This chapter seeks to survey recent developments in Australian private international law, using a selective rather than comprehensive approach. This is, of course, a challenging task, given the ever-increasing number of Australian decisions involving cross-border disputes. However, the rise in multi-jurisdictional matters is precisely why a survey such as this is important.
The chapter begins with a brief discussion of the key policy development in the private international law space, followed by an analysis of key cases involving the initiation of litigation (service and jurisdiction) and restraint of process. The chapter concludes with some brief forward-looking remarks.
1 Signature of the Singapore Convention on Mediation
The most important policy matter in private international law during the 2020–21 period involved the United Nations Convention on International Settlement Agreements Resulting from Mediation (‘Singapore Convention on Mediation’), a ground-breaking instrument that seeks to level the playing field between international commercial arbitration and international commercial mediation by creating an easy, predictable enforcement mechanism for settlement agreements generated through mediation.1 The convention opened for signature on 7 August 2019, with an unprecedented 46 nations signing on the first day, and came into force a mere 13 months later, on 12 September 2020.2 At the time of writing, the instrument had 55 signatories and nine states parties.
Australia signed the Singapore Convention on Mediation on 10 September 2021.3 According to Minister for Foreign Affairs, Marise Payne, the convention is expected to ‘facilitate international trade and promote mediation as an alternative dispute resolution option in cross-border disputes’ while also supporting ‘simplicity, certainty and autonomy for parties in commercial disputes’.4 Attorney-General Michaelia Cash further noted that joining the convention will ‘reduce the time and cost of dispute resolution, thereby enhancing access to justice for individuals and businesses in Australia’, and ‘promote efficiency in the use of judicial resources by encouraging parties to resolve their cross-border commercial disputes outside of courts’.5
The Singapore Convention on Mediation achieves these goals by creating a cross-border enforcement regime that is similar to that established by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘New York Convention’).6 Although the Singapore Convention on Mediation does not address the ‘front end’ of mediation in the same way that arbitration does (in that there is no provision analogous to Article III of the New York Convention dealing with the agreement to mediate), the two instruments both facilitate resolution of the ‘back end’ of their respective processes by identifying a limited number of exclusive grounds upon which an award or mediated settlement agreement can be denied enforcement in the courts of a signatory state.7
The two conventions are essentially identical with respect to two grounds for non-enforcement. Article 5(2)(a)–(b) of the Singapore Convention on Mediation and Article V(2)(a)–(b) of the New York Convention both allow a court—in its discretion—to deny enforcement of an award or settlement agreement arising out of mediation if doing so would be contrary to the public policy of that state or if the subject matter of the award or settlement agreement was not considered capable of arbitration or mediation under the law of the forum state. However, the procedural irregularities outlined in Article 5(1)(a)–(f) of the Singapore Convention on Mediation differ significantly from those outlined in Article V(1)(a)–(e) of the New York Convention, as is necessary due to the various ways that mediation differs from arbitration.8
Although signing the Singapore Convention on Mediation is a significant step forward, Australia still must ratify the convention and enact implementing legislation before the treaty has domestic effect. The latter effort may be assisted by the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation 2018 (‘Model Mediation Law’), which updates the UNCITRAL Model Law on International Commercial Conciliation 2002 in order to take into account the changes in the legal landscape brought about by the Singapore Convention on Mediation.9
The Model Mediation Law can be used by states looking for assistance in drafting implementing legislation. In some ways it appears likely that Australia will use the Model Mediation Law in this way, since Australia implemented the New York Convention by incorporating the UNCITRAL Model Law on International Commercial Arbitration into domestic law through the International Arbitration Act 1974 (Cth).10 However, it might be possible for Australia to give domestic effect to the Singapore Convention on Mediation even without adopting the Model Mediation Law. Tim Schnabel, a former attorney-advisor with the United States Department of State and one of the key negotiators of the Singapore Convention on Mediation, has noted that the drafting choices made by UNCITRAL:
clearly demonstrate that those negotiating the Singapore Convention viewed it as suitable for direct application without implementing legislation, as the simultaneous development of analogous model law provisions was seen as providing an available alternative for countries not yet ready to join a treaty. Thus, the Convention was understood to be able to stand on its own, without the need for legislation like the model law, and the two instruments were developed so that states could choose which one to use. The Convention thus represents a rare instance in which the intent of the negotiating parties provides evidence of a multilateral treaty’s suitability for self-execution (though, of course, not a requirement that it be treated as self-executing).11
This is not the time and place to speculate at length as to how Australia will implement the Singapore Convention on Mediation. However, it is perhaps enough to recognize that there are multiple paths to that outcome and to hope that the process of ratification and implementation will be swift.
2 Initiating Litigation: Service and Jurisdiction
Service and jurisdiction are at the heart of private international law and are often challenging as both a practical and theoretical matter. During the 2020–21 period, Australian courts faced a number of novel issues, including those relating to the effect of COVID-19 on international service; those relating to jurisdiction over matters involving Aboriginal children; those relating to exclusive jurisdiction clauses in the context of class actions and inter-related documents; and those relating to non-judicial forms of dispute resolution (ie, arbitration and mediation).
