN 111 244 896
(b) The Second Respondent’s fully-paid ordinary shares in Gujarat NRE CokingCoal Limited ACN 111 244 896; and to the extent necessary
(c) A charging order over, alternatively the appointment of a receiver of the First Respondent’s fully paid ordinary shares in Gujarat NRE Limited (ACN 121382 438).
5. Orders under Rule 14.21 that:
(a) the Receiver(s) file with the Court a guarantee in accordance with Rule 14.22,within 7 days of the making of this order;
(b) the order in paragraph (a) above shall take effect only upon filing of theguarantee provided for in paragraph (a).
6. Orders under Rules 14.21 to 14.25 and sections 23 and/or 57 of the Federal Court ofAustralia Act 1976 that the powers of the Receiver(s) as receivers and managersinclude, but are not limited to:
(c) appointing a solicitor, accountant or other professionally qualified person to assistthe Receiver(s);
(d) inspecting the books and records of GNL;
(e) at the option of the Receiver(s):
(i) selling the shares referred to in order 4, or sufficient of them as requiredto discharge the judgment debts on market (if applicable), by private saleor auction within 3 months of the appointment of the Receiver(s) or suchother term as the Court may fix; and/or
(ii) causing the sale by GNL of sufficient shares held by it in GRE CokingCoal Limited and the payment of the proceeds of such sale to thereceiver(s) by way of dividend, including if required the calling of ageneral meeting of GNL to appoint new director(s) in lieu of currentdirectors in order to effect the sale and payment of dividend;
(f) within 5 business days of the completion of any such sale or the receipt of thedividends, as the case may be, pay the proceeds into Court:
(g) within 10 business days of the completion of any such sale or the receipt of the dividends, file accounts with the Court and serve on the Respondents a copy ofthose accounts.
7. An order that the reasonable costs and disbursements of the Receiver(s) be borne:
(a) first, from the proceeds of the sale or dividends, which costs and disbursementsmay be paid before the payment of any amount into Court;
(b) second, by the First Respondent.
THE RESPONDENTS’ GROUNDS OF OPPOSITION
- Pursuant to directions made by the Court, the respondents filed a Notice of Grounds of Opposition in which they specified the basis upon which they intended to resist the relief claimed by Coeclerici. The final iteration of that document is the Amended Notice of Grounds of Opposition filed in Court on 26 June 2013.
- In their Amended Notice of Grounds of Opposition, the respondents set out four grounds upon which they intended to oppose the relief claimed by Coeclerici. By the time of the hearing, the respondents had abandoned grounds 3 and 4, both of which referred to and relied upon an application which they had made to the High Court of Justice in England to set aside the Award. By the time of the hearing before me, those grounds had become redundant because the English Court had heard and disposed of the respondents’ application to set aside the Award.
- The grounds upon which the respondents ultimately relied in support of their resistance to enforcement of the Award in Australia were grounds 1 and 2 set out in their Amended Notice of Grounds of Opposition. Those grounds are in the following terms:
1. Under subsection 8(5)(c) of the International Arbitration Act 1974 (the “Act”) on the basis that the Respondents were not permitted a reasonable opportunity by the Tribunal to put their case in the arbitration proceedings due to the failure of the Tribunal to afford the Respondents:
a. A reasonable period of time to put their case in the arbitration.
Email from the Tribunal to parties’ solicitors sent on 4 February, 2013, notifying the Respondents that they had one day to provide reasons why the Tribunal should not proceed immediately to an Award in favour of the Applicant.
b. An extension of time to put their case upon being notified by the Respondents’ London solicitor that he could not obtain instructions within the time permitted.
i. Email from Respondents’ London solicitor to the Tribunal sent on 5 February, 2013 notifying that he was unable to obtain instructions.
ii. The Second Respondent, and the other officers of the First Respondent responsible for providing instructions on behalf of the First Respondent, were not available to provide instructions to the Respondents’ London solicitor between 4 February, 2013 and 6 February, 2013.
iii. Email from the Tribunal to the parties’ solicitors sent on 6 February, 2013 confirming that the Tribunal was proceeding to an Award.
c. The Tribunal did not regard the Respondents as entitled to put forward their case prior to the publication of the Award.
Email from the Tribunal to the parties’ solicitors sent on 10 February, 2013.
2. Under subsections 8(7)(b) and 8(7A)(b) of the Act on the basis that the failure of the Tribunal to afford the Respondents a reasonable opportunity to put their case in the arbitration proceedings was a breach of the rules of natural justice in connection with the making of the Award due to the failure of the Tribunal to:
i. Permit the Respondents an opportunity to be heard.
Emails from the Tribunal to the parties’ solicitors sent on 6, 10 and 12 February, 2013.
ii. Consider relevant material and arguments put to it.
The Tribunal failed to address in the Award the defences available to the Respondents as outlined in the emails from the Respondents’ solicitor to the Tribunal sent on 6 February, 2013 and 8 February, 2013.
- The factual substratum of each ground is essentially the same. The difference between them is that ground 1 relies upon s 8(5)(c) of the IAA whereas ground 2 relies upon s 8(7)(b) and s 8(7A)(b) of the IAA. Section 8(5)(c) relevantly provides that the Court may refuse to enforce a foreign arbitral award if the party against whom enforcement is sought proves to the satisfaction of the Court that that party was unable to present his or her case in the arbitration proceedings. This language is to be contrasted with Article 18 of the UNCITRAL Model Law on International Commercial Arbitration. There the phrase used is “… a full opportunity to present his or her case”.In Australia, for the purposes of Pt III of the IAA, those words are to be read as “… a reasonable opportunity to present the party’s case” (as to which, see s 18C of the IAA).
- Section 8(7)(b) of the IAA provides that the Court may refuse to enforce a foreign arbitral award if it finds that to enforce the award would be contrary to public policy. Section 8(7A) fleshes out the concept of public policy as used in s 8(7)(b). Section 8(7A)(b) provides that enforcement of a foreign arbitral award would be contrary to public policy if a breach of the rules of natural justice occurred in connection with the making of the Award.
THE ISSUES FOR DETERMINATION
- There is no doubt, in the present case, that the Award is a foreign award within the meaning of Pt II of the IAA. Further, Coeclerici proved the existence and terms of the Award and of the underlying arbitration agreement in accordance with the requirements of s 9 of the IAA. It also established that the United Kingdom is a Convention country. This latter fact was common ground.
- In the end, the issues for determination were:
(a) Whether the respondents had proved to the satisfaction of the Court that they were unable to present their case in the arbitration proceedings (ground 1);
(b) Whether the Court should refuse to enforce the Award because to do so would be contrary to the public policy of Australia for the reason that the respondents were denied natural justice (ground 2);
(c) Whether, even if one or other of both of ground 1 or ground 2 are made out, the Court should nonetheless enforce the Award; and
(d) Whether, in the event that the Court decides that the Award should be enforced, the Court should appoint receivers to the relevant shares.
THE LEGISLATIVE SCHEME
- Section 8 of the IAA provides for the recognition and enforcement of foreign arbitral awards in Australia. That section is in the following terms:
8 Recognition of foreign awards
(1) Subject to this Part, a foreign award is binding by virtue of this Act for all purposes on the parties to the arbitration agreement in pursuance of which it was made.
(2) Subject to this Part, a foreign award may be enforced in a court of a State or Territory as if the award were a judgment or order of that court.
(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).
(a) at any time, a person seeks the enforcement of a foreign award by virtue of this Part; and
(b) the country in which the award was made is not, at that time, a Convention country;
this section does not have effect in relation to the award unless that person is, at that time, domiciled or ordinarily resident in Australia or in a Convention country.
(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:
(a) that party, being a party to the arbitration agreement in pursuance of which the award was made, was, under the law applicable to him or her, under some incapacity at the time when the agreement was made;
(b) the arbitration agreement is not valid under the law expressed in the agreement to be applicable to it or, where no law is so expressed to be applicable, under the law of the country where the award was made;
(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;
(d) the award deals with a difference not contemplated by, or not falling within the terms of, the submission to arbitration, or contains a decision on a matter beyond the scope of the submission to arbitration;
(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
(f) the award has not yet become binding on the parties to the arbitration agreement or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made.
