Gujarat NRE Coke Limited v Coeclerici Asia (Pte) Ltd [2013] FCAFC 109

Gujarat NRE Coke Limited v Coeclerici Asia (Pte) Ltd [2013] FCAFC 109

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FEDERAL COURT OF AUSTRALIA

 

Gujarat NRE Coke Limited v Coeclerici Asia (Pte) Ltd [2013] FCAFC 109

 

Citation:Gujarat NRE Coke Limited v Coeclerici Asia (Pte) Ltd [2013] FCAFC 109
Appeal from:Coeclerici Asia (Pte) Ltd v Gujarat NRE Coke Limited [2013] FCA 882
Parties:GUJARAT NRE COKE LIMITED and ARUN KUMAR JAGATRAMKA v COECLERICI ASIA (PTE) LTD
File number(s):NSD 1673 of 2013
Judge(s):ALLSOP CJ, BESANKO & MIDDLETON JJ
Date of judgment:30 September 2013
Catchwords:

ARBITRATION – international arbitration – enforcement of award – whether procedural unfairness – whether party given reasonable opportunity to make submissions – where supervisory court rejected attempt to set aside award – weight to be given to views of supervising court

ARBITRATION – international arbitration – appointment of receiver – whether trial judge’s discretion appropriately exercised

Legislation:Arbitration Act 1996 (UK) ss 33, 68
International Arbitration Act 1974 (Cth), s 8(7)(b), (7A)
Cases cited:Armacel Pty Ltd v Smurfit Stone Container Corp [2008] FCA 592; 248 ALR 573
Blair v Curran [1939] HCA 23; 62 CLR 464
Con-Stan Industries of Australia Pty Limited v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; 160 CLR 226
Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2010] UKSC 46; [2011] 1 AC 763
Gujarat NRE Coke Limited v Coeclerici Asia (Pte) Limited [2013] EWHC 1987 (Comm)
IMC Aviation Solutions Pty Ltd v Altain Khuder LLC [2011] VSCA 248; 282 ALR 717
Karaha Bodas Co LLC v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara[2003] 380 HKCU 1
Minmetals Germany GmbH v Ferco Steel Ltd [1999] 1 All ER (Comm) 315
Ralli Brothers v Compania Naviera Sota y Aznar [1920] 2 KB 287
Sagar v H Ridehalgh & Son Ltd [1931] 1 Ch 310
Terna Bahrain Holding Company WLL v Al Shamsi [2012] EWHC 3283 (Comm)
The Moorcock (1889) 14 PD 64
Date of hearing:23 September 2013
Place:Sydney
Division:GENERAL DIVISION
Category:Catchwords
Number of paragraphs:84

 

 

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1673 of 2013

 

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:

GUJARAT NRE COKE LIMITED
First Appellant

 

ARUN KUMAR JAGATRAMKA
Second Appellant

 

AND:

COECLERICI ASIA (PTE) LTD
Respondent

 

 

JUDGES:

ALLSOP CJ, BESANKO & MIDDLETON JJ

DATE OF ORDER:

30 SEPTEMBER 2013

WHERE MADE:

SYDNEY

 

THE COURT ORDERS THAT:

 

1.           The appeal be dismissed with costs.

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 WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1673 of 2013

 

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:

GUJARAT NRE COKE LIMITED
First Appellant

 

ARUN KUMAR JAGATRAMKA
Second Appellant

 

AND:

COECLERICI ASIA (PTE) LTD
Respondent

 

 

JUDGES:

ALLSOP CJ, BESANKO & MIDDLETON JJ

DATE:

30 SEPTEMBER 2013

PLACE:

SYDNEY

 

REASONS FOR JUDGMENT

THE COURT

  1. On 7 August 2013, the Court (Foster J) made a declaration and orders recognising and enforcing an award of three London arbitrators (Messrs Hamsher, Martin-Clark and Moss) in favour of the respondent to the appeal, Coeclerici Asia (Pte) Ltd (to which we will refer as Coeclerici), against the appellants, Gujarat NRE Coke Limited (to which we will refer as Gujarat Coke), and Mr Shri Arun Kumar Jagatramka, for USD 8,804,336.42 and GBP 12,232.85 and ordering the appointment of receivers of shares held by the appellants in Australia: see Coeclerici Asia (Pte) Ltd v Gujarat NRE Coke Ltd [2013] FCA 882.  The appellants appeal against that declaration and those orders.
  2. The essence of the complaints of Gujarat Coke and Mr Jagatramka on appeal was that the primary judge erred in not concluding that they had been denied procedural fairness by the arbitrators.  Thus, they submitted, the award should not have been enforced under the International Arbitration Act 1974(Cth) because of the engagement of s 8(5)(c) and of s 8(7)(b) and (7A), in substance because of a denial by the arbitrators of natural justice in connection with the making of the award.  The primary judge comprehensively set out the statutory provisions.  It is unnecessary for us to do so.
  3. For the following reasons, the appeal should be dismissed with costs.  The arbitrators did not deny the appellants procedural fairness and so did not breach the rules of natural justice, and the appellants were able to present their case because they were given a reasonable opportunity, in all the circumstances, to present their case.
  4. The seat of the arbitration was London; the governing law was English, as was the lex arbitri.  There was no suggestion in the submissions of the parties that there was any relevant difference between the rules of natural justice under English law and under the common law of Australia.