2.1 COVID-19
Shortly after the World Health Organization’s declaration of a pandemic on 11 March 2020, Australian courts to begin to limit personal contact between litigants, advocates and court personnel to limit the spread of COVID-19.12 Some state courts had already suspended jury trials by 16 March 2020, with the High Court indicating on 17 March 2020 that it would not sit as a full court until at least August 2020.13
These and related actions required Australian courts to consider a variety of procedural concerns brought about by COVID-19 restrictions. While most matters were worked out in domestic settings, courts also had to consider how COVID-19 affected cross-border litigation, especially with respect to international service of process.14 Three cases are of particular interest.
The first, Sanc (Australia) Pty Ltd v Dixon,15 comes from the Supreme Court of Victoria. Here, the key inquiry was whether COVID-19 so disrupted international service of process that personal service was ‘impracticable’.
The substantive dispute involved an attempt by the first plaintiff, Sanc (Australia) Pty Ltd (‘Sanc’), to have shares in the 11th defendant, Cardigan, a company responsible for developing a property in Carlton, Victoria, transferred back to Sanc.16 However, the problem at issue in this decision involved a request by Sanc and the second plaintiff, Tzuo Zern Yang (‘Yang’), the sole director of Sanc,17 to obtain deemed service on a number of defendants located in Singapore18 or, in the alternative, an order for substituted service under r 6.10 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) allowing service by post and email.19 By the time the request was made, Sanc and Yang had already attempted to effect service by enquiring if the solicitors for the Singaporean defendants were authorised to accept service and arranging for a clerk in Singapore to hand-deliver the documents, but those efforts failed, leading Sanc and Yang to conclude that the defendants were attempting to avoid service.20
Sanc and Yang submitted that personal service would be impractical, arguing that delays in serving parties overseas caused by the COVID-19 pandemic justified service by email or post.21 Ultimately, the Supreme Court of Victoria was satisfied that there was a need for urgency in the service process, as a delay in service could ‘materially affect the rights and interest of all of the defendants if the plaintiffs ultimately succeed’, and therefore ordered substituted service in the manner proposed by the plaintiffs.22
In rendering this decision, the Supreme Court of Victoria was careful not to go too far. While accepting that delays associated with COVID-19 made service in this situation ‘impracticable’ (noting that the relevant rules did not require service to be ‘impossible’), the court noted that not all COVID-19-related delays will make service under the Rules ‘impracticable’.23 As a result, each case must be analysed on its facts to determine if orders for substituted service will be made.
The Federal Court of Australia has adopted a slightly different approach to issues involving COVID-19. For example, NPP Australia Ltd v Ripple Labs, Inc,24 involved a request from the applicant, NPP Australia Ltd (‘NPP’), under rr 10.42 and 10.43(2) of the Federal Court Rules 2011 (Cth) (‘FCR’) to serve originating documents on the respondent, Ripple Labs Inc, in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial documents in Civil or Commercial Matters (‘Hague Service Convention’).25 One possible method of service involved the use of ABC Legal to serve documents on the respondent in the US.26 In this case, the Federal Court took judicial notice of an alert on the ABC Legal website that service ‘pursuant to the Hague Service Convention may be delayed or suspended in certain states’, even though the site did not identify any specific delays associated with the US states where service was to be effected.27 Instead, the Federal Court concluded that the uncertain and dynamic nature of the COVID-19 pandemic rendered formal service impracticable and granted substituted service outside of Australia under r 10.24 of the FCR.28
The Federal Court took a very similar approach in Australian Information Commission v Facebook Inc.29 Following an alleged contravention of the Privacy Act 1988 (Cth) by Facebook Inc (located in California) and Facebook Ireland,30 the Australian Information Commission (‘AIC’) sought orders under rr 10.42 and 10.43(2) of the FCR for leave to serve the originating application and other documents on both Facebook entities outside Australia in accordance with the Hague Service Convention.31
The Federal Court again took judicial notice of the COVID-19 pandemic, noting r 10.24 of the FCR allows substituted service ‘if it is not practicable to serve a document on a person in a way required’ by the FCR.32 The Court also recalled that the meaning of ‘practicable’ does not require personal service to be impossible or ‘extraordinarily difficult’ to accomplish,33 and that the application of the definition will ‘depend on the circumstances of the particular proceeding’.34
Applying those principles to the instant case, the Federal Court held that it was not practicable to serve Facebook Inc personally ‘without substantial difficulty’ because the Office of International Judicial Assistance (part of the US Department of Justice and the Central Authority for the United States under the Hague Service Convention) had suspended all attempts to serve process across the country.35 Although Facebook Ireland could still be served under the Hague Service Convention because the High Court of Ireland remained operative,36 the Federal Court held that rapidly evolving circumstances relating to COVID-19 justified substituted service by email to the lawyers for both Facebook Inc and Facebook Ireland.37
2.2 Aboriginal Children
The next item to consider demonstrates the interplay between Australia’s international legal obligations and its unique obligation to protect Aboriginal peoples, in particular an Aboriginal child.
