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AUSTRALIA 56
Federal Court of Australia, General Division, New South Wales Registry, 30 August 2022, NSD 1152 of 2021
(Siemens WLL and Siemens AG v. BIC Contracting LLC)
AUSTRALIA 56
The applicants entered into a construction agreement with a contractor in respect of a people-mover system at Education City in Qatar, and into a related payment guarantee agreement with both the contractor and respondent. In accordance with the arbitration clauses in the agreements, the same panel of arbitrators rendered an LCIA award in London and an ICC award in Dubai, both in favor of the applicants. The Federal Court granted the applicants’ application for judgment in the amount of the awards, together with interest and costs. The Court found that respondent, which did not appear in the enforcement proceedings, had been duly served, and that all the requirements under the International Arbitration Act were met. The awards were foreign awards to which the 1958 New York Convention applied, because they were made in a country other than the country in which recognition and enforcement was sought. In this respect, the Court clarified that the reference to the State in which the award was made was not confined to a Contracting State to the Convention, as Australia did not make the reciprocity reservation when acceding to the Convention. And in any event, the Court added, both the UK and the UAE were Convention countries. Further, the Court found that the applicants complied with the requirements of Sect. 9(1)(a)-(b) of the IAA – which mirror Art. IV(1)(a)-(b) of the Convention – by supplying the copy of the signed awards transmitted electronically to them by the LCIA and ICC secretariats, respectively, as is allowed under both sets of rules, as well as copies of the arbitration agreements, accompanied by an affidavit by counsel who had represented the applicants in the arbitration. Finally, the Federal Court converted the amounts sought into Australian dollars, as requested by the applicants. It noted that in the originating application, the sums sought – that is, the sums awarded by the arbitrators – were indicated in various foreign currencies; however, the additional notation “or equivalent” sufficed, in the Court’s opinion, to give notice to respondent that the judgment may be expressed in a different currency. As to the date for conversion, the Federal Court held, on the facts, that the appropriate date was the date of its own judgment. However, it accepted as sufficiently close the exchange rates from the day before the date of the hearing, which was also the date of the present judgment, reasoning that it was impractical to convert sums to Australian dollars at exchange rates on the date of judgment as, typically, the court sits in the morning when exchange rates are not yet available, particularly for currencies in other parts of the world.
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.
The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.
The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.