    The facts

  5. By an agreement dated 15 September 2011 (the Purchase Agreement), Coeclerici agreed to buy 40,000 metric tonnes of metallurgical coke, plus or minus 10%, from Gujurat Coke.  Clause 10 of the Purchase Agreement provided for the prepayment of the purchase price of USD 10m to Gujarat Coke’s designated bank account in India.  This payment was made on 23 September 2011.  The Purchase Agreement provided for the return of such prepayment, and for liquidated damages of USD 750,000 if Gujarat Coke failed to perform its obligations.  The Purchase Agreement was governed by, and to be construed in accordance with, the laws of England, with the specific exception of one statute.  There was an arbitration clause submitting disputes to arbitration in London by three arbitrators under London Maritime Arbitration Association (LMAA) terms.  Mr Jagatramka guaranteed Gujarat Coke’s payment obligations under the agreement.
  6. Coeclerici and Gujarat Coke could not agree on a purchase price under the regime provided for by the Purchase Agreement.  No coal was delivered by Gujarat Coke.  Coeclerici requested the refund of its USD 10m.  It also claimed liquidated damages.  Gujarat Coke made two payments, each of USD 1m, on 12 June 2012 and 29 August 2012.
  7. On 17 August 2012, Coeclerici commenced arbitration proceedings seeking to recover the balance of the prepayment, and liquidated damages.
  8. The LMAA terms provided for the procedural authority of the arbitrators in cl 12, as follows:

    (a)       It shall be for the tribunal to decide all procedural and evidential matters, but the tribunal will where appropriate have regard to any agreement reached by the parties on such matters.  The normal procedure to be adopted is set out in the Second Schedule, subject to the tribunal having power at any time to vary that procedure.

    (b)      In the absence of agreement it shall be for the tribunal to decide whether and to what extent there should be oral or written evidence or submissions in the arbitration.  The parties should however attempt to agree at an early stage whether the arbitration is to be on documents alone (i.e. without any oral hearing) or whether there is to be such a hearing.

  9. The Second Schedule provided in cl 1 that the normal procedure required service of submissions by each party setting out the issues and supported by relevant documentation.  The Second Schedule also provided for the filling out of a questionnaire in the Third Schedule that dealt with matters such as identification of issues and evidence.
  10. On 1 October 2012, Coeclerici’s solicitors, Holman Fenwick Willan (HFW), delivered claim submissions.
  11. On 30 November 2012, Gujarat Coke filed its defence submissions.  Relevantly (that is, leaving aside any debate about which party was in breach of contract and any related question of whether Coeclerici was entitled to liquidated damages) the only matters put by way of defence to the claim for the repayment of the outstanding USD 8m were:

    (a)          an assertion that the agreement reached between the parties always envisaged that repayments would be dependent upon the sale of stocks of coke; and

    (b)       a denial of the jurisdiction of the arbitrators to deal with the dispute.

  12. The arbitration was scheduled to commence on Monday, 21 January 2013.  On the Thursday prior to the day of the arbitration, 17 January 2013, the three parties entered another agreement (the Payment Agreement), under which the arbitration was suspended to afford Gujarat Coke and Mr Jagatramka an opportunity to repay the outstanding money.  The terms of this agreement are important.  Under clause 1, Gujarat Coke and Mr Jagatramka unequivocally admitted liability for the residue of the prepayment of USD 8m in the following terms:

    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.

    Also by cl 1, Gujarat Coke and Mr Jagatramka agreed to pay Coeclerici a further
    USD 500,000 as consideration for the suspension of the arbitration.

  13. Clause 2 of the Payment Agreement provided for payments of USD 600,000,
    USD 3m and USD 4.9m to be made within 15 days of the Payment Agreement, on 28 February and on 28 March 2013, respectively.  Payment was to be made to Coeclerici’s nominated bank account in Singapore.
  14. Clause 3 provided for the settlement of the arbitration proceedings, as follows:

    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.

  15. Clause 4 provided for the consequences of default of the Payment Agreement:

    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.

  16. There was an entire agreement clause (cl 7).  Clause 8 provided:

    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 LMAA Terms.