In Lynch & Hagen (No 2),38 the Family Court of Australia considered a dispute between an Aboriginal mother who had relocated to Australia in early 2020 and a Norwegian father who was located in Norway along with their child.39
The child was habitually resident in Norway and proceedings regarding parental rights were already underway in that country.40 However, the mother brought proceedings in Australia, asking the Family Court to assume jurisdiction based on Article 9 of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children (‘Child Protection Convention’), which states:
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(1) If the authorities of a Contracting State … consider that they are better placed in the particular case to assess the child’s best interests, they may either
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request the competent authority of the Contracting State of the habitual residence of the child, directly or with the assistance of the Central Authority of that State, that they be authorised to exercise jurisdiction to take the measures of protection which they consider to be necessary, or
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invite the parties to introduce such a request before the authority of the Contracting State of the habitual residence of the child.
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(2) The authorities concerned may proceed to an exchange of views.
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(3) The authority initiating the request may exercise jurisdiction in place of the authority of the Contracting State of the habitual residence of the child only if the latter authority has accepted the request.41
The mother argued that Australian jurisdiction was vital given that the proceedings involved an Aboriginal child.42 In particular, it was said that Australian courts have a unique and positive obligation of protection to Aboriginal peoples and thus to an Aboriginal child to ensure her best interests are met.43 It was further submitted that Australian courts should have jurisdiction over such matters as the Crown’s obligation to protect Aboriginal people cannot or should not be ceded to foreign courts.44
When considering these matters, the Family Court focused primarily on ss 111CG(2) and (3) of the Family Law Act 1975 (Cth) and the Family Law (Child Protection) Regulations 2003 (Cth) rather than the wording of the Child Protection Convention itself, since those are the instruments by which Article 9 of the Child Protection Convention has been imported into Australian domestic law.45 However, the court looked to Articles 8(2) and 9 of the Child Protection Convention for guidance regarding the circumstances that must exist prior to consideration of a request relating to jurisdiction, since the Family Law Act is silent on such matters.46
The Family Court concluded that Article 8(2) of the Child Protection Convention was satisfied, as the child was an Australian citizen, the mother was present in Australia and the child had a substantial connection with Australia.47 According to Article 9, the court was then required to consider whether an Australian court is ‘better placed’ than a Norwegian court to assess the child’s best interest.48 Only if the Family Court found that to be the case would a request then be made to the Norwegian court asking for permission for an Australian court to exercise jurisdiction.49
Ultimately, the Family Court held that an Australian court would be better placed than a Norwegian court to determine the best interests of an Aboriginal child.50 In so doing, the Family Court found it significant that only an Australian expert would be bound by the Australian Standards of Practice for Family Assessments and Reporting, which contains specific obligations regarding Aboriginal cultural considerations.51 The Family Court also found it relevant that a Norwegian judge might be unaware of expert evidence from Aboriginal individuals as well as anthropologists and social scientists,52 even if the Norwegian court could consider Australian jurisprudence regarding Aboriginal culture and societies.53
2.3 Exclusive Jurisdiction and Forum Selection Clauses
Exclusive jurisdiction clauses are always of interest to private international lawyers, and the years 2020–2021 saw several cases of note. The first, Karpik v Carnival plc (The Ruby Princess) (Stay Application),54 involved the COVID-19 outbreak on the cruise ship The Ruby Princess in March 2020. The tragedy, which was widely reported in the media at the time, resulted in over 900 passengers contracting the disease and 28 deaths.55
The case in question was commenced in the Federal Court of Australia by Ms Susan Karpik, a passenger on The Ruby Princess, against Princess Cruise Lines Ltd (the owner and operator of the ship) and Carnival plc (the time charterer).56 Ms Karpik was acting as representative plaintiff for a class including those who contracted COVID-19 on board The Ruby Princess, executors of the estates of passengers who contracted COVID-19 and consequently died, and those who suffered mental or emotional injuries due to a close family member contracting COVID-19 on board.57
The substantive dispute involved statutory claims under the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) (‘ACL’) as well as allegations of negligence.58 The applicant sought damages, including damages for ‘distress and disappointment’.59
From a private international law perspective, the case was ground-breaking, since it sought to combine plaintiffs from three different jurisdictions—Australia, the United States, and the United Kingdom—claiming under terms and conditions that varied, sometimes significantly, depending on the plaintiff’s location. In total, 1,796 passengers contracted on the Australian terms and conditions, 696 contracted on the US terms and conditions, and 159 contracted on the UK terms and conditions.60 The US and UK contracts for carriage contained jurisdiction and choice of law provisions that required any disputes arising out of the contracts to be litigated in the chosen courts of the US and UK respectively.61 Passengers who contracted using the US terms and conditions were also alleged to have agreed to waive their ability to engage in a class action.62
Applicants from the US and the UK alleged that they were not subject to the US and UK terms and conditions as those provisions were not incorporated into the contract, or, if they were, they were void or otherwise unenforceable.63 The Federal Court agreed, holding not only that the applicants were not subject to the US or UK choice of law provisions, but also that the US additional terms and conditions were not incorporated into the relevant contracts.64 Furthermore, even if those provisions were properly incorporated into the contracts, the Federal Court held that they would be unenforceable under section 23 of the ACL.65
