Tianjin Jishengtai Investment Consulting Partnership Enterprise v Huang

THE COURT ORDERS THAT:

1. Within 7 days the parties are to confer and email the Associate to the Honourable Justice Jagot, agreed or competing orders reflecting the oral reasons for judgment given on 14 May 2020. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 These reasons for judgment concern an application under s 8(3) of the International Arbitration Act 1974 (Cth) (the International Arbitration Act) by which the applicant seeks enforcement of an award made in the People's Republic of China by the China International Economic and Trade Arbitration Commission on 3 September 2018 pursuant to ss 8 and 9 of the International Arbitration Act. 2 Relevantly, s 2D of the International Arbitration Act states the objects of the Act. These are, in effect, to facilitate international trade and commerce by encouraging the use of arbitration as a method of resolving disputes and to facilitate the use of arbitration agreements made in relation to international trade and commerce, as well as to facilitate the recognition and enforcement of arbitral awards made in relation to international trade and commerce. 3 By s 39 of the International Arbitration Act, the Court must have regard to the objects of the Act if a Court is considering exercising a power under s 8 to enforce a foreign award. A foreign award is defined in s 3 to mean an arbitral award made in pursuance of an arbitration agreement in a country other than Australia being an arbitral award in relation to which the convention applies, meaning the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in 1958 by the United Nations Conference on International Commercial Arbitration at its twenty-fourth meeting (the Convention). A copy of the English text is set out in Sch 1 to the International Arbitration Act. 4 Section 8(3) provides that, subject to this part, a foreign award may be enforced in this Court as if the award were a judgment or order of this Court. Section 9 is relevant to the issues in dispute in this proceeding and its terms are set out below: (1) In any proceedings in which a person seeks the enforcement of a foreign award by virtue of this Part, he or she shall produce to the court: (a) the duly authenticated original award or a duly certified copy; and (b) the original arbitration agreement under which the award purports to have been made or a duly certified copy. (2) For the purposes of subsection (1), an award shall be deemed to have been duly authenticated, and a copy of an award or agreement shall be deemed to have been duly certified, if: (a) it purports to have been authenticated or certified, as the case may be, by the arbitrator or, where the arbitrator is a tribunal, by an officer of that tribunal, and it has not been shown to the court that it was not in fact so authenticated or certified; or (b) it has been otherwise authenticated or certified to the satisfaction of the court. (3) If a document or part of a document produced under subsection (1) is written in a language other than English, there shall be produced with the document a translation, in the English language, of the document or that part, as the case may be, certified to be a correct translation. (4) For the purposes of subsection (3), a translation shall be certified by a diplomatic or consular agent in Australia of the country in which the award was made or otherwise to the satisfaction of the court. (5) A document produced to a court in accordance with this section is, upon mere production, receivable by the court as prima facie evidence of the matters to which it relates. 5 There are two primary issues on which the respondent relies to oppose enforcement of the award. 6 First, the respondent relies on ss 9(1)(a) and (b) of the International Arbitration Act to put in issue whether there is a duly certified copy of the award, and duly certified copies of the original arbitration agreements under which the award purports to have been made. 7 Second, the respondent contends that the form of the orders which the applicant seeks do not reflect the form of the award. The award is in the following terms: The first respondent is liable for and shall pay to the claimant RNB 78753425 to acquire from the claimant a 32.43836 per cent stake in the second respondent. Other requests in the statement of claim are denied. The respondent shall pay the costs for the arbitration totalling 689475. As the claimant has paid an advance on costs to cover such amount, the respondent shall pay RNB 689475 to the claimant. 8 The agreements which provided for arbitration of disputes between the applicant and the respondent consist of a capital increase agreement, a shareholder agreement, and a supplementary agreement to the capital increase agreement. In written submissions for the applicant, reference is made to the decision in Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd [2011] FCA 131, (2011) 277 ALR 415 at [126] where Foster J said: The whole rationale of the [International Arbitration] Act, and thus the public policy of Australia, is to enforce [foreign] awards wherever possible in order to uphold contractual arrangements entered into in the course of international trade, in order to support certainty and finality in international dispute resolution and in order to meet the other objects specified in s 2D of the Act. 9 I have already referred above to the relevant provisions of the International Arbitration Act. In this regard, I accept the submissions for the applicant to the following effect: (1) the People's Republic of China is a country to which the Convention applies. In this regard, I refer to the s 10(1) certificate issued by the Department of Foreign Affairs and Trade which is annexed to an affidavit of Mr Shen; (2) an arbitration agreement is defined to include a purported or apparent agreement. There is no dispute that the award is an award within the meaning of the Act; (3) rule 28.44 of the Federal Court Rules 2011 (Cth) (the Federal Court Rules) sets out the requirements for the originating application and supporting documents. There appears to be no dispute that this rule has been complied with; and (4) rule 28.50 of the Federal Court Rules provides that a party who wants to rely on a document that is not in the English language must provide a certified English translation of the document to the Court and to any other party to the proceeding. In this regard, there are certified copies of the relevant documents translated into the English language.