  17. Gujarat Coke and Mr Jagatramka failed to pay the first payment of USD 600,000 on or before 1 February 2013.  The first of February was a Friday.  The appellants and any legal advisers must have been aware on, and indeed before, 1 February that any non-payment would have to be justified promptly given the clear and final terms of cl 4.  On the Monday, 4 February 2013, Coeclerici took steps to exercise its rights under cl 4.  This must have come as no surprise to anyone.  HFW sent an email to the arbitrators, with a copy to the solicitors for Gujarat Coke and Mr Jagatramka, 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 the 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 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.

  18. On that day, 4 February, the arbitrators, through Mr Moss, sent an email to the solicitors for the parties, acknowledging HFW’s earlier email, and stating:

    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.

  19. On the following day, 5 February, the solicitors for the appellants (Bentleys) sent an email to the arbitrators that said only the following:

    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.

  20. On the following day, 6 February, HFW sent an email to the arbitrators, copies to the solicitors for the appellants, 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 form the Tribunal.

  21. On the same day, 6 February, the arbitrators (through Mr Moss) sent an email to the parties, as follows:

    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.

  22. It barely needs repeating, but at this time: (a) the appellants had not repaid a prepayment, from 17 January 2013 unequivocally admitted as repayable; (b) the appellants had not paid a sum of USD 600,000 apparently due under a recent document entered into to settle the arbitration proceedings; and (c) this was in circumstances where no apparently valid defence to either the primary claim or the payment under the agreement to settle had been articulated.  In these circumstances, the lack of “full” availability of the solicitors’ clients at a “major international conference” was no basis whatsoever for the arbitrators to contemplate any step other than that contained in their email of 6 February set out at [21] above.
  23. On the next day, Thursday, 7 February, Bentleys sent an email to the arbitrators 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.

    In outline,

    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 cover 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.

  24. The first paragraph expressed surprise at the approach of the arbitrators.  For the reasons earlier expressed, the conduct of the arbitrators was entirely understandable, and not surprising.  The balance of the letter put forward two reasons in the alternative for a conclusion that the appellants were not in breach of the Payment Agreement notwithstanding an admitted failure to pay the first payment of USD 600,000 in accordance with the express terms of cl 2:

    (a)       the implied term expressed in para 2; and
    (b)       in the alternative, a lack of capacity.

  25. Not long after receiving Bentleys’ email, HFW responded with an email refuting the legitimacy of the asserted reasons for a lack of breach of the Payment Agreement 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 term 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.

  26. Bentleys responded the next day, Friday, 8 February 2013 as follows:

    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.

  27. The paragraph numbered 7 in this last email requested a reasonable opportunity to put “detailed submissions”.  What is to be recalled is that they had had the whole week to explain why their clients’ failure to pay the sum identified in cl 2 of the Payment Agreement was not a breach of contract that, on its face, it appeared to be.  Further, it must have been apparent the previous week (at least to the appellants) that if payment could not be made on Friday (1 February) their position would have to be justified, and promptly.
  28. On Monday, 11 February 2013, by which time the appellants and Bentleys had had three more days (Friday, 8 February to Sunday, 10 February) to formulate submissions explicating the nature of the implied term and the lack of capacity enunciated on 7 February, Mr Moss, on behalf of the arbitrators, sent the following email:

    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.

  29. As the primary judge said in [77] of his reasons:

    It is apparent from the contents of the email extracted … 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.

  30. Later in the day on 11 February, HFW confirmed that they wished the arbitrators to proceed to make the award.  Later still on the same day, Bentleys sent the following email:

    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.

  31. The primary judge commented on this email as follows at [80] of his reasons:

    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.

  32. Two days later, on Wednesday, 13 February 2013, the arbitrators sent an email in the following terms:

    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.

  33. The award was made on 14 February 2013.
  34. The appellants sought to set aside the award in the High Court of Justice in London.  Their application was heard on 1 July and dismissed on 10 July 2013 by Judge Mackie QC: Gujarat NRE Coke Limited v Coeclerici Asia (Pte) Limited [2013] EWHC 1987 (Comm).  The reasons of the learned judge are important, as is their statutory context.
  35. Under s 68(1) of the Arbitration Act 1996 (UK) a party to an arbitral proceeding may apply to the Court to challenge an award on the ground of “serious irregularity affecting the tribunal, the proceedings or the award”.  Section 68(2) defines “serious irregularity” by reference to listed kinds of irregularity “which the court considers has caused or will cause substantial injustice”.  One of those kinds of irregularity (s 68(2)(a)) is a failure by the tribunal to comply with s 33 of the same Act; another (s 68(2)(c)) is the failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by the parties.
  36. Under s 33(1), the tribunal was required:

    [to] act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent.