The Federal Court’s discussion of the waiver provisions is particularly intriguing, since it has ramifications both for global (multinational) class actions based in Australia as well as purely domestic Australian class actions. Waivers of class proceedings in arbitration have been upheld by the Supreme Court of the United States, despite significant public policy concerns about the limitation of individuals’ ability to band together, particularly in cases involving regulatory claims and small-value claims that might not be pursued individually.66 However, no known US court has considered whether class proceedings can be waived when the parties have simply entered into a choice of court agreement, either as an exclusive measure or as a primary measure, as in this case, where the dispute resolution clause first selected the US federal District Court for the Central District of California as the venue in which the dispute would be resolved, with arbitration named as an alternate mechanism if the choice of court provision failed.67
In Karpik, the Federal Court of Australia held that the class action waiver, if incorporated in the US contracts for carriage, would not be considered contrary to Pt IVA of the Federal Court of Australia Act 1976.68 The rationale was that Pt IVA allows litigants to opt out of class proceedings, and the waiver provision simply acted as a pre-dispute agreement whereby plaintiffs agreed both to avoid initiating a class proceeding and to opt out of any class proceeding that was initiated by someone else.69
The US plaintiffs also argued that the class action waiver was unconscionable within the meaning of section 21 of the ACL.70 The Federal Court did not reach this issue due to a lack of evidence put forth by the applicant.71
The Federal Court also considered the possible practical effect of the waiver on the litigation, noting that even if the exclusive jurisdiction clauses were properly incorporated into the contract and were enforceable, there were strong reasons for not enforcing the terms of the clauses.72 Here, the primary concern involved the fracturing of litigation that would occur if the US applicants were forced to bring their proceedings in a US court even though the Australian proceedings were already underway.73 Because the class waiver would be effective in US courts, US parties would have to proceed individually, resulting in an estimated 700 individual proceedings.74 This outcome was extremely concerning to the Federal Court, given the risk that US courts would misinterpret Australian law.75
Another key point involved whether the Federal Court was a clearly inappropriate forum in which to hear the claims of the US and UK passengers.76 When considering this matter, the Federal Court took special note of the fact that this was a consumer rather than commercial contract.77
The jurisdictional analysis took place in the context of s 138 of the Competition and Consumer Act 2010 (Cth) (‘CCA’), which confers jurisdiction upon the Federal Court. Although the applicant claimed s 138 prohibited a stay of the Australian action, the Federal Court noted that ‘there is nothing in the text of the provision to justify the implication which the applicant seeks to draw, namely that a court whose jurisdiction is engaged under section 138 is compelled then to exercise that jurisdiction’.78 While the court recognized that Epic Games Inc v Apple Inc79 (discussed below in Section 3.3) underscored the ‘strong public interest in claims under the CCA … being litigated in Australia’ and might in some cases provide a sufficiently ‘strong reason’ not to stay proceedings in Australia, the Federal Court nevertheless rejected the argument that a stay must not be granted due to the effect of section 138 of the CCA.80
The second case involving exclusive jurisdiction clauses, Qantas Airways v Rohrlach,81 considered the effect of an exclusive jurisdiction clause contained in one contractual document on proceedings brought under another, related, contractual document. The case arose out of a dispute between Qantas Airways (‘Qantas’) and Mr Nick Rohrlach, who was an employee of Qantas until March 2021.82 In December 2020, Mr Rohrlach gave notice of his resignation from Qantas, intending to take up a senior position at Virgin Airlines from May 2021.83 However, Qantas argued that Mr Rohrlach’s employment contract precluded him from taking up employment with Virgin until September 2021.84
Mr Rohrlach’s employment agreement with Qantas was governed by the laws of Singapore and provided that Mr Rohrlach could not be ‘engaged, concerned or interested in any business or activity in competition with the Qantas group’ for a period of six months (or, if this was held to be invalid, three months) after his employment with Qantas was terminated.85 When Mr Rohrlach relocated to Japan as part of his employment, Qantas provided him with two new documents—an assignment letter and deed poll—that required him to refrain from working for a competitor of Qantas for a period of six months after his employment with Qantas terminated.86
The key question for the New South Wales Court of Appeal was whether Mr Rohrlach could rely on an exclusive jurisdiction clause found in the employment agreement and assignment letter naming Singapore as the place of litigation when the deed poll signed by Mr Rohrlach had no such provision.87 The Court of Appeal held that although the word ‘exclusive’ indicated that the parties intended to refer any disputes under the employment agreement to the courts of Singapore, the clause did not specify what category of disputes fell within Singapore’s exclusive jurisdiction.88
Because parties to commercial contracts are unlikely to have intended for their disputes to be resolved by different courts, the Court of Appeal held that the exclusive jurisdiction agreement in the employment agreement ‘was intended to extend to any dispute relating to or in connection with the subject matter of the Employment Agreement’.89 The breadth of the language was such that it not only included Mr Rohrlach’s assignment to Japan but also encompassed the obligations placed upon Mr Rohrlach after his employment with Qantas had ceased. As a result, the Court of Appeal held that the proceedings brought by Qantas were within the scope of the employment agreement even though the ‘source of the right’ to restrain Mr Rohrlach from being employed by Virgin was found in the deed poll.90
The Court of Appeal further held that the choice of Japanese law in the deed poll did not prevent the operation of the exclusive jurisdiction clause contained within the employment agreement, since the court in Singapore was considered capable of applying Japanese law should the need arise.91 However, the court did state, obiter, that a different outcome may have arisen had the deed poll contained an exclusive jurisdiction clause or entire agreement clause, since either of those two provisions might well have superseded the employment agreement.92
2.4 Arbitration and Mediation
Non-judicial forms of dispute resolution are used frequently in the international arena, with international commercial arbitration frequently characterized as the preferred means of resolving cross-border business disputes and international commercial mediation reflecting an increasingly popular ‘up and comer’ in the field of private international law.93 Two cases from 2020–2021 are addressed here: one relating to service of originating documents in international commercial arbitration and one relating to jurisdiction of a forum selection clause calling for international commercial mediation.