(6) Where an award to which paragraph (5)(d) applies contains decisions on matters submitted to arbitration and those decisions can be separated from decisions on matters not so submitted, that part of the award which contains decisions on matters so submitted may be enforced.
(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:
(a) the making of the award was induced or affected by fraud or corruption; or
(b) a breach of the rules of natural justice occurred in connection with the making of the award.
(8) Where, in any proceedings in which the enforcement of a foreign award by virtue of this Part is sought, the court is satisfied that an application for the setting aside or suspension of the award has been made to a competent authority of the country in which, or under the law of which, the award was made, the court may, if it considers it proper to do so, adjourn the proceedings, or so much of the proceedings as relates to the award, as the case may be, and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.
(9) A court may, if satisfied of any of the matters mentioned in subsection (10), make an order for one or more of the following:
(a) for proceedings that have been adjourned, or that part of the proceedings that has been adjourned, under subsection (8) to be resumed;
(b) for costs against the person who made the application for the setting aside or suspension of the foreign award;
(c) for any other order appropriate in the circumstances.
(10) The matters are:
(a) the application for the setting aside or suspension of the award is not being pursued in good faith; and
(b) the application for the setting aside or suspension of the award is not being pursued with reasonable diligence; and
(c) the application for the setting aside or suspension of the award has been withdrawn or dismissed; and
(d) the continued adjournment of the proceedings is, for any reason, not justified.
(11) An order under subsection (9) may only be made on the application of a party to the proceedings that have, or a part of which has, been adjourned.
- Subsection (3A) of s 8 of the IAA was inserted into the IAA by the International Arbitration ActAmendment Act 2010 (Cth) (Act No 97 of 2010) and applies in relation to proceedings to enforce a foreign award brought on or after 6 July 2010. That subsection makes very clear, in my view, that the only grounds upon which this Court is entitled to refuse to enforce a foreign award are those specified in subs (5) and subs (7) (read with subs (7A)) of s 8 of the IAA.
- Act No 97 of 2010 also removed the requirement that the leave of the Court be obtained before a foreign award could be enforced.
- Section 9 of the IAA provides:
9 Evidence of awards and arbitration agreements
(1) In any proceedings in which a person seeks the enforcement of a foreign award by virtue of this Part, he or she shall produce to the court:
(a) the duly authenticated original award or a duly certified copy; and
(b) the original arbitration agreement under which the award purports to have been made or a duly certified copy.
(2) For the purposes of subsection (1), an award shall be deemed to have been duly authenticated, and a copy of an award or agreement shall be deemed to have been duly certified, if:
(a) it purports to have been authenticated or certified, as the case may be, by the arbitrator or, where the arbitrator is a tribunal, by an officer of that tribunal, and it has not been shown to the court that it was not in fact so authenticated or certified; or
(b) it has been otherwise authenticated or certified to the satisfaction of the court.
(3) If a document or part of a document produced under subsection (1) is written in a language other than English, there shall be produced with the document a translation, in the English language, of the document or that part, as the case may be, certified to be a correct translation.
(4) For the purposes of subsection (3), a translation shall be certified by a diplomatic or consular agent in Australia of the country in which the award was made or otherwise to the satisfaction of the court.
(5) A document produced to a court in accordance with this section is, upon mere production, receivable by the court as prima facie evidence of the matters to which it relates.
- Section 39(1) of the IAA provides that this Court must have regard to the matters specified in s 39(2) of the IAA when interpreting the IAA, when considering exercising a power under s 8 of the IAA to enforce a foreign award or when considering 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.
- Section 39(2) of the IAA is in the following terms:
39 Matters to which court must have regard
(2) The court or authority must, in doing so, have regard to:
(a) the objects of the Act; and
(b) the fact that:
(i) arbitration is an efficient, impartial, enforceable and timely method by which to resolve commercial disputes; and
(ii) awards are intended to provide certainty and finality.
- The objects of the IAA are set out in s 2D. Section 2D provides:
2D Objects of this Act
The objects of this Act are:
(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; and
(d) to give effect to Australia’s obligations under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in 1958 by the United Nations Conference on International Commercial Arbitration at its twenty-fourth meeting; and
(e) to give effect to the UNCITRAL Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985 and amended by the United Nations Commission on International Trade Law on 7 July 2006; and
(f) to give effect to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States signed by Australia on 24 March 1975.
- Various terms are defined in s 3(1) of the IAA for the purposes of Part II – Enforcement of foreign awards. Relevantly, those expressions and definitions are:
agreement in writing has the same meaning as in the Convention.
arbitral award has the same meaning as in the Convention.
arbitration agreement means an agreement in writing of the kind referred to in sub article 1 of Article II of the Convention.
Convention country means a country (other than Australia) that is a ContractingState within the meaning of the Convention.
foreign award means an arbitral award made, in pursuance of an arbitration agreement, in a country other than Australia, being an arbitral award in relation to which the Convention applies.
- Section 3(2) of the IAA provides:
(2) In this Part, where the context so admits, enforcement, in relation to a foreign award, includes the recognition of the award as binding for any purpose, and enforce and enforced have corresponding meanings.
- Section 3 is in Part II—Enforcement of foreign awards, as are s 8 and s 9.
- The Convention referred to in s 3(1) and in Pt II of the IAA is:
… the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in 1958 by the United Nations Conference on International Commercial Arbitration at its twenty-fourth meeting, a copy of the English text of which is set out in Schedule 1.
- Articles II, III, IV and V of the Convention provide:
1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.
2. The term “agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.
3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.
Each ContractingState shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.
1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply:
(a) The duly authenticated original award or a duly certified copy thereof;
(b) The original agreement referred to in article II or a duly certified copy thereof.
2. If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.
1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:
(a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or
(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
(c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or
(d) 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
(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:
(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or
(b) The recognition or enforcement of the award would be contrary to the public policy of that country.
- The IAA is intended to give effect to the Convention. The IAA (including s 8) must be interpreted in light of the Convention.
- The onus of establishing one or more of the grounds upon which enforcement may be refused under s 8(5) and s 8(7) rests upon the party resisting enforcement (IMC Aviation Solutions Pty Ltd v AltainKhuder LLC (2011) 253 FLR 9 at 23–24 (per Warren CJ) and at 55–58 –(per Hansen JA and Kyrou AJA)).
THE RELEVANT FACTS
- The primary facts are not seriously in dispute.
- By a Purchase Agreement dated 15 September 2011 entered into between Coeclerici, as buyer, and Gujarat Coke, as seller, (the Purchase Agreement) Coeclerici agreed to buy from Gujarat Coke 40,000 metric tonnes of metallurgical coke plus or minus 10% subject to shipping tolerance. Delivery was to take place within the first three calendar months of 2012. Clause 3 of the Purchase Agreement set out specifications that were to apply to the metallurgical coke the subject of the Purchase Agreement.
- Clause 4 was in the following terms:
PRICE AND DELIVERY TERM
The provisional unit price (“Provisional Price”) for the goods sold hereunder shall be US$400 (Four Hundred United States Dollars) per metric tonne FOBTMundra or similar port on the West Coast of India as shall be from time to time advised by the Seller (Load Port).
The actual price (“Resale Price”) shall be the price at which the Buyer shall in his unfettered discretion and sole option re-sell the goods under customary trade terms and conditions to any third party outside India.
The Resale Price shall be adjusted by deduction of the cost of the actual net freight (in the case of a CFR or CIF sale and if borne by the Buyer), by the application of quality and premiums or penalties (if any), other claims (if any), and by the cost of insurance (if borne by the Buyer) to arrive at the adjusted price (“Adjusted Price”).
The final price (“Final Price”) payable to the Seller shall be the Adjusted Price minus the Buyer’s resale fee of 7.5% o(seven and one half percent) of the Adjusted Price.
- Clause 10 provided:
Within five Banking Days of the execution of this Agreement, the Buyer shall prepay the sum of ten million US Dollars by telegraphic transfer to the Seller’s designated bank account in India. Banking Days to mean days on which banks in Singapore, India and New York are open for business.