  37. There was no contest before Judge Mackie QC about the relevant governing principle that was set out in [18] of his reasons, drawn from Terna Bahrain Holding Company WLL v Al Shamsi [2012] EWHC 3283 (Comm) in which case Popplewell J (drawing upon a number of authorities) at [85] said:

    85.      I was referred to a number of authorities. These included Interbulk Limited v Aiden Shipping Co Limited (The “Vimeira”) [1984] 2 Lloyd’s Rep. 66; Zermalt Holdings SA v NU-Life Upholstery Repairs Limited  [1985] 2 EGLR 14;  Minmetals Germany GmbH v Ferco Steel Ltd [1999] 1 All ER (Comm) 315; Westland Helicopters v Sheik Salah Al-Hejailan [2004] 2 Lloyd’s Rep 523; Cameroon Airlines v Transnet Ltd [2004] EWHC 1829 (Comm); Vee Networks Limited v Econet Wireless International Limited [2005] 1 Lloyd’s Rep.192;  ABB AG vHochtief Airport GmbH [2006] 1 All ER (Comm) 529; Lesotho Highlands Development Authority v Impregilo[2006] 1 AC 221; London Underground Ltd v Citylink Telecommunications Limited [2007] 2 All ER (Comm) 694; and Bandwidth Shipping Corporation v Intaari (“The Magdalena Oldendorff”) [2008] 1 Lloyd’s Rep. 7. They establish the following principles so far as relevant to the present application:

    (1)      In order to make out a case for the Court’s intervention under s. 68(2)(a), the applicant must show:
    (a)       a breach of s. 33 of the Act; i.e. that the tribunal has failed to act fairly and impartially between the parties, giving each a reasonable opportunity of putting his case and dealing with that of his opponent, adopting procedures so as to provide a fair means for the resolution of the matters falling to be determined;
    (b)      amounting to a serious irregularity;
    (c)       giving rise to substantial injustice

    (2)      The test of a serious irregularity giving rise to substantial injustice involves a high threshold. The threshold is deliberately high because a major purpose of the 1996 Act was to reduce drastically the extent of intervention by the courts in the arbitral process.

    (3)      A balance has to be drawn between the need for finality of the award and the need to protect parties against the unfair conduct of the arbitration. In striking this balance, only an extreme case will justify the Court’s intervention. Relief under s. 68 will only be appropriate where the tribunal has gone so wrong in its conduct of the arbitration, and where its conduct is so far removed from what could be reasonably be expected from the arbitral process, that justice calls out for it to be corrected.

    (4)      There will generally be a breach of s.33 where a tribunal decides the case on the basis of a point which one party has not had a fair opportunity to deal with. If the tribunal thinks that the parties have missed the real point, which has not been raised as an issue, it must warn the parties and give them an opportunity to address the point.

    (5)      There is, however, an important distinction between, on the one hand, a party having no opportunity to address a point, or his opponent’s case, and, on the other hand, a party failing to recognise or take the opportunity which exists. The latter will not involve a breach of s. 33 or a serious irregularity.

    (6)      The requirement of substantial injustice is additional to that of a serious irregularity, and the applicant must establish both.

    (7)       In determining whether there has been substantial injustice, the Court is not required to decide for itself what would have happened in the arbitration had there been no irregularity. The applicant does not need to show that the result would necessarily or even probably have been different. What the applicant is required to show is that had he had an opportunity to address the point, the tribunal might well have reached a different view and produced a significantly different outcome.

  38. Thus, as the respondent to this appeal submitted and as is more fully discussed below, an essential enquiry by the supervising court of the seat of the arbitration was whether the arbitrators had failed to give Gujarat Coke and Mr Jagatramka a reasonable opportunity to put their case as to why they were not in breach of the Payment Agreement.  At [22]-[27] of his reasons, Judge Mackie QC explained why a reasonable opportunity had been given, saying the following:

    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.

  39. Later in his reasons, Judge Mackie QC dealt with what the appellants claimed they had been deprived of.  It is appropriate to set out Judge Mackie’s treatment of this question as the appellant submitted that he had erred in the way he dealt with the implied term argument. At [28]-[35], he said the following:

    28.      The Claimants contend that if the Tribunal had allowed NRE and the Guarantor a reasonable time in which to present their written submissions, it, at the very least, might well have come to a significantly different decision.

    29.      The Claimants say that the “principal” defences to Coeclerici’s claim arise out of the following facts. Coeclerici made the Prepayment to NRE’s bank account in India, as required by the sale contract. If NRE was obliged to return the Prepayment to Coeclerici, and if the refund was to take place more than one year after NRE’s receipt of the Prepayment funds, it required the prior approval of the Reserve Bank of India, in accordance with Regulation 16 of the Exchange Regulation made pursuant to the Foreign Exchange Management Act 1999 (India). As the Payment Agreement required the moneys to be paid more than a year after receipt by NRE, any such payment could be made lawfully only with the prior approval of the Reserve Bank of India. Although NRE has applied for such approval, it has not yet been granted.

    30.      The Claimants say that these facts give rise to two related defences:

    (1)       It must have been obvious and certainly necessary for the business efficacy of the Payment Agreement that the payment of the Principal Sum was to be made out of India (bearing in mind that the Prepayment was made into India) and that therefore any such payment could be lawfully made only in accordance with the Indian Exchange Regulation. Accordingly, a term should be implied to the effect that payment was conditional on the obtaining of the relevant prior approval of the Reserve Bank of India.