The first case, Beijing Jishi Venture Capital Fund v Liu arose in the Federal Court of Australia.94 The applicant, Beijing Jishi Venture Capital Fund (‘Beijing Jishi’), had entered into a shareholder agreement in 2012 with the first and second respondents, Mr Liu and Ms Liu (‘Lius’), two Australian citizens married to each other.95 Under the agreement, Beijing Jishi was to invest in a manufacturing company operated by the Lius.96
In 2017, a confirmation letter regarding Beijing Jishi’s rights under the shareholder agreement was executed by Beijing Jishi, Mr Liu and various other entities.97 Ms Liu did not sign the letter, nor did someone sign the letter on her behalf.98 Both the letter and the shareholder agreement contained arbitration clauses referring all disputes to the China International Economic and Trade Arbitration Commission (‘CIETAC’), although the documents contained different addresses for notice.99 The shareholder agreement listed an Australian business address for both Lius, while the letter listed a Chinese business address for Mr Liu.100 The shareholder agreement contained other details regarding notice, in particular stating that notices or communication could be sent via personal delivery, courier, fax or email.101 Both documents were governed by Chinese law.
When a dispute arose in 2017, Beijing Jishi pursued arbitration at CIETAC and provided three addresses for service on the Lius, one of which was the residential address of the Lius.102 The Australian business address listed in the shareholder agreement was not supplied by Beijing Jishi to CIETAC.103
CIETAC’s efforts to serve the Lius at all three addresses failed when the documents were returned for having an incorrect address.104 Beijing Jishi then provided CIETAC with Mr Liu’s Chinese business address, as noted in the 2017 confirmation letter.105 CIETAC then used this address exclusively to serve documents to both Lius.106
The Lius did not appear in the arbitral proceedings, and an award was rendered against them.107 The award stated that service to the Lius at Mr Liu’s business address was effective even though Ms Liu did not sign the confirmation letter.108
The award was subsequently brought to the Federal Court of Australia for enforcement. The key issue involved notice to Ms Liu, who claimed she only became aware of the arbitration because of the enforcement proceedings.
According to ss 8(5)(c) and 8(7)(b) of the International Arbitration Act 1974 (Cth) (‘IAA’), Australian courts may refuse to enforce an arbitral award if proper notice has not been given. In Australia, a strong presumption of regularity exists regarding arbitral processes and decisions.109 Nevertheless, a tribunal’s findings do not bind the court, though they may provide prima facie evidence of certain factual matters.110
According to the Federal Court, the proper notice requirement under s 8(5)(c) of the IAA is met if a party is given a reasonable opportunity to present its case.111 When considering whether notice was proper, the court must consider all of the surrounding circumstances.112 In particular, a court must consider any agreement between the parties regarding the nature of notice in arbitration, since the parties’ agreement forges the foundation of any arbitral award.113
Any reference to the agreement between the parties must be read in accordance with principles found in the governing law, which in this case was Australian law.114 However, Australian law consciously adopts a comparative perspective in matters such as these, since the IAA is meant to give effect to an international instrument—the Convention on the Recognition and Enforcement of Foreign Arbitral Awards—that needs to be construed in a manner that is consistent with other signatory nations.115 As a result, Australian courts need to consider principles of notice reflected in the domestic laws of states parties to the convention.116
In this case, Ms Liu contended that because she was not given a proper notice of the arbitration or the appointment of the arbitrators, s 8(5)(c) of the IAA barred enforcement of the award. Ms Liu also argued that the failure to give proper notice resulted in a breach of natural justice, thus violating the public policy protections reflected in ss 8(7)(b) and 8(7A)(b) of the IAA.