On or before the twelvth day prior to laycan, Buyer shall open a documentary letter of credit in the Seller’s favour for the value equal to the Final Price to be calculated in accordance with clause 4 above, less the amount already paid as prepayment. Such documentary letter of credit will be cashed by the Seller against presentation of Bill of Lading evidencing the loading on board of the goods according to the terms of this Agreement.
Where the value of the Final Price deducted by the prepaid amount shall not be yet known at the date of its issuance, the Buyer shall nonetheless issue the documentary letter of credit based on his good faith estimate of the correct amount and amend the letter of credit accordingly as soon as the Adjusted Price shall be finalised. The seller as beneficiary shall consent to any such change.
Where this value shall be a negative value, no letter of credit shall be opened and the Seller shall reimburse the excess value of the prepayment together with the Buyer’s fee for the resale by telegraphic transfer within the five Banking Days that shall follow the date of the bill of lading of the performing vessel.
- Clause 15 was in the following terms:
DAMAGES FOR NON-PERFORMANCE
If the Seller fails to perform his obligations under this Agreement for any reason whatsoever including Force Majeure, he shall return to the Buyer within 5 (five) Banking Days from Buyer’s request, all monies pre-paid by Buyer. In addition he shall at the same time pay and transfer to Buyer’s bank account, liquidated damages in the sum of US$750,000 (Seven Hundred Fifty Thousand United States Dollars), which the Seller agrees and accepts is a genuine estimate of the Buyer’s reasonably anticipated losses in case the Seller fails to perform this Agreement.
Failure by the Seller to perform may be established by the Buyer in his sole option by simple letter declaration which declaration shall be final and binding.
- Clause 25 provided that the Purchase Agreement was to be governed by and construed in accordance with the laws of England with explicit exclusion of the Contract (Rights of Third Parties) Act 1999. That clause also provided that any dispute of whatever nature arising out of or in connection with the Purchase Agreement had to be submitted to arbitration in London by three arbitrators under LMAA Terms.
- Clause 26 was an entire agreement clause.
- By Guarantee and Indemnity also dated 15 September 2011 (the Guarantee), Mr Jagatramka guaranteed the obligations of Gujarat Coke under the Purchase Agreement.
- Clause 14 of the Guarantee provided that:
Law and Jurisdiction
14.1 This Guarantee and Indemnity and any non-contractual obligations arising from or in connection with it shall in all respects be governed by and interpreted in accordance with English law.
14.2 For the exclusive benefit of the Buyer, the Guarantor irrevocably agrees that any dispute (a) arising from or in connection with this Guarantee and Indemnity or (b) relating to any non-contractual obligations arising from or in connection with this Guarantee and Indemnity shall be submitted to arbitration in London by three arbitrators under LMAA Terms.
14.3 Nothing contained in this Clause shall limit the right of the Buyer to commence any proceedings against the Guarantor in any other court of competent jurisdiction nor shall the commencement of any proceedings against the Guarantor in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or not.
14.4 The Guarantor irrevocably waives any objection which he may now or in the future have to the laying of any proceedings in any venue referred to in this Clause and any claim that those proceedings have been brought in an inconvenient or inappropriate forum, and irrevocably agrees that a judgment in any proceedings commenced in any such venue shall be conclusive and binding on the Guarantor and may be enforced in the courts of any other jurisdiction.
14.5 Without prejudice to any other mode of service allowed under any relevant law, the Guarantor:
14.5.1 Irrevocably appoints Mr D K Singh, Partner, SNR Denton (Fax +44 (0)20 7246 7777) (firstname.lastname@example.org) as his agent for service of process in relation to any proceedings before the UK courts; and
14.5.2 agrees that failure by a process agent to notify the Guarantor of the process will not invalidate the proceedings concerned.
- As provided for in the Purchase Agreement, Gujarat Coke issued a pro forma invoice to Coeclerici in the amount of USD10,000,000. On 23 September 2011, Coeclerici remitted USD10,000,000 to Gujarat Coke. This payment was, in effect, a prepayment or loan to Gujarat Coke.
- Gujarat Coke and Coeclerici could not ultimately agree on the price at which the metallurgical coke would be supplied under the Purchase Agreement. For this reason, Gujarat Coke did not deliver any metallurgical coke to Coeclerici within the first three calendar months of 2012. As a result, Coeclerici demanded the refund of the USD10,000,000 which it had prepaid to Gujarat Coke. It also demanded liquidated damages in accordance with the terms of the Purchase Agreement. In response to Coeclerici’s demand, Gujarat Coke made two payments totalling USD2,000,000. Each payment was in the amount of USD1,000,000. Those payments were made on 12 June 2012 and on 29 August 2012 respectively.
- Gujarat Coke did not make any further payments in response to Coeclerici’s demands.
- On 17 August 2012, Coeclerici commenced arbitration proceedings in London against Gujarat Coke and Mr Jagatramka seeking to recover the balance of the prepayment which it had made (USD8,000,000) together with liquidated damages.
- On 17 January 2013, shortly before the hearing of the arbitration was scheduled to commence in London, the parties informed the arbitrators that they had agreed to suspend the arbitration proceedings in order to allow Gujarat Coke and Mr Jagatramka an opportunity to repay the outstanding sums. The terms of this agreement were set out in the Payment Agreement.
- I set out below the Payment Agreement:
THIS PAYMENT AGREEMENT (the “Payment Agreement”) is made on 17th January 2013
1. COECLERICI ASIA (PTE) LTD, a company incorporated in and under the laws of Singapore whose registered office is situated at 350 Orchard Road, #16-01 Shaw House Tower, Singapore 232268 (“Coeclerici”);
2. GUJARAT NRE COKE LIMITED, a company incorporated in and under the laws of India whose registered office is situated at 22 Camac Street, Block C, 5th Floor, Kolkata 700016, India (“NRE”),
3. SHRIARUN KUMAR JAGATRAMKA, an individual whose residence is at Basant Tower, Clyde Row, Hastings, Kolkata 700022, India (the “Guarantor”)
(together the “Parties”).
A. Coeclerlci and NRE entered an agreement dated 15 September 2011 with contract number CCA-NRE- 20110913-01 for the sale and purchase 40,000 MTs +/- 10% of Metallurgical Coke (the “Cargo”) with NRE as seller and Coeclerici as buyer (the “Agreement”).
B. Pursuant to the terms of the Agreement, Coeclerici was required to prepay the sum of US$10,000,000 to NRE as provisional payment for the Cargo (the “Prepayment”). If for any reason whatsoever, deliver of Cargo is not made latest by 31st March 2012 as per the terms of the Agreement, NRE was obliged to refund, inter alia, the Prepayment to Coeclerici.
C. Coeclerici and the Guarantor entered a separate agreement dated 15 September 2011 whereby the Guarantor guaranteed the due and punctual observance and performance by NRE of its obligations under, inter alia, the Agreement (the “Guarantee”).
D. In the event of NRE not delivering any Cargo to Coeclerici within the first three calendar months of 2012. Accordingly, Coeclerici demanded payment of, inter alia, the Prepayment from NRE and the Guarantor. NRE made 2 payments, of US$1,000,000 each, on 12 June 2012 and 29 August 2012 and Coeclerici acknowledges that the obligation to pay liquidated damages which were due underthe Agreement has been discharged. The principal sum which remains due to Coeclerici is US$8,000,000 (the “Principal Sum”).
E. On 17 August 2012, Coeclerici commenced LMAAarbitration proceedings in London against NREand the Guarantor in order to recover the sums due. The matter is due to be heard on 21 January 2013 before Messrs Mark Hamsher, David Martin-Clark and Christopher Moss (who, together with any substitute arbitrator appointed, are referred to as the “Tribunal”).
F. The Parties have agreed to suspend the arbitration proceedings to allow NRE and the Guarantor an opportunity to repay the outstanding sums and wish to set out the terms of their agreement in this Payment Agreement.