    (2)       Further or alternatively, (This is a new point raised for the first time in Counsel’s skeleton argument for the hearing on 1st July 2013) as the Payment Agreement required the Prepayment to be returned from India, and as NRE could not lawfully pay the funds in accordance with the schedule set out in the Payment Agreement without the prior approval of the Reserve Bank of India, any contractual term requiring a payment to be made in a manner which was unlawful by the law of the place of performance, in this case India, is unenforceable. It is recognised that, in cases of a contractual obligation to pay money, the general rule is that that obligation is to be performed at the place where the creditor resides or carries out business. Nevertheless, that rule does not apply where the parties intend the obligation to be performed in a different or additional country or in a particular manner. In this case, the Payment Agreement required payment to be made to Coeclerici in Singapore, but it also required the moneys to be paid out of India, because the moneys to be paid under the Payment Agreement were the “Principal Sum”, which represented the “Prepayment” made by Coeclerici to NRE, an Indian company, in India. The relevant payments could be made only insofar as they could be lawfully made from India. As exchange control approval was required and has not yet been forthcoming, it follows that there has been no breach of the Payment Agreement.

    31.      The Claimants point out that these issues will necessarily require evidence of Indian law and of the factual background to the conclusion of the Payment Agreement for consideration by the Tribunal.

    32.      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.

    33.      The new defence of unenforceability is inconsistent with existing principles of long standing- see Dicey, Morris & Collins on The Conflicts of Law , 15th edition Rule 264-

    37R-061
    A contractual obligation may be invalidated or discharged by exchange control legislation if-
    (a)
    such legislation is part of the law applicable to the contract; or
    (b)
    it is part of the law of the place where a payment obligation arising out of the contract has to be or has been performed, insofar as the overriding mandatory provisions of that law render the performance of the contract unlawful; or
    (c)
    the exchange control legislation is part of English law and the relevant statute or statutory instrument is applicable to the contract.”
    and in particular 37-065. “Rule 264(1)(b) is concerned solely with the place where the legal obligation to make payment arises. As a matter of the English conflict of laws, the place of payment is the place where the debtor is obliged to tender payment, being also the place where the creditor is contractually entitled to receive payment. Thus, it is immaterial whether one party has to equip himself to make payment by an act in another country, including his home country. For this reason, a defence to non-performance of a payment obligation based upon exchange control restrictions imposed in the home country of one of the parties to a contract will normally fail unless there is a contractual obligation to make payment in that country.” There is no such obligation in this case.

    34.      Nothing has been heard of the proposed defence of incapacity. No reason has been advanced why NRE lacked capacity to entered into the Payment Agreement but not the original contract. The Guarantor, Mr Jagatramka, has given evidence in the Australian enforcement proceedings so he plainly has capacity.

    35.      I therefore do not consider that, had the Tribunal had the opportunity to be addressed about these points, it might well have reached a different view and produced a significantly different outcome.

  40. Three things can be noted about these paragraphs.  First, lack of capacity was effectively abandoned (nor was it relied on in this Court).  Secondly, it was submitted (for the first time in the High Court) that the appellants were discharged from performance by the unenforceability of the contractual term of payment because performance was unlawful by the laws of the place of performance – India.  This was dealt with by Judge Mackie QC at [30(2)] of his reasons.  This argument was not put to either Foster J or us though a cognate argument of an implied term of law was put (see below).  Thirdly, the dismissal by Judge Mackie QC of the implied term argument in [32] of his reasons was directed to the implication of a term as a matter of fact: The Moorcock (1889) 14 PD 64.

    The primary judge’s reasons

  41. The essence of the primary judge’s conclusion was that the appellants had an ample opportunity to put their case to the arbitrators.  Further, his Honour concluded that the issue as to the adequacy of the opportunity had been decided by Judge Mackie QC and was the subject of an issue estoppel.
  42. For the reasons below, we agree with the learned primary judge’s conclusion (and the same conclusion of Judge Mackie QC) that the appellants were given a reasonable opportunity to be heard.

