International Construction Law Review
COHABITATION: DO ARBITRAL RULES AND ARBITRAL STATUTES GO TOGETHER? “IMPLIED” OPTING-OUT OF THE MODEL LAW IN SINGAPORE AND AUSTRALIA AND WHAT IT MIGHT MEAN.
JONATHAN KAY HOYLE
Senior Associate, International Arbitration Group, Clayton Utz, Sydney 1
INTRODUCTION
In late 1995, Toyo Engineering Corporation (“TEC”) entered into a contract with Mobil to engineer and construct an upgrade of the facilities at the Mobil oil refinery in Altona, in the Australian state of Victoria. Consequent upon this, TEC, in April 1996, entered into a sub-contract with John Holland Proprietary Limited (“JH”) for certain engineering services in respect of the upgrade.
Under the sub-contract, TEC and JH agreed to refer all disputes arising under it to arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce (“ICC Rules”).2
The parties initially chose Tokyo as the place of arbitration but ultimately changed this to Singapore.
Towards the end of 1996, a dispute arose. The dispute was referred to the ICC and in due course an arbitral tribunal was constituted to hear the dispute.3
There was a hearing in Vancouver in November 1998 followed by final submissions in January 1999. The arbitral tribunal subsequently handed down an award (“Award”) in October 2000.4
On 13 November 2000, JH filed an application in the High Court of Singapore to have the Award set aside. Two weeks later, TEC applied to the Supreme Court of Victoria to have the Award enforced. On 19 December 2000, Mr Justice Byrne ordered that the enforcement application be stayed
1 The author was a member of the legal team that represented John Holland in the setting aside proceedings. The case was argued in the Singapore proceedings by Michael Hwang, SC. I would like to thank the other members of the Group for their help and encouragement: Doug Jones, AM; Andrew Rogers, QC; Andrew Stephenson; Dale Brackin; Frank Bannon. However, the views expressed in this article are entirely those of the author (as are, needless to say, any errors).
2 The relevant rules used by the parties were the 1988 version of the ICC Rules and all references to the ICC Rules should be taken to mean this unless otherwise noted.
3 The tribunal was composed of Vivian Ramsey, QC and John Tackaberry, QC, with Edward Chiasson, QC, acting as the Chairman.
4 The arbitrators awarded TEC approximately $40m in damages and costs.
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Cohabitation: Arbitral Rules and Statutes
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