Foreign arbitration agreements and awards
38 Part II of the IAA reinforces these conclusions as to the reach of s 22A(c). Part II was specifically inserted to deal with foreign arbitration agreements and awards, with, for example, 'foreign award' defined to refer to an award made 'in a country other than Australia': s 3(1).
39 The IAA otherwise makes provision for conferral of jurisdiction to enforce arbitral awards (domestic) through art 35 of the Model Law which provides that:
An arbitral award, irrespective of the country in which it was made, shall be recognized as binding and, upon application in writing to the competent court, shall be enforced subject to the provisions of this article and of article 36.
40 As the Model Law covers the field by virtue of s 21 of the IAA, this would appear to be the only way for a domestic award in an international arbitration to be enforced: Justice Stephen Rares, 'The Federal Court of Australia's International Arbitration List' (Paper presented at the Senior Counsel Arbitration Seminar of the New South Wales Bar Association, 14 September 2011) at [5]-[6]. Article 35, on a plain reading, would appear to cover both domestic and foreign awards. However, for the purposes of the IAA, the Parliament turned its mind to provide expressly for foreign awards and agreements in pt II. There is, by contrast, no express provision for foreign arbitral proceedings (taking place 'in a country other than Australia') in s 22A.
41 Furthermore, in the objects of the IAA set out in s 2D, separate provision is made for the recognition and enforcement of arbitral awards generally (in s 2D(c)) and the obligations Australia has in respect of recognising and enforcing foreign awards specifically (in s 2D(d)).
42 The specification of 'foreign' awards and arbitration agreements in pt II and the objects of the IAA points against a presumed intention that s 22A be read expansively to include foreign-seated arbitral proceedings.
43 Samsung submitted, for the Second Application, that '[t]here is nothing in the legislative history to support a narrow and restricted interpretation of subsection (c) of s 22A'. Earlier, in relation to the First Application, it had submitted that '[t]he legislative context also strongly supports the wider interpretation of s 23'. Leading commentators on the IAA have observed that pt III (including ss 22A and 23) was introduced to encourage international arbitration taking place in Australia: Malcolm Holmes and Chester Brown, The International Arbitration Act 1974: A Commentary (2nd ed, Lexis Nexis, 2015) at 5. Indeed, prior to the introduction of pt III provisions in 2010, the Commonwealth Attorney-General, in a media release issued on 21 November 2008 to outline the need for review of the IAA, cited the intention of 'developing Australia as a regional hub for international commercial dispute resolution': Attorney-General's Department, 'Australian Government Moves to Modernise International Arbitration' (Press Release, 21 November 2008).
44 As Holmes and Brown note at 6:
On 21 November 2008, the Commonwealth Attorney-General announced a review of the Act and released a discussion paper to stimulate debate about the future of the Act (the Review). The Review resulted in, first, the Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth), which conferred jurisdiction under the Act on the Federal Court of Australia concurrently with that of the Supreme Courts of the states and territories; and second, the International Arbitration Amendment Act 2010 (Cth), which involved a major revision of the Act and the adoption of the 2006 amendments to the Model Law.
(emphasis added)
45 Section 3 of sch 1 of the Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth) added the phrase '(c) in any case - the Federal Court of Australia' to the end of s 18, among other changes which effectively replicated for this Court the jurisdiction that State and Territory Supreme Courts had to exercise certain functions and powers under the IAA. Section 16 of the International Arbitration Amendment Act 2010 (Cth) added s 22A in full in terms (unchanged since then) that are near-identical to the terms of s 18, including the concurrent jurisdiction of this Court.
46 The significance of concurrent jurisdiction is apparent in the discussion that led to the changes. In its 2008 discussion paper on the review of the IAA, the Federal Government suggested the conferral of exclusive jurisdiction over IAA matters to this Court. This proposal was met by significant opposition from the Chief Justices of State and Territory Supreme Courts: see Chief Justices of the States and Territories, Submission to Attorney-General's Department, Review of the International Arbitration Act 1974 (Cth), 10 December 2008, 1. The Court was then, in 2008, given jurisdiction over IAA matters identical (or, concurrent) to that given to State and Territory Supreme Courts, rather than exclusive jurisdiction. This would support an interpretation of s 22A(c) that limits this Court's jurisdiction to that of the State and Territory Supreme Courts.
47 Indeed, returning to the revised explanatory memorandum for the bill introducing pt III provisions including ss 22A and 23, the International Arbitration Amendment Bill 2009 (Cth), the justification given for these changes was as follows, at [59]:
The following items amend Part III of the Act which gives the force of law to the Model Law as the primary arbitral law governing the conduct of international commercial arbitrations in Australia.
(emphasis added)
48 I am satisfied that the context and purpose of s 22A and the IAA more generally supports a construction that it applies to arbitral proceedings seated in a State or Territory of Australia. To paraphrase Gummow J in Kainhofer in relation to the somewhat analogous statutory text there, s 22A(c) does not proceed on the footing that there is a further category of geographical locations for arbitrations beyond those held in a State or Territory. Allowing for a third type of arbitral proceedings to be included, in the absence of clear words to that effect, would be inconsistent with the purpose of the IAA and indeed the purpose of the amendments that introduced both ss 22A and 23. The options and choices afforded under such provisions of pt III of the Act are therefore limited to parties who have commenced their arbitral proceedings in Australia.
49 Samsung's alternative submission was that a territorial nexus would overcome the territorial limits on jurisdiction. Samsung made this submission primarily by reference to the 'constitutional conceptions of predominant territorial nexus inherent in the federal compact and the nature of judicial power'. This submission was rather faintly put and I do not accept it.
50 Finally, as I noted at [5] above, Samsung's solicitors had originally intended to seek the issue of a letter of request under the Hague Evidence Convention, which it would have sought to effect through the Western Australian Supreme Court. However, at [20] above, I also noted Samsung's further submission that because the Singaporean courts have no jurisdiction to issue subpoenas to persons outside Singapore, s 23 was the only available avenue for Samsung to achieve that end. This is not so.
51 Singapore and Australia are both contracting parties to The Hague Evidence Convention. Under art 1 of that Convention, the central authority of the requesting state may send a letter of request to the central authority of another contracting state for the taking of evidence. The letter must be executed by a judicial authority of the requested state that is competent to do so under its own law (art 2), which in this case would be the Western Australian Supreme Court. Parties may apply to the Western Australian Supreme Court for assistance in obtaining evidence in a court or tribunal which is outside Western Australia: Evidence Act 1906 (WA) ss 115-118; Rules of the Supreme Court 1971 (WA) O 39.