    A reasonable opportunity to be heard

  43. The first matter to appreciate is that the consequences of the failure to pay the
    USD 600,000 under the Payment Agreement was not the referral of a dispute to a separate or different arbitration.  Clause 8 of the Payment Agreement referred the dispute to the three arbitrators as “the Tribunal”.  It then became a question for them, in the arbitration before them, as to whether an event had occurred to lift the suspension of the arbitration.  This was the point (correctly, if we may respectfully say) being made by Judge Mackie QC in the first sentence of [22] of his reasons.  It is not correct, as some of the submissions of the appellants sought to do, to treat the matters thrown up by the appellants’ failure to pay as requiring the mechanical application of the LMAA rules, concerning exchange of submissions, and any evidence and the filling in of the questionnaire.  The arbitrators were entitled to resolve this issue in the arbitration by such procedure as they chose as long as it gave a fair and reasonable opportunity to the appellants to put their case.
  44. Secondly, there is a clear relationship between the quality of the point being raised and the length of time to be given and the procedure to be employed to resolve the point.  Here, the arbitrators thought that both the implied term point and the capacity point were so lacking in merit that nothing could be gained by any further explication.  No complaint is made (nor was one articulated before Judge Mackie QC) about the arbitrators’ treatment of the capacity argument in this fashion.  Rather, the gravamen of the argument on appeal was that the implied term point was real, of substance, and worthy of some time for its development.  It was submitted that the view of the arbitrators that the point was hopeless and incapable of being improved on explication, given time, was both precipitate and wrong.
  45. The submissions as to the worth and substantiality of the implied term point were, in significant part, put in the submission in reply in this Court.  It was put that the term should be implied as a matter of fact, as a matter of law and as a matter of custom and usage.  No such elaboration was made before either the arbitrators or Judge Mackie QC.  There was ample time to do so between 4 and 14 February 2013.
  46. In any event, the assertion of an implied term as a matter of fact or as based on custom and usage was hopeless.
  47. First of all, there was an absence of clarity as to the expression of the term.  Also, as expressed in Bentleys’ email of 7 February in para 2, the term was inconsistent with cl 2 of the Payment Agreement, where the amounts and dates were unequivocally stated.
  48. Secondly, the term will only be implied in fact if the business people concerned would have (objectively) said “of course” to the inclusion of the term.  It would have been astonishing if a party in Coeclerici’s position had said “of course” to this.  It would have transformed precise, definite and shortly expressed payment obligations allowing for an award to be handed down in a few months, at the latest, should there be default, into an indeterminately, and perhaps almost permanently, suspended arbitration:  More likely, “of course not”, than “of course”.
  49. Thirdly, no evidence or hint of evidence to support the notorious, certain, legal and reasonable nature of custom and usage was identified before us: cf Con-Stan Industries of Australia Pty Limited v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; 160 CLR 226 and Sagar v H Ridehalgh & Son Ltd[1931] 1 Ch 310.  No question of custom or usage was suggested to the arbitrators.  Given the absence of identification of any foundation for it in the ample time that has elapsed prior to this appeal, we would not be prepared to hold that any more time than that which was made available by the arbitrators would have been of any utility.  In any event, it was hopeless as inconsistent with the clear express terms of cl 2.
  50. The third way of putting the implied term was that it was a term implied by law.  This way of putting the matter was enunciated in written submissions in this Court in reply.  The term (presumably that enunciated in para 2 of the email of Bentleys of 7 February) was said to be supported by what was said by Scrutton LJ in Ralli Brothers v Compania Naviera Sota y Aznar [1920] 2 KB 287 at 303-304 where the following appears:

    But in my opinion at the present day, in the absence of very special circumstances, cases which decide that a contracting party who has undertaken to do something in a foreign country is not relieved from his obligation by the fact that such an act is, or becomes, illegal in that foreign country are wrongly decided … .  I should prefer to state the ground of my decision more broadly and to rest it on the ground that where a contract requires an act to be done in a foreign country, it is, in the absence of very special circumstances, an implied term of the continuing validity of such a provision that the act to be done in the foreign country shall not be illegal by the law of that country.  This country should not in my opinion assist or sanction the breach of the laws of other independent States.

  51. In Ralli, freight on a cargo of jute was by the contract required to be paid in Barcelona.  Spanish law prohibited freight greater than a certain amount to be paid.  The contract called for an act contrary to the law of the place of performance.  This contract did not require an act to be performed in India.  It was submitted that there was debate as to whether India was the place of performance.  Plainly Singapore was.  There was no basis to conclude that performance was contractually to be undertaken in India.
  52. In any event, the appellants had over a week to articulate these matters (and they knew previously that they would have to do so).  They had no right to some leisurely expanse of time to think up and develop points.  This was an international commercial arbitration, about payment of a debt admitted to be due, and outstanding for months.  The arbitrators were not only entitled, but obliged, to act with proper despatch.  That entitlement and obligation inhered in their authority taken from the consent of the parties.  They were entitled and obliged to assess the worth of the points raised, and give them the despatch in disposition they thought appropriate, deploying all their accumulated experience as arbitrators.  Another arbitrator, perhaps foreseeing the time and expense the applications before Judge Mackie QC, Foster J and us have taken up, may have put them on a strict timetable of one or two weeks.  They did not.  They had the courage of their convictions as to the hopelessness of the points raised.  They thought they had given the appellants a reasonable opportunity to explain their apparent default.  The supervising court of the seat agreed with them.  Foster J agreed with them.  We agree with them.
  53. The above being our views, there is no basis for concluding that there was a breach by the arbitrators of the rules of natural justice for the purposes of the International Arbitration Act, s 8(7A).  Paragraphs 8(5)(c) and 8(7)(b) are not enlivened.
  54. In these circumstances, it is unnecessary to discuss the text and operation of the International Arbitration Act, s 8, including the scope of the notion of public policy in s 8, and the notion of natural justice in that context in s 8(7A).