IT IS HEREBY AGREED AS FOLLOWS:
1. NRE and the Guarantor fully acknowledge and admit that the Principal Sum is due and payable to Coeclerici and which amount is final and is not subject to any set off, counterclaim or other deduction whatsoever. In consideration for Coeclerici’s agreement to suspend the arbitration proceedings, NRE and the Guarantor hereby agree to pay to Coeclerici the Principal Sum plus an additional payment ofUS$500,000 on the terms set out in Clause 2 of this Payment Agreement. For the avoidance of doubt, the obligations of NRE and the Guarantor under this Payment Agreement are joint and several.
2. NRE and the Guarantor shall make the following payments to Coeclerici (the “Settlement Payments”):
(a) payment ofUS$600,000 within 15 days of the date of this Payment Agreement;
(b) payment ofUS$3,000,000 by 28 February 2013; and
(c) payment ofUS$4,900,000 by 28 March 2013
The Settlement Payments shall be made by telegraphic transfer to the following bank account:
Account Name: Coeclerici Asia (Pte) Ltd
Bank: DEUTSGSG BANK SINGAPORE
One Raffles Quay #16-00
South Tower Singapore 048583
Account No.: 2509438-05-5
SWIFT Code: DEUTSGSG
3. The current arbitration proceedings shall be suspended from the date of signature of this Payment Agreement and for as long as NRE and the Guarantor continue to perform their obligations hereunder. Payment in full and in accordance with clause 2 above of the Settlement Payments shall be in full and final settlement of all disputes between the Parties arising under the Agreement and the Guarantee. Upon full and punctual payment of all of the Settlement Payments in accordance with the terms of this Payment Agreement, the Parties shall be discharged from nil obligations and liabilities under the Agreement and the Guarantee and will take steps to terminate the arbitration proceedings. Each Party shall each bear its own legal fees and expenses and the costs of the Tribunal shall be shared as follows: 50% payable by Coeclerici and 50% payable by NRE and the Guarantor.
4. In the event that NRE and the Guarantor fail to pay any of the Settlement Payments in accordance with this Payment Agreement, Coeclerici shall be entitled to resume the suspended arbitration proceedings and/or commence new arbitration proceedings in accordance with this Payment Agreement and the settlement in clause 3 shall be null and void. In that event, NRE and the Guarantor expressly and irrevocably agree that Coeclerici will be entitled to an immediate consent award, without the need for any pleadings or hearings, for the following:
(a) the Settlement Payments less any sums paid after the date of this Payment Agreement;
(b) all reasonable costs and expenses incurred after the date of default, including but not limited to legal costs, the costs of the Tribunal, arbitration costs and any legal or other costs and expenses incurred in enforcing this Payment Agreement and any costs and expenses incurred in obtaining such an award; and
(c) interest at 7% from the date of default compounded quarterly until payment in full.
5. The terms of this Payment Agreement are confidential and neither Party shall disclose any term of this Payment Agreement to any third party without the express written agreement of the other Party provided that either Party may disclose the terms of this Payment Agreement to:
(a) any outside professional advisers;
(b) any ministry or agency of any government or other governmental authority lawfully requesting such information;
(c) any court or tribunal of competent jurisdiction acting in pursuance of its powers; and
(d) the extent required by any applicable laws or the requirements of any recognized stock exchange.
6. No modification or amendment of this Payment Agreement shall be valid unless it is in writing and signed on behalf of each Party.
7. This Payment Agreement contains the entire agreement and understanding of the Parties with respect to the subject matter thereof.
8. This Payment Agreement is governed and construed in accordance with English law. Any dispute arising out of or in connection with this Payment Agreement will be referred to the Tribunal. Should it not be possible for whatever reason to refer the dispute to the Tribunal, the dispute shall be referred to arbitration in London by three arbitrators under LMAATerms.
9. This Payment Agreement may be executed in separate counterparts each of which upon execution shall be an original but the counterparts together shall constitute one and the same instrument.
- The important obligations undertaken by the parties under the Payment Agreement comprised:
(a) A clear and unambiguous acknowledgment and admission on the part of Gujarat Coke and Mr Jagatramka that the balance of the prepayment (vizUSD8,000,000) was due and payable to Coeclerici as at 17 January 2013;
(b) A promise on the part of Gujarat Coke and Mr Jagatramka to make an additional payment of USD500,000 in consideration for the indulgence of having the arbitration suspended and being permitted to pay the total of the clause 2 amounts provided for in the Payment Agreement over time;
(c) An agreement that, provided that the full amount of USD8,500,000 was paid strictly in accordance with the payment program set out in clause 2, the payment of the clause 2 instalments would operate as a full and final discharge of all obligations on the part of Gujarat Coke and Mr Jagatramka under the Purchase Agreement and under the Guarantee. The release and discharge set out in the second part of clause 3 would be of no effect and be null and void if Gujarat Coke and Mr Jagatramka failed to pay the amounts set out in clause 2 and to do so on time;
(d) In the event that Gujarat Coke and Mr Jagatramka defaulted in their obligations under clause 2 of the Payment Agreement, the provisions of the latter half of clause 4 would be engaged with the consequence that the arbitrators would be at liberty to make the consent award contemplated by that part of that clause having regard to the fact that both Gujarat Coke and Mr Jagatramka irrevocably agreed that a consent award in the terms set out in clause 4 should be made if Coeclerici sought such an award; and
(e) The Payment Agreement was also governed by English law. In addition, disputes under the Payment Agreement were to be referred to the same arbitrators as had been designated to deal with the principal dispute under the Purchase Agreement.
- The first instalment due under the Payment Agreement was due on 1 February 2013.
- Gujarat Coke and Mr Jagatramka failed to make the first payment required under the Payment Agreement (viz the payment specified in clause 2(a) of that Agreement).
- In light of the failure of Gujarat Coke and Mr Jagatramka to make that payment, Coeclerici took steps to exercise its rights under clause 4 of the Payment Agreement.
- On 4 February 2013, the solicitor for Coeclerici sent an email to the arbitrators (with a copy to the solicitors for Gujarat Coke and Mr Jagatramka). That email was in the following terms:
We refer to our email of 17 January 2013 in which we informed the Tribunal that the parties had agreed to suspend the arbitration proceedings. Such agreement was reached as part of a Payment Agreement pursuant to which the Respondents agreed to repay the principal sums claimed to the Claimant, plus an additional US$500,000 in accordance with an agreed payment schedule. Please find attached a copy of the Payment Agreement.
Pursuant to Clause 2(a) of the Payment Agreement, the Respondents were required to pay to the Claimant the sum of US$600,000 within 15 days of the date of the Payment Agreement, i.e. by 1 February 2013. No such payment has been received by tho Claimant. Please find attached a written confirmation from the Claimant’s Managing Director of Finance and Administration to this effect as well as a bank statement confirming the same.
Pursuant to Clause 4, the parties agreed that should the Respondents fail to pay any of the sums due in accordance with the Payment Agreement, the Claimant is entitled to resume the arbitration proceedings and is entitled to an immediate consent award, without the need for any pleadings or hearings, for the following:
a) the Settlement Payments (US$8,500,000) less any sums paid after the date of the Payment Agreement;
b) all reasonable costs and expenses incurred after the date of default, including but not limited to legal costs, the costs of the Tribunal, arbitration costs and any legal or other costs and expenses incurred in enforcing the Payment Agreement and any costs and expenses incurred in obtaining such an award; and
c) interest at 7% from the date of default compounded quarterly until payment in full.
The Claimant therefore requests that the Tribunal proceed immediately to make an award in its favour on the terms set out above and we attach a suggested draft award, which we hope the Tribunal finds useful. Our client considers that this matter is urgent.
The Respondents have, in the Payment Agreement, both consented to such award being made immediately and on the terms set out in the Payment Agreement and we therefore trust that this request is uncontroversial. However, should the Tribunal have any questions or require any further information, we would of course be happy to assist.
We look forward to hearing from the Tribunal.
- On the same day, in response to the email from the solicitors for Coeclerici, Mr Moss, on behalf of the arbitrators, sent the following email (with a copy to the solicitors for Gujarat Coke and Mr Jagatramka):
May I acknowledge receipt on behalf of the tribunal of HFW’s email of 4 February.
