Australia, Supreme Court of Queensland
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Australia / 27 June 2000 / Australia, Supreme Court of Queensland / Commonwealth Development Corp v. Montague / Appeal No 8159 of 1999; DC No 29 of 1999
Country Australia Court Australia, Supreme Court of Queensland Date 27 June 2000 Parties Commonwealth Development Corp v. Montague Case number Appeal No 8159 of 1999; DC No 29 of 1999 Applicable NYC Provisions II | II(2) | II(1) Source [2000] QCA 252 Languages English Summary The appellant commenced arbitration proceedings before the International Court of Arbitration of the International Chamber of Commerce in France. A number of the parties named in the request for arbitration, including the respondent, filed preliminary objections as to the tribunal’s jurisdiction. In its award on those preliminary objections, the tribunal decided that it did not have jurisdiction to entertain the appellant’s claims and separately awarded costs against the appellant. The respondent then sought leave from the Supreme Court of Queensland to enforce the award as to costs, as then required under the former s 8(2) of the International Arbitration Act 1974 (Cth) (“the Act”) (providing for the enforcement of NYC awards, as defined by the Act, in a court of a State or Territory as if the award were a judgment or order of that court). The appellant objected on the basis that once the tribunal determined that it had no jurisdiction over the appellant’s claims, it lacked power to make any award with respect to the costs of the proceedings. In an unreported first instance decision, the Court decided in favour of the respondent and granted leave to enforce the award. The appellant appealed. The Court of Appeal dismissed the appeal, holding that the terms of reference signed by the parties to the arbitration proceedings constituted an “agreement in writing” within Article II NYC, pursuant to which the tribunal had the power to make a decision with respect to its jurisdiction. Thus, it held that the award as to costs was enforceable pursuant to the Act. In so deciding, it reasoned that the fact that there was no determination of the arbitration proceedings on the merits (owing to the tribunal’s determination of the preliminary jurisdictional point) had no bearing on the ability of the respondent to enforce the interim award pursuant to the Act. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=796&opac_view=6 Attachment (1)
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