The Federal Court concluded that proper notice under s 8(5)(c) is a matter of procedural fairness, which is not inherently different from s 8(7)(b).117 In other words, regardless of whether the lack of proper notice is framed under ss 8(5)(c) or 8(7)(b), the same standard applies. The Federal Court further explained that there was an obvious link between proper notice and the ability to present one’s case. The court therefore decided that the question of whether a breach of natural justice occurred in connection with the making of an award is a matter of Australian public policy, and Australian principles of natural justice should be applied in the context of international commercial arbitration.118
The court ultimately found that Ms Liu did not receive notice of the arbitration until enforcement proceedings were begun.119 While Mr Liu might have known of the arbitral proceedings, the Federal Court refused to infer that Ms Liu had actual knowledge of the arbitration simply because of her personal and professional relationship with Mr Liu.120 As a result, the court refused to enforce the award against Ms Liu.121
The final case in this series involves a forum selection clause in favour of mediation. As Section I noted, international commercial mediation has become an increasingly important topic in private international law following the promulgation of the Singapore Convention on Mediation, which was signed by Australia in 2021.
However, the drafters of the Singapore Convention on Mediation expressly decided not to address questions relating to the initiation of mediation, instead focusing exclusively on the ‘back end’ of the mediation process (ie, settlement agreements).122 Parties must therefore look to domestic law to determine when mediation may or must be initiated. Bouffard v CDM Australasia Pty Ltd will assist in that regard.123
The plaintiff, Mr Bouffard, initiated proceedings against the defendant, CDM Australasia Pty Ltd (‘CDM’), in the District Court of New South Wales, seeking to recover money that CDM did not deny it owed Mr Bouffard under a loan agreement.124 However, CDM contended that a clause in the loan agreement required mediation to have been attempted in Florida prior to either party initiating any legal proceedings.125
CDM allowed the case to reach its final hearing without raising the issue of the mediation clause—a procedural approach that might normally have raised questions of waiver—but the District Court nevertheless considered whether the mediation clause could raise a barrier to judgment.126 After the parties failed to adduce any evidence regarding differences between the law governing the loan agreement (Florida) and the law of New South Wales, the District Court decided the issue pursuant to the law of New South Wales, applying the presumption of similarity described in Neilson v Overseas Projects Corporation of Victoria Ltd.127
The loan agreement indicated that if the parties could not ‘resolve the Dispute within 10 (ten) Business Days…, the Dispute must be referred to mediation,’ and ‘[i]f there is no resolution of the Dispute within 30 (thirty) Business Days of mediation…, any party may commence legal proceedings.’128 The court construed this language to mean that mediation would only be required when there was an actual dispute.129 Because both parties accepted that CDM owed money to Mr Bouffard, a dispute within the terms of the loan agreement did not exist.130
In reaching this conclusion, the District Court rejected CDM’s argument that it had bargained expressly for the right to mediate disputes between the parties, claiming that it would be ‘uncommercial’ to read the mandatory reference to mediation as requiring mediation in these circumstances.131 It will be interesting to see whether this type of interpretation is adopted by other courts, since it appears to be an anti-mediation bias that instruments like the Singapore Convention on Mediation are meant to eliminate.132
3 Restraint of Proceedings
The 2020–21 period also saw Australian courts being asked to address matters relating to various types of restraints on proceedings. The cases discussed in this section consider the effect of COVID-19 on such requests and parse through various provisions of the Service and Execution of Process Act 1992 (Cth), the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law.
The first case to consider focuses on the effect of the COVID-19 pandemic on applications to strike out or dismiss proceedings brought in a jurisdiction contrary to a contract between commercial parties. RCD Holdings Ltd v LT Game International (Australia) Ltd involved a contract between ePayment Solutions Pty Ltd (‘ePayment Solutions’), RCD Holdings Ltd (‘RCD Holdings’) and LT Game International (Australia) Ltd (‘LT Game International’) regarding the promotion of a computer betting game known as Knockout Baccarat.133
In 2017, ePayment Solutions alleged a breach of contract by LT Game International and brought suit with RCD Holdings against LT Game International in the Supreme Court of Queensland.134 LT Game International subsequently sought have the Queensland proceedings stayed or struck out in favour of an action in Macau.135
The parties agreed that the contract contained an exclusive jurisdiction clause naming Macau as the place of litigation.136 However, ePayment Solutions and RCD Holdings submitted that enforcement of the clause could negatively affect the administration of justice because of the international travel ban that had been imposed by countries seeking to stem the spread of COVID-19.137
The Supreme Court determined that LT Game International should be allowed to enforce the exclusive jurisdiction clause because there was limited evidence of any detrimental impact of the pandemic of the administration of justice in Macau.138 Nevertheless, the court indicated it would be willing to exercise its discretion and allow the claim to be brought in an Australian court if the impact of the pandemic rose to a level such that the plaintiffs were prevented from bringing their claim in Macau, though the circumstances did not at that point rise to that level.139
The second case to consider is Joshan v Pizza Pan Group Pty Ltd, in which the New South Wales Court of Appeal corrected a misconception among inferior courts as to the standard of satisfaction required to grant proceedings under s 20 of the Service and Execution of Process Act 1992 (Cth) (‘SEPA’).140 Their Honours also clarified the significance of non-exclusive jurisdiction clauses.