If there is any reason why the tribunal should not now proceed as requested by the Claimant, the Respondent should make any such reason clear by close of business Tuesday 5th February at the latest.
- The next day, 5 February 2013, the solicitor for Gujarat Coke and Mr Jagatramka sent an email to the arbitrators (with a copy to the solicitor for Coeclerici). That email was in the following terms:
I have attempted to obtain instructions today.
Unfortunately, those from whom I obtain instructions have not been fully available as they have been involved in a major international conference – the tribunal will recall that I was travelling yesterday.
I will retry tomorrow.
- I pause to observe that the email to which I have referred at  above did not contain any suggestion that either Gujarat Coke or Mr Jagatramka might wish to argue that the arbitrators should not proceed to make the consent award which Coeclerici was then seeking nor did the email contain any request for an extension of time within which to make submissions or take some other step. The author simply said that he had been unable to obtain instructions but would endeavour to do so the next day (6 February 2013).
- On 6 February 2013, the solicitor for Coeclerici sent an email to the arbitrators (with a copy to the solicitor for Gujarat Coke and Mr Jagatramka). That email was in the following terms:
We refer to the Respondents’ email below and request that the Tribunal now proceed to make an award in our client’s favour.
The Respondents have continually delayed matters and have failed to identify, within the timeframe set by the Tribunal, any reasons why the Tribunal should not now proceed as per our client’s request. No payment under the Payment Agreement has been forthcoming from the Respondents and our client does not wish to wait any longer to progress the recovery of the sums owing to it.
We look forward to hearing from the Tribunal.
- On the same day (6 February 2013), Mr Moss, on behalf of the arbitrators, sent an email to the solicitors for the parties. That email was in the following terms:
I confirm on behalf of the tribunal that it is now proceeding to an Award in this matter as requested by the Claimant.
We hope to be in touch shortly with formal notice of publication of the Award.
- At the time the email extracted at  above was sent, neither the arbitrators nor the solicitor for Coeclerici had any idea that there would be opposition on the part of Gujarat Coke and Mr Jagatramka to the making of a consent award in accordance with the terms of clause 4 of the Payment Agreement. As at the time when that email was sent, no-one from Gujarat Coke’s side of things had suggested any such thing.
- On 7 February 2013, the solicitor for Gujarat Coke and Mr Jagatramka sent an email to the arbitrators (with a copy to the solicitor for Coeclerici). That email was in the following terms:
Thank you for your email today, received during my absence at a conference. However we were surprised by the suggestion that the tribunal would proceed to its award without giving our clients a reasonable opportunity to put their case.
Our clients do not consider that they are in breach of the agreement. The sum claimed by the Claimant is very substantial. In our submission the tribunal simply does not have the power to proceed to an award at present. Our clients have a right to present their case and are in breach of no peremptory order. There are real issues for the tribunal to decide.
1. Our clients accept that payment of the first payment has been delayed, however,
2. They will say that it was an implied term of the agreement that payment of the sums by the due dates was conditional upon the Reserve Bank of India granting exchange control by the due dates. We will send the tribunal under separate covert a message from the bank involved confirming the situation.
3. Unfortunately such permission is still awaited.
4. Alternatively, if, contrary to this primary contention, there is no such implied term, the respondents lacked capacity to enter into the payment agreement, such capacity being a matter of Indian law.
Our clients are, in our submission entitled to a reasonable time to properly develop the above and the tribunal will recall that the application was made in the afternoon on Monday when I was abroad and that I was unable to take instructions on Tuesday as my clients were involved in a major conference – again I will send the tribunal evidence that this was indeed the case and not as our opponents seek to characterise it (unfairly and without a jot of evidence to support the suggestion) a delaying tactic. Indeed, I very much hope that they are not suggesting that my absence travelling on Monday was anything other than genuine. I can forward the tribunal copies of my airline documentation if this is being suggested.
In the circumstances, we would invite the tribunal to confirm that they will not be proceeding to an award until our clients have had a reasonable opportunity to present their opposition, such period to take into account the need to take Indian advice on 4 above.
- I make the following observations about the contents of that email:
(a) In the first paragraph, complaint is made that the arbitrators should not proceed to make an award without giving Gujarat Coke and Mr Jagatramka a reasonable opportunity to put their case. This was the first time that anyone had suggested that there was a “case” to be put.
(b) In the second paragraph, the suggestion was made that the arbitrators had no power to proceed to make an award in terms of the consent award contemplated by clause 4 of the Payment Agreement.
(c) The arguments sought to be advanced were then set out “in outline”. Principal among those arguments was the proposition was that there was an implied term in the Payment Agreement that the obligation imposed upon Gujarat Coke and Mr Jagatramka to make the payment set out therein was conditional upon those parties obtaining approval to make the payments from the Reserve Bank of India under Indian foreign exchange control regulations. This was the first time an argument along these lines had ever been put. It is noteworthy that no such argument had ever been propounded in the arbitration commenced in August 2012 in relation to the Purchase Agreement itself. A secondary argument to the effect that Gujarat Coke and Mr Jagatramka lacked capacity to enter into the Payment Agreement was also mentioned. The basis of such a contention was not revealed. Indeed, I interpolate that this assertion fell away as matters developed.
- In the email, the solicitor for Gujarat Coke and Mr Jagatramka said on more than one occasion that the arbitrators were obliged to afford to his clients a reasonable opportunity to present their case. The author also mentioned that the arbitrators were obliged to allow those parties a reasonable opportunity to take Indian advice.
- There was no suggestion made in the email extracted at  above that Gujarat Coke and Mr Jagatramka would wish to adduce evidence before the arbitrators in support of the contentions outlined in that email. What was suggested was that those parties wished to make more detailed submissions directed to their implied term argument.
- Soon after receiving that email, the solicitor for Coeclerici sent an email to the arbitrators and to the solicitor for Gujarat Coke and Mr Jagatramka by way of response. That email was sent on 7 February 2013 and was in the following terms:
We refer to the Respondents’ email below which is a further cynical attempt to delay the Claimant’s recovery of the sum owing to it. The Respondents have failed to raise any reason why the Tribunal should not proceed as it intends to.
The Respondents rely on 2 points, both of which are groundless: i) that there was an implied term that the payment was conditional upon the Reserve Bank of India granting approval; and ii) that the Respondents lacked capacity to enter into the Payment Agreement.
Dealing with point i), if it had been anticipated that this may be an issue, the Respondents should have raised this at an earlier stage and factored the time taken in obtaining approvals into its arrangements for making payments due under the Payment Agreement. The Respondents failed to raise this until after they had already defaulted under the Payment Agreement.
Further, the Respondents have failed to identify any basis on which such a term should be implied into the Payment Agreement. Normally this would be done to give business efficacy to the agreement but we do not see how that can be argued in this case, particularly in the context of an agreement governed by English law and to be performed in Singapore. The terms of the Payment Agreement are unambiguous and require payment of the Settlement Payments in accordance with the schedule set out in clause 2, failing which the Respondents have expressly agreed that the Claimant is entitled to proceed as it has in accordance with clause 4. The only question that arises is whether the Respondents have complied with the payment schedule and, the answer to this being no, there can be no argument that the Claimant is not entitled to the relief set out in clause 4. Even if there was any legal basis on which such a terms should be implied into the Payment Agreement, which the Claimant denies, clause 7 provides that the Payment Agreement contains the entire agreement and understanding of the Parties which excludes the possibility of any implied terms. There is simply no scope for any term to be implied into the Payment Agreement as suggested by the Respondents.
As for point ii), we presume that the issue being raised is one of authority to enter the Payment Agreement. Firstly, the question of authority, if even relevant, would not be governed by Indian law. It is well established that the question of authority is to be governed by the putative law of the contract, i.e. English law.
We do not see how there can be an issue as to capacity/authority in relation to the Payment Agreement where the Respondents entered into the original contract and guarantee and where the function of the Payment Agreement is to settle debts due under those agreements. In any event, the issue of capacity/authority certainly cannot arise in relation to the guarantor as an individual.
