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AUSTRALIA 51
Federal Court of Australia, 5 August 2020, File No. NSD 94 of 20
(Energy City Qatar Holding Company v. Hub Street Equipment Pty Ltd (No 2)
AUSTRALIA 51
A Judge of the Federal Court granted the application to enforce a Qatari award. Energy City, which had commenced the arbitration, had sought the appointment of the three-member arbitral tribunal by a Qatari court rather than following the procedure set out in the arbitration clause in the parties' contract. Hub Street had not participated in the arbitration. The Judge held on the facts of the case that Hub Street, contrary to its argument, had been given proper notice of the arbitration, as it had been aware of the application to the Qatari court for the appointment of the tribunal. The Judge also rejected Hub Street's claim that the appointment of the arbitrators and the constitution of the arbitral tribunal had not been in accordance with the agreement of the parties, finding that, since the contract was governed by Qatari law and the arbitration clause called for arbitration "in accordance with the rules of arbitration in Qatar", Energy City had been entitled under Qatari law to request the appointment of the arbitrators from a Qatari court. Hub Street's further objection that the language of the arbitration had not been in accordance with the agreement of the parties also failed, as the Judge found that even though Arabic had been used in the arbitral proceedings and for the drafting of the award, rather than English as required under the parties’ contract, other factual elements, such as the fact that the notices of the arbitration had been in English, led to conclude that there had been no prejudice to Hub Street.
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
Public policy: The court discusses alleged violations of a fundamental rule of due process in the arbitration on the recognition and enforcement of an arbitral award, including the failure to communicate the names of the arbitrators, the failure to send copies of reports or letters filed in the arbitration, etc.