The case involved a request from the respondent, Pizza Pan Group Pty Ltd (‘Pizza Pan’), for damages pursuant to a franchisee guarantor deed.141 The applicants, Mr Ranjodh Singh Joshan and Ms Jasbir Kaur Joshan (‘the Joshans’), applied to the New South Wales District Court for a stay of proceedings under s 20 of SEPA.142 The application was initially dismissed, but the New South Wales Court of Appeal allowed the appeal on the grounds that the primary judge set the standard of satisfaction too high and erroneously elevated the significance of a non-exclusive jurisdiction clause in the deed agreement.143
According to the Court of Appeal, the primary judge’s first error was requiring the Joshans to demonstrate ‘a clear and compelling basis’ for the stay of proceedings.144 The standard was first adopted judicially by the Supreme Court of South Australia,145 although the Supreme Courts of Victoria146 and Queensland147 declined to follow the South Australian approach. However, a number of inferior courts in New South Wales did adopt the South Australian standard.148
After considering the various authorities and the legislation itself, the Court of Appeal ruled that the ‘clear and convincing’ standard was inconsistent with the SEPA.149 The court speculated that the mistake may have arisen from a conflation of the common law forum non conveniens standard from Voth v Manildra Flour Mills,150 and s 20 of the SEPA.151 The Court of Appeal concluded that the appropriate standard for a s 20 SEPA stay order was not ‘a clear and compelling basis’ but instead ‘on the balance of probabilities’.152
The second error identified by the Court of Appeal involved an inappropriate elevation of the significance of the deed’s non-exclusive jurisdiction clause by the primary judge.153 The primary judge had relied on a passage from Palmer J’s decision in Asciano Services Pty Ltd v Australian Rail Track Corp Ltd (‘Asciano’), which described non-exclusive jurisdiction clauses as expressions of party intent and therefore of great significance.154 However, the Court of Appeal unanimously held Asciano’s characterization of non-exclusive jurisdiction clauses to be bad law, noting that the sole purpose of non-exclusive jurisdiction clauses is to prevent parties from arguing that an expressed forum lacks jurisdiction or is inappropriate.155 Because non-exclusive jurisdiction clauses do not prevent a foreign defendant arguing that a particular forum is inconvenient, they carry little weight in s 20 SEPA stay application.156
The third case in this category is Epic Games, Inc v Apple Inc, which saw the Full Court of the Federal Court of Australia overturn an order of the Federal Court of Australia involving a stay of proceedings.157 The matter began when Epic Games Inc (‘Epic’) initiated proceedings in the Federal Court of Australia against Apple Inc (‘Apple’) alleging anti-competitive and unconscionable conduct in contravention of various provisions of Pt IV of the Competition and Consumer Act 2010 (Cth) (‘CCA’) and s 21 of the Australian Consumer Law (‘ACL’).158 The contract between the parties included an exclusive jurisdiction and choice of law clause stating:
Any litigation or other dispute resolution between [Epic] and Apple arising out of or relating to this Agreement, the Apple Software, or [Epic’s] relationship with Apple will take place in the Northern District of California…. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of California, except that body of California law concerning conflicts of law.159
The key issue for the Full Court was whether the exclusive jurisdiction clause offended Australian public policy to such an extent that ‘strong reasons’ existed to refuse a stay of proceedings.160 Epic contended that the statutory provisions it sought to enforce were mandatory and thus required an Australian forum to ensure their enforcement.161 In this instance, the Full Court held there were strong reasons not to grant a stay of proceedings, thereby overturning the primary judge’s decision.162
The primary judge listed several reasons to refuse to grant a stay of proceedings, including: the fact that competition law is a matter of public interest;163 the nearly exclusive jurisdiction of the Federal Court of Australia and the High Court of Australia described in Pt IV of the CCA;164 the need for a foreign court to rely on expert evidence to decide difficult questions of Australian competition law; and the fact that the Federal Court and High Court have a key role in deciding serious issues of Australian public policy.165 However, the Full Court held that the primary judge failed to give sufficient weight to these considerations.166
The Full Court also considered the primary judge’s decision to reject several public policy considerations as irrelevant to the decision to stay proceedings.167 For example, the primary judge was not swayed by arguments that the regulator only could intervene in proceedings convened in Australia;168 that the regulator could only rely on the findings of proceedings in Australia as evidence;169 or that particular statutory remedies would only be available in Australia.170 However, the Full Court found these concerns compelling.171
The Full Court also identified a number of additional public policy reasons that cumulatively militated towards refusing to grant a stay of proceedings.172 These included the intent of Parliament to promote competition in Australia through Pt IV of the CCA, which gave the Federal Court of Australia exclusive jurisdiction over claims arising under that part of the legislation, thereby protecting the health of the Australian economy and ultimately the wellbeing of Australian consumers.173 Notably, the Full Court found that these public interests were not adequately protected by the ability of the Australian Competition and Consumer Commission to initiate proceedings itself.174