Further, the Payment Agreement is signed by the Respondents’ solicitors. Our client is perfectly entitled to rely on this as evidence that the respondents’ solicitors were fully authorised to enter into the Payment Agreement on the Respondents’ behalf. If that is not the case, then this raises very serious issues about why the Respondents’ solicitors have signed the agreement and we suspect may have serious professional standards implications. We trust that the Respondents will carefully reconsider this assertion.
For the avoidance of doubt, we do not consider that the Respondents’ solicitors’ travel was not genuine, nor did we make any remote suggestion to this effect. However, the Respondents’ behaviour in continually and cynically delaying this matter is plain to see. The Claimant agreed to suspend the arbitration proceedings on the basis of a Payment Agreement which the Respondents are now seeking to challenge. The Claimant could easily have proceeded to the scheduled hearing and would not have had to deal with the groundless assertions put forward by the Respondent at this stage.
We are grateful for the Tribunal’s email of yesterday confirming that it is proceeding to publish an award and trust that this remains the Tribunal’s intention.
- The email which I have extracted at  above provoked a response from the solicitor for Gujarat Coke and Mr Jagatramka on 8 February 2013. 8 February 2013 was a Friday. The email from Gujarat Coke’s solicitor was in the following terms:
In response to the Claimant’s latest message.
1. They start by saying that the email that we drafted yesterday evening was a cynical attempt at delay. The Claimants have no knowledge or evidence to justify such a slur. We were tempted to respond that such allegations were cynical attempts to try to persuade the tribunal not to look at the real issues. However that would be to descend to the same level. So we will make no such suggestion but ask the tribunal to look at the issues and the facts as demonstrated and not as “spun” by the claimant.
2. The Claimant has not dealt with issue that the tribunal has no power to proceed to an award.
3. For the avoidance of doubt, although we think it was clear in any event, our email yesterday was not intended as our clients formal response as we had (and still have) not had time to prepare this. It was intended to show merely that there were real issues. The claimant has responded with some points that with all respect are spectacularly bad.
4. They say that our clients “failed to raise (the issue of exchange control) until after they had already defaulted under the Payment Agreement.” This of course is a classic circular argument. If the term that we have suggested should be implied is in fact implied, there is of course no breach.
5. They suggest that the “entire agreement” clause excludes the possibility of implied terms. This is just wishful thinking on the part of the Claimants. The law is precisely the opposite as the Court of Appeal has held in Axa Sun Life Services plc v Campbell Martin Ltd.
6. Their point in relation to capacity is no better. They say that they assume that we were making a point on authority. Where this assumption comes from escapes us. Capacity and authority are entirely different issues and we made no reference at all to questions of authority. It follows that the Claimants’ assertion that questions of authority fall to be determined by English law as the putative law of the contract misses the point. Capacity is an entirely different issue/concept.
7. It remains our submission that the tribunal should allow our clients a reasonable opportunity to make detailed submissions in defence. We invite the tribunal to so order.
In the meantime, our clients rights are reserved.
- This latest email by the solicitor for Gujarat Coke and Mr Jagatramka once again sought … “a reasonable opportunity to make detailed submissions in defence”. The solicitor did not ask for any particular period of time nor did he suggest that his clients might wish to adduce evidence before the arbitrators.
- On Monday, 11 February 2013, Mr Moss sent an email to the solicitors for each of the parties. That email was in the following terms:
I refer on behalf of the tribunal to the recent exchanges arising out of the application made on behalf of the claimants for it to proceed to an Award under the Payment Agreement.
In the light of these exchanges the tribunal would be grateful for express confirmation from HFW that their clients wish to pursue the application.
The arbitrators are in no way doubting the explanations given for to the slightly delayed response of the respondents. However, the issue seems to them to be whether it is appropriate for the respondents to be permitted to serve any submissions over and above those they have already served.
As the arbitrators see it, the Payment Agreement was a freestanding agreement made by sophisticated commercial parties who must/should have been aware of any possible complications arising from the need to obtain exchange control permission and who should therefore have made provision for any such contingency in that Agreement.
The Agreement itself appears to have been an ad hoc arrangement and not simply an aspect of the arbitration.
The respondents appear to us to be in breach of the terms of the Payment Agreement and if we are correct in that conclusion then it seems to us that the claimants are entitled to the award which they now seek.
We intend therefore to proceed to such an Award if we receive confirmation from the claimants that they wish us to do so.
- It is apparent from the contents of the email extracted at  above that, by 11 February 2013, the arbitrators had considered the arguments advanced by the solicitor for Gujarat Coke and Mr Jagatramka in his emails of 7 February 2013 and 8 February 2013 but had come to the view that the arguments sought to be raised had no prospects of success. There was no point having those arguments presented in more detail.
- Later the same day (11 February 2013), the solicitor for Coeclerici confirmed to the arbitrators that his client wished the arbitrators to proceed to make an award in terms of the consent award contemplated by clause 4 of the Payment Agreement.
- Undaunted, the solicitor for Gujarat Coke and Mr Jagatramka entered the fray once more. He did so later on the same day (11 February 2013). He sent an email in the following terms to the arbitrators (with a copy to the solicitors for Coeclerici):
We thank the tribunal for its email yesterday evening.
With the greatest respect, the tribunal cannot come to a definitive conclusion that our clients are in breach of the terms of the Payment Agreement in circumstances where our clients have not been given an opportunity to develop their arguments why they are not. We urge the tribunal to reconsider its decision and must reserve our client’s position.
- It is noteworthy that, once again, no request was made for an opportunity to tender evidence before the arbitrators nor was any request made for the arbitrators to defer their consideration of the matter for any particular time. The author did not say how long his clients required to put themselves in a position to present fully developed arguments to the arbitrators.
- The arbitrators did not make their award on either of the next two days (12 February 2013 and 13 February 2013).
- On 13 February 2013, Mr Moss, on behalf of the arbitrators, sent an email in the following terms to the solicitors for the parties:
I refer on behalf of the Tribunal to Bentleys’ email of 11th February.
As previously indicated, we are now proceeding to our Award. We must make it clear that in deciding to follow this course, we have not simply ignored the protests registered by Bentleys on behalf of the Respondents. We have considered these carefully. However, we are satisfied that if the respondents were allowed additional time to substantiate the reasons which Bentleys have given as to why we should not proceed to an Award, the Payment Agreement itself and the circumstances in which it was concluded would still lead us inexorably to conclude that the Claimants are entitled to the Award that they seek.
- The final award was made on 14 February 2013. It was available to the parties late in the day on 14 February 2013.
- The respondents tendered evidence proving the terms of the relevant Indian exchange control regulations and also tendered evidence of their attempts to procure approval for the remission of the balance of the refund of the original prepayment which was then due from Gujarat Coke and Mr Jagatramka to Coeclerici. I do not need to traverse that material in detail. This is because, by letter dated 10 July 2013, the Reserve Bank of India gave approval to Gujarat Coke to remit the balance of the prepayment (vizUSD8,000,000) together with liquidated damages in the amount of USD750,000. The permission required the transfer of funds to take place by 31 October 2013.At the hearing, the respondents did not explain why they had not remitted the amount of USD8,500,000. The only sensible inference is that they are unable or unwilling to do so. Certainly, until 31 October 2013, there is no regulatory impediment in the way of the transfer.
- The evidence also disclosed that, as at 2 August 2013, Gujarat Coke was apparently taking steps to remit USD200,000 to Coeclerici on account of its obligation to repay the balance of the prepayment plus damages. The evidence did not establish that that amount had, in fact, been remitted.
THE ENGLISH JUDGMENT
- As I mentioned at  above, Gujarat Coke and Mr Jagatramka applied to the English High Court of Justice seeking to set aside the Award. On 10 July 2013, that Court dismissed that application with costs. It also dismissed a defensive application made by Coeclerici for clarification of the Award. Coeclerici’s application did not need to be pressed in light of the fact that the Court had decided to dismiss the application made by Gujarat Coke and Mr Jagatramka.
- The case is reported as Gujarat NRE Coke Limited and Anor v Coeclerici Asia (Pte) Ltd  EWHC 1987 (Comm). The decision was a decision of Judge Mackie QC.