    Issue estoppel

  55. The primary judge also relied upon issue estoppel.  Given our views on the appellants having had a reasonable opportunity to put their case, it is strictly unnecessary to deal with this issue.  Nevertheless, it is appropriate to deal with some matters.
  56. The primary judge referred at length to the reasons of Judge Mackie QC.  He said that the question of whether the appellants had a reasonable opportunity to present their case in the arbitration was decided by Judge Mackie QC as a fundamental part of the reasoning that was employed in declining to set aside the award upon the application of the appellants.  The primary judge concluded that issue estoppel was capable of application when the issue had been determined in a prior judgment in a foreign court and he cited in support of that proposition the decision in Armacel Pty Ltd v Smurfit Stone Container Corp[2008] FCA 592; 248 ALR 573 at 580 ‑ 583 [56] ‑ [82].  The primary judge noted that before Judge Mackie QC the appellants had submitted that they were shut out on 4 February 2013 by the arbitrators from making submissions in support of their opposition to the making of the award sought by the respondent, and that they had also submitted that thereafter they were not afforded a reasonable opportunity to put their case.  The primary judge noted that this second proposition was based upon “the very same emails as were tendered before me in support of grounds 1 and 2 of the respondent’s amended notice of grounds of opposition” (at [102]).
  57. The primary judge concluded that the issues raised in the proceeding before him had been determined by the English High Court of Justice and could not be re-litigated before him.  He said that there was an issue estoppel.
  58. The primary judge also went on to say that it would be generally inappropriate in any event 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 arbitration.  He noted that the English Court was the court of the seat of arbitration and that under the United Nations Conference on International Commercial Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and the International Arbitration Act 1974 (Cth) any application to set aside the award must be made in that court.  The trial judge said that it would be a rare case where it would be appropriate for this Court, as an 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.
  59. The appellants submitted that the primary judge erred in deciding that the English Court had decided the same issue as the issue before the primary judge.  We reject that contention.
  60. An issue estoppel only arises in relation to those matters which a prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion.  As Sir Owen Dixon said in a well-known passage in Blair v Curran [1939] HCA 23; 62 CLR 464 at 532:

    Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded.  In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action that is, the title to the right established.  Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived.

  61. It is true, as the appellants submitted, that the relevant statutory provisions in the case before the English Court were different from subss  8(5), (7) and (7A) of the International Arbitration Act.  The statutory provisions in issue in the proceeding before the English Court were subss 68(2)(a) and (c), and s 33(1) of the Arbitration Act 1996 (UK), to which we have already made reference.  The concepts of a “serious irregularity” and “substantial injustice” are not found (at least expressly) in subss 8(5), (7) and (7A) of the International Arbitration Act.
  62. It is also true that the basic exercise before the English Court was different from the exercise before the trial judge.  The English Court was considering a challenge to the arbitration award, whereas the trial judge was considering whether the award, being a foreign award, should be enforced.  Nevertheless, we think that the English Court did decide the key issue which was the issue before the primary judge.  The key issue before the primary judge, whether formulated under the rubric of subss 8(5)(c), (7) and (7A) of the International Arbitration Act, was whether the appellants had been given a reasonable opportunity to present their case at the arbitration.  One of the elements of a serious irregularity under s 68(2) of the English Act is a failure to comply with s 33.  A failure to comply with s 33 includes a failure to give each party an opportunity to put its case.  Judge Mackie QC considered this issue directly in [23] of his reasons, which we have earlier set out.
  63. The conclusion of Judge Mackie QC in the last sentence of [23] was indispensable to the final result – the rejection of the challenge to the award.  In fact, once the conclusion had been reached the challenge could not succeed.
  64. Both parties made detailed submissions on whether issue estoppel operates in circumstances where an Australian court is considering whether to refuse to enforce a foreign award on the grounds identified in subss 8(5)(c) and (7) of the International Arbitration Act.  The issue is one of importance and of potential difficulty.  It is not resolved in a clear way by any authority binding on this Court:  see generally IMC Aviation Solutions Pty Ltd v Altain Khuder LLC [2011] VSCA 248; 282 ALR 717 at 724-725 [26] per Warren CJ; Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2010] UKSC 46; [2011] 1 AC 763 at 834-835 [98] per Lord Collins; Karaha Bodas Co LLC v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara [2003] 380 HKCU 1 at [48] – [53] per Burrell J.
  65. We do not propose to attempt a resolution of the issue, because we think that a prompt judgment is desirable in this case and, at the very least, the primary judge was correct to hold that it will generally be inappropriate for this Court, being the enforcement court of a Convention country, to reach a different conclusion on the same question of asserted procedural defects as that reached by the court of the seat of arbitration.  We endorse and apply the following observations of Colman J in Minmetals Germany GmbH v Ferco Steel Ltd [1999] 1 All ER (Comm) 315 as to the weight to be given to the views of the supervising court of the seat of the arbitration.  That experienced commercial judge said at 331:

    In a case where a remedy for an alleged defect is applied for from the supervisory court, but is refused, leaving a final award undisturbed, it will therefore normally be a very strong policy consideration before the English courts that it has been conclusively determined by the courts of the agreed supervisory jurisdiction that the award should stand.  Just as great weight must be attached to the policy of sustaining the finality of international awards, so also must great weight be attached to the policy of sustaining the finality of the determination of properly referred procedural issues by the courts of the supervisory jurisdiction.  I use the word ‘normally’ because there may be exceptional cases where the powers of the supervisory court are so limited that they cannot intervene even where there has been an obvious and serious disregard for basic principles of justice by the arbitrators or where for unjust reasons, such as corruption, they decline to do so.  However, outside such exceptional cases, any suggestion that under the guise of allegations of substantial injustice procedural defects in the conduct of an arbitration which have already been considered by the supervisory court should be reinvestigated by the English courts on an enforcement application is to be most strongly deprecated.  (emphasis added)

  66. In this case there is nothing to suggest that it falls within one of the exceptional cases identified by Colman J.
  67. Thus we agree with the primary judge’s conclusion as to the appropriateness of not departing from the conclusion of Judge Mackie QC, as the second ground which the primary judge identified under the rubric of “issue estoppel” and that is sufficient for the purposes of this case.
  68. It may be that considerations of the kind expressed in the views of Colman J in Minmetals would also have relevance if we were of the view that there was a procedural defect amounting to a breach of the rules of natural justice and if we were called on to consider the question whether, in the light of the supervising court’s views, the award should nevertheless be enforced.  It is unnecessary to deal with this question.

    Appointment of receivers

  69. The final issue raised in this appeal related to the appointment of receivers to take control of and sell the relevant shares.
  70. It was not disputed that the Court had the power of appointment of receivers in aid of enforcement.
  71. The argument before the primary judge was whether it was appropriate to appoint a receiver where a freezing order was in place and a charging order could be made to protect the interests of the respondent.  Importantly for the appellants, the charging order would have included a moratorium of three months, in that the respondent could not within that time commence proceedings to take the benefit of the charge arising under the charging order.
  72. It also seemed to be argued before the primary judge that if he was considering appointing receivers (and not making a charging order), then a moratorium of three months should be expressly included in the order of appointment of the receivers.
  73. Before us, Senior Counsel for the appellants did not dispute the appropriateness of a receiver being appointed, but submitted that the primary judge either did not turn his attention to imposing a three month moratorium, or otherwise failed properly to exercise his discretion in not so ordering the three month moratorium.
  74. We do not accept these submissions.
  75. The primary judge correctly identified the guiding principle in the appointment of receivers in aid of enforcement: what is just and convenient in all the circumstances of the case.  As he said, this is the language of the applicable legislation.
  76. In applying this principle, the primary judge made a number of orders and accepted undertakings by the appellants – these relevantly included the appointment of receivers and the continuation of freezing orders.  As the learned primary judge said at [115], all these measures were taken to protect the respondent’s “legitimate entitlement to practical enforcement of its monetary judgment and order for costs”.
  77. In addition, the primary judge did in fact stay the receivership orders for a period of time, expressly on the basis of giving the appellants an opportunity to pay the award debt.
  78. Whether the primary judge directed his mind to a specific three month period or not, he clearly balanced the interests of the appellants by granting a stay to give them some time to pay the award debt, and the need to protect the legitimate interests of the respondent.
  79. We consider that the learned primary judge properly undertook the task required of him in considering what was just and convenient.
  80. This is an instance where the award relates to the prepayment of money by the respondent to the appellants which has not been repaid, where the supervisory court of the arbitration has rejected an attempt by the appellants to set aside that award, and where the primary judge concluded that the case for resisting enforcement of the award was “utterly unmeritorious”.
  81. In addition, there was some evidence before the primary judge, although not relied upon by him, that without the appointment of the receivers, there may well have been an impediment to the distribution of the proceeds of any sale of the shares to the respondent.
  82. Therefore, it has not been shown by the appellants that the learned primary judge misapplied the “guiding principle” he correctly stated was the approach he proposed to take in considering the appropriateness of appointing receivers.
  83. Further, the failure to order any further moratorium or stay of the receivership orders over the period of indulgence already given by the primary judge has not been shown to be an appellable error.

    Orders

  84. The appeal should be dismissed with costs.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop and Justices Besanko and Middleton.

 

 

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