Finally, the Full Court rejected the allegation that Epic’s agreement to the exclusive jurisdiction clause meant that it could not subsequently complain about its effect, particularly since the proceedings could affect a number of third parties subject to the same kind of contractual regime that applied to Epic.175 Because the Federal Court has broad remedial power under the CCA, the proceedings had a significance that extended beyond Epic’s interests.176 As a result, the Full Court found strong reasons to refuse to grant the stay of proceedings.177
4 Conclusion
In the last iteration of this survey, the authors bemoaned the fact that private international law was not a compulsory course in any law school in Australia, with the exception of Sydney Law School.178 At that time, less than half of the law schools in the country even offered a course in private international law, a situation that has not changed in the intervening years.179
In 2020, Michael Douglas published a detailed analysis in the Melbourne International Law Review describing why private international law is a critical part of 21st century legal practice and outlining how private international law might be better integrated into the Australian law curriculum.180 While his is not the only possible way to proceed, the Office for Learning and Teaching of the Australian Government and the Council of Australian Law Deans have both recognised the need to internationalise the Australian legal curriculum.181
The push toward an improved understanding of the importance of private international law may be assisted by the recent investiture of Andrew Bell—a world-renowned private international lawyer—as the Chief Justice of the New South Wales Supreme Court. Through his judicial and extrajudicial work, Chief Justice Bell may be able to promote the status of private international law as a practical and academic specialty.
While this chapter is only a small part of a Year Book that focuses on all aspects of international law, both public and private, hopefully the above analysis has provided useful food for thought. This is a fascinating area of law that will only become more important in the future.
United Nations Convention on International Settlement Agreements Resulting from Mediation, opened for signature 7 August 2019, UNTS, (entered into force 12 September 2020) (‘Singapore Convention on Mediation’); United Nations, ‘United Nations Convention on International Settlement Agreements Resulting from Mediation’, United Nations Treaty Collection (Webpage, 14 March 2022) <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXII-4&chapter=22&clang=_en> (‘United Nations Treaty Collection’).
Ibid; Timothy Schnabel, ‘The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements’ (2019) 19(1) Pepperdine Dispute Resolution Law Journal 1, 1–2.
United Nations Treaty Collection (n 2); Attorney-General’s Department, Australia signs the Singapore Convention on Mediation (Web page, 14 March 2022) <https://ministers.ag.gov.au/media-centre/australia-signs-singapore-convention-mediation-30-09-2021> (‘AGD’).
AGD (n 3).
Ibid.
United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature on 10 June 1958, 330 UNTS 38 (entered into force 7 June 1959) (‘New York Convention’); Schnabel (n 2) 1.
Cf New York Convention (n 6) art V; Singapore Convention on Mediation (n 1) art 5; see also New York Convention (n 6) art II s 1 (‘Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.’); SI Strong, ‘Realizing Rationality: An Empirical Assessment of International Commercial Mediation’ (2016) 73(4) Washington and Lee Law Review 1973, 2056.
Notably, Article 5 of the Singapore Convention on Mediation does not use the term ‘recognition or enforcement’ of a settlement agreement, as Article V of the New York Convention does with arbitral awards. This discrepancy arose as a result of semantic difficulties in drafting, though the Singapore Convention on Mediation does contemplate relief akin to recognition as well as enforcement. Schnabel (n 2) 38 (noting why the Singapore Convention uses the term ‘relief’ in Article 5 rather than ‘recognition and enforcement’).
United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation 2018, United Nations Commission on International Trade Law (Web page, 14 March 2022) <https://uncitral.un.org/en/texts/mediation/modellaw/commercial_conciliation#:~:text=The%20Model%20Law%20is%20designed,was%20initially%20adopted%20in%202002.>.
United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration Law (1985), with amendments as adopted in 2006, United Nations Commission on International Trade Law (Web page, 14 March 2022) <https://uncitral.un.org/en/texts/arbitration/modellaw/commercial_arbitration>.
Timothy Schnabel, ‘Implementation of the Singapore Convention: Federalism, Self-Execution, and Private Law Treaties’ (2019) 30(2) American Review of International Arbitration 265, 281 (footnotes omitted).
Joe McIntyre, Anna Olijnyk and Kieran Pender, ‘Courts and COVID-19: Challenges and Opportunities in Australia’, AusPubLaw (Web Page, 4 May 2020) <https://auspublaw.org/2020/05/courts-and-covid-19-challenges-and-opportunities-in-australia/>; For a timeline of the Federal Court response to COVID, see Federal Court of Australia, ‘COVID-19: Court Updates’, Federal Court of Australia (Web Page, 14 March 2022). <https://www.fedcourt.gov.au/covid19/covid-19>.
McIntyre, Olijnyk & Pender (n 13). The first matter the High Court heard entirely by telephonic means