- It is apparent from the Reasons for Judgment delivered by Judge Mackie QC that the application made by Gujarat Coke and Mr Jagatramka was made pursuant to s 68(2)(a) and (c) of The Arbitration Act 1996 (UK). That section relevantly provides that the court may set aside an award if it was infected by“serious irregularity”. One way in which serious irregularity within the meaning of s 68 of the UK Act can be established is if one of the parties has been denied a reasonable opportunity of putting his or her case. Section 68(2)(a) specifies as a ground for setting aside an English award “… the failure by the tribunal to comply with s 33”. Section 33(1)(a) provides that the tribunal must act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and of dealing with that of his opponent.
- Despite the slightly different statutory framework, it is perfectly plain that Gujarat Coke and Mr Jagatramka argued before the English High Court of Justice that the Award was infected by serious irregularity because they had not been given a reasonable opportunity of putting their case. They relied upon the same facts and circumstances in support of that case as they relied on in support of their opposition to enforcement before me.
- At – of his Reasons for Judgment, his Lordship said:
Serious irregularity- Decision
22. If the Tribunal had been considering a new case in which NRE sought to put forward its defences to a claim then the procedure adopted would of course have been irregular and unfair. But that is not this case. NRE, guaranteed by Mr Jagatramka, entered into a contract with Coeclerici, obtained a prepayment of $10 million, broke the contract and also failed to repay the $10 million. Facing an imminent arbitration hearing NRE entered into another contract, the Payment Agreement, and then again failed to pay the money it had promised to pay. In the Payment Agreement “NRE and the Guarantor expressly and irrevocably agree that Coeclerici will be entitled to an immediate consent award, without the need for any pleadings or hearings”.
23. Upon failing to make the payment NRE and the Guarantor came under an immediate obligation to consent to the issue of an award. Both failed to comply with that obligation too. The proper construction of this default provision is obvious and is also informed by the general principles in Section 1 of the Act. This explicit provision to enforce a promise in the event of further default did not, as the Claimants now contend, entitle them to put forward and then develop, on their case at great further expense and delay, new defences as though they were in the early stages of a legal process. Neither is there any arguable breach of Section 33. It is correct that the parties cannot contract out of Section 33 but they did not seek to do so. That duty is owed to both parties, not just the Claimants, and operates in context. Given what the parties had agreed in the Payment Agreement, the Tribunal gave them a reasonable opportunity of putting their case and adopted a suitable procedure.
24. For similar reasons there is no breach of any LMAA rules, particularly when these are read as a whole.
25. That is the context in which the Tribunal had to approach its task. In my judgment the approach of the Tribunal was neither irregular nor unfair, in fact it was impeccable. But that is not the test. The Court has to ask itself the questions summarised in terms which in essence boil down to this. Is this an extreme case which justifies the court’s intervention? Has the tribunal gone so wrong in its conduct of the arbitration, and is its conduct so far removed from what could be reasonably be expected from the arbitral process, that justice calls out for it to be corrected?
26. The answer is certainly not. So the Claimants’ claim fails.
27. The question of substantial injustice does not arise unless the Claimants establish the requisite irregularity. It is therefore unnecessary for me to consider the arguments about substantial injustice but, these having being argued briefly, I will do so.
- At – of his Reasons, Judge Mackie QC then dealt with the question of substantial injustice. This part of his Lordship’s Reasons was obiter. However, in the course of dealing with that matter, his Lordship made perfectly clear that he was of the view that the implied term argument sought to be raised by Gujarat Coke and Mr Jagatramka was devoid of merit under English law. He was also of the view that Gujarat Coke and Mr Jagatramka had repeatedly, deplorably and without justification failed to pay money which was plainly due to Coeclerici. At , his Lordship said:
Mr Quirk’s skeleton does not engage with the issue of implied term but in oral submission his response was concise and as I see it entirely right. Despite the assertions in the Guarantor’s witness statement it is fanciful to suggest that both parties to an obligation to make a payment of US$ in Singapore, in the context of international trade, would implicitly agree to make it conditional on the vagaries of Indian exchange control. The Defendant would obviously never have agreed to that. That is the position regardless of the Indian Exchange Control implications of the original contract which preceded the Payment Agreement.
- The essence of each of ground 1 and ground 2 relied upon by Gujarat Coke and Mr Jagatramka as the foundation for their opposition to enforcement of the Award is the same. The complaint is that, in the circumstances of the present case, Gujarat Coke and Mr Jagatramka were not given a reasonable opportunity to present their case before the arbitrators made the Award on 14 February 2013. Whether they were given such an opportunity or not is a question of fact to be decided in all of the circumstances of the case. One relevant circumstance in the present case is the fact that the matter was being dealt with by way of arbitration. In England, under The Arbitration Act 1996 and the LMAA rules, speed, efficiency and a minimum of formality are required to be brought to bear on disputes which have been submitted to arbitration.
- It was submitted on behalf of Gujarat Coke and Mr Jagatramka that the arbitrators had proceeded as if they were under no duty to afford to the respondents a reasonable opportunity to present their case in relation to the application made by Coeclerici for a consent award pursuant to clause 4 of the Payment Agreement. It was also submitted that the arbitrators had no power to ignore or override the requirements in the UK Act which, so it was said, required them to go through a process of making directions designed to ready the arbitration for hearing.
- The context in which the exchange of emails commencing on 4 February 2013 took place is important in assessing whether a reasonable opportunity was afforded to Gujarat Coke and Mr Jagatramka to present their case. The following matters of context are significant:
(a) The Purchase Agreement contained no express reference to the need for the Indian parties to obtain foreign exchange control approval from the Reserve Bank of India in the event that the prepayment contemplated by that contract had to be refunded.
(b) Gujarat Coke and Mr Jagatramka never suggested in the pleadings and submissions filed on their behalf in the arbitration proper prior to 17 January 2013, when the Payment Agreement was entered into, that there was an implied term in the Purchase Agreement to the effect that they were not obliged to refund the prepayment unless and until the approval of the Reserve Bank of India to such refund was obtained. The first time that the implied term argument was raised was in the email from the respondents’ English solicitor sent on 7 February 2013.
(c) Plainly, Coeclerici had a strong case in the arbitration even before the Payment Agreement was entered into.
- Gujarat Coke is apparently a substantial corporation with business activities around the world. Mr Jagatramka appears to be a sophisticated businessman. Gujarat Coke and Mr Jagatramka entered into the Payment Agreement on terms which required them to concede liability for the full amount of USD8,500,000 as part of the quid pro quo which they had to give for the indulgence granted to them of time to pay. At no stage in this saga was there ever any suggestion prior to the exchange of emails in February 2013 that the obligation on Gujarat Coke to refund the balance of the prepayment in the circumstances of the present case was somehow contingent upon obtaining the approval of the Reserve Bank of India.
- It is in this context that the email exchanges must be viewed.
- Mr Jagatramka gave evidence that he and other executives of Gujarat Coke were engaged in marketing conferences in the period from 4 February 2013 to 6 February 2013. It seemed to be suggested that, because of those commitments, they were unable to provide instructions to their solicitor on any of those days. But there is no explanation whatsoever as to why Mr Jagatramka and, if necessary, other executives of Gujarat Coke, were not able to obtain appropriate advice on the days which followed (7 February 2013 to 14 February 2013) and to give instructions to their English solicitor based upon that advice. Indeed, it is clear that, by 7 February 2013, instructions had been provided to their English solicitor because the relevant arguments were outlined in his email to the arbitrators sent early in the morning on 7 February 2013.
- It must be remembered that throughout the email exchange the only request being made was for an opportunity to put submissions. It was never suggested that there was a need for Gujarat Coke and Mr Jagatramka to place evidence before the arbitrators.
- The arbitrators never said that they would not receive any submissions that Gujarat Coke and Mr Jagatramka might care to place before them. True it was that they indicated a fairly strong view about the merits of the arguments which had been outlined to them. Nonetheless, they never said that they would not receive any submissions which Gujarat Coke and Mr Jagatramka might care to make. All that was communicated was an intention to proceed to make an Award in the terms contemplated by clause 4 of the Payment Agreement.
- Accepting for the moment that Gujarat Coke and Mr Jagatramka were unable to address the matter on any of the first three days of the week commencing 4 February 2013, they had more than ample time thereafter to do so before the Award was delivered on 14 February 2013. They had more than five working days plus a weekend in which to take advice and put forward such submissions as they considered appropriate. The matter was obviously urgent. I do not accept that detailed submissions could not have been prepared by 8 February 2013 or, at the very latest, 11 February 2013. Instead of attending to prepare such submissions, the solicitor for Gujarat Coke and Mr Jagatramka engaged in email exchanges which did not progress the matter at all. I cannot help but think that Gujarat Coke and Mr Jagatramka had nothing to add to the arguments which had been outlined in their solicitor’s email of 7 February 2013 and were simply endeavouring to manufacture a ground for endeavouring to set aside the Award in due course or to resist its enforcement overseas, in due course, should that become necessary.
- I find that Gujarat Coke and Mr Jagatramka had ample opportunity and more than a reasonable opportunity in which to put their case before the arbitrators. Grounds 1 and 2 therefore both fail. There is no need for me to consider issue (c) set out at  above.
- In any event, I consider that the question of whether Gujarat Coke and Mr Jagatramka had a reasonable opportunity to present their case in the arbitration was decided by Judge Mackie QC in the English High Court of Justice as a necessary part—indeed, a fundamental part—of the reasoning which his Lordship employed in declining to set aside the Award upon the application of Gujarat Coke and Mr Jagatramka. Issue estoppel is capable of application when the issue has been determined in a prior judgment of a foreign court (Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573 at 580–583 –). Here, Gujarat Coke and Mr Jagatramka both argued in the English High Court of Justice that they had been denied a reasonable opportunity to present their case to the arbitrators in answer to Coeclerici’s claim to have a consent award made as agreed in the Payment Agreement (clause 4). They submitted to that Court that they were shut out on 4 February 2013 by the arbitrators from making submissions in support of their opposition to the making of such an award. They also said that, thereafter, they were not afforded a reasonable opportunity to put their case. This last proposition was based upon the very same emails as were tendered before me in support of grounds 1 and 2 of the respondents’ Amended Notice of Grounds of Opposition. Judge Mackie QC rejected all of these contentions. The issue has been determined by the English High Court of Justice and cannot be re-litigated here. There is an issue estoppel. The matter is probably also res judicata.
- The English High Court of Justice is the court of the seat of the arbitration. Under the Convention and the IAA, any application to set aside the Award must be made in that Court. Even if there were no issue estoppel or res judicata, it would generally be inappropriate for this Court, being the enforcement court of a Convention country, to reach a different conclusion on the same question as that reached by the court of the seat of the arbitration. It would be a rare case where such an outcome would be considered appropriate.
- For the above reasons, I was of the opinionon 5 August 2013, at the conclusion of the hearing before me that the respondents had failed to make out either of the grounds upon which they relied in opposition to the enforcement of the Award.
- The only contentious aspect of the relief sought concerned the application by Coeclerici that I should appoint receivers to take control of and sell the relevant shares.
- There is no doubt, I think, that the Court has power to appoint a receiver in aid of enforcement (as to which see University of Western Australia v Gray (No 6)  FCA 1825 per French J (as his Honour then was)) including in aid of enforcement of a foreign award (see Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2)(2012) 201 FCR 535 at 553 ).
- Senior Counsel appearing for Gujarat Coke and Mr Jagatramka mounted a spirited argument that because the enforcement processes available to litigants in this Court must follow those of the Supreme Court of the State where the litigation is taking place, I should follow the jurisprudence of the Supreme Court of New South Wales in relation to the principles upon which receivers might be appointed in aid of enforcing a judgment. Senior Counsel did not take issue with the proposition that I had power to appoint receivers (as to which, see s 57 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act))but did submit that the present case was not within those categories of cases where it was appropriate to do so. Senior Counsel relied upon [28-090]–[28-125] ofEquity Doctrines and Remedies(4th edn, Butterworths LexisNexis, 2002) by Meagher, Heydon and Leeming and the cases referred to therein in support of the proposition that the Court should not appoint a receiver in aid of the enforcement of a judgment unless it can be shown that all available legal remedies have been tried and failed or the pursuit of such remedies would be futile.
- I do not think that the true principle is so rigid. It seems to me that the Court may appoint receivers in aid of enforcement of a judgment at law if it can be shown that other methods of execution would be inadequate or extremely inconvenient. The guiding principle should be: What is just and convenient in all the circumstances of the case? This was the language of s 67 of the Supreme Court Act 1970(NSW) and is the language of s 57(1) of the Federal Court Act.
- In the present case, the enforcement alternatives available to the Court seemed to be to make a charging order or to appoint receivers. A charging order would require further steps under the supervision of the Court if the relevant shares are to be sold in order to satisfy the judgment which I ordered on 7 August 2013. The appointment of receivers, on the other hand, is a convenient (and probably the most convenient) way of expeditiously effecting the sale of the relevant shares in aid of the judgment. In the end, it is likely to be less costly than proceeding down the charging order path.
- In DM and DB Wiskich Pty Ltd v Joseph Saadi(Supreme Court of New South Wales, 16 February 1996, unreported), Bryson J held that, although from time to time equitable remedies were given to enable judgments at law to be enforced in circumstances where the remedies available under the Common Law were inadequate, the deployment of such remedies was not confined to or conditional upon establishing that the legal remedies were inadequate. From time to time, those remedies were used in cases where no attempt had been made to engage legal enforcement remedies. In DM and DB Wiskich Pty Ltd v Joseph Saadi, Bryson J considered all of the relevant circumstances in order to determine whether the appointment of a receiver was just and convenient within the meaning of that expression in s 67 of the Supreme Court Act 1970 (NSW).
- I took the view that that is the test which should be adopted in the present case. After all, the present case is really one where Gujarat Coke and Mr Jagatramka are not only to be subjected to enforcement of the Award but have been found by the English High Court of Justice to have no defence of any substance to the claims of Coeclerici. I do not think that this Court should take an unduly technical view of the principles which might govern the appointment of a receiver in aid of enforcement of a judgment in a case such as the present.
- On 7 August 2013, I granted a stay of the receivership orders (and only those orders) which I made on that day. I granted that stay in order to afford to Gujarat Coke and Mr Jagatramka an opportunity to pay the Award debt. It had been suggested to me from the Bar table that Gujarat Coke was in the throes of procuring substantial refinancing and that some of the refinancing funds could be used to pay out Coeclerici. I did not grant the stay in order to protect the position of Gujarat Coke and Mr Jagatramka while they considered their rights of appeal. In particular, I would not want it thought that I granted the stay with a view to having the enforcement of the judgment which I directed be entered stayed while Gujarat Coke and Mr Jagatramka pursued their appeal rights. Had I been asked to grant a stay on that basis, I would have refused to do so. I would have refused to do so because I consider the case for resisting enforcement of the Award propounded before me by Gujarat Coke and Mr Jagatramka as utterly unmeritorious.
- I decided to continue the Freezing Orders which I made on 14 March 2013 for the time being in aid of Coeclerici’s right to enforce its judgment and order for costs (see Stewart Chartering Ltd v C & O Managements SA  1 All ER 718;  1 WLR 460; Orwell Steel (Erection & Fabrication) Ltd v Asphalt & Tarmac (UK) Ltd  3 All ER 747;  1 WLR 1097; DistributoriAutomatici Italia SpA v Holford General Trading Co  3 All ER 750;  1 WLR 1066; Ling v Enrobook Pty Ltd (1997) 74 FCR 19 at 29; and Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 452 per Gaudron, Gummow and Callinan JJ; at 459  per McHugh J; and at 482  per Kirby J).
- In similar vein, Gujarat Coke and GNL continued the undertakings given to the Court on 28 May 2013 until further order.
- These measures were taken in order to protect Coeclerici’s legitimate entitlement to practical enforcement of its money judgment and order for costs.
- For the reasons which I have now explained, I granted the relief embodied in the orders which I made on 7 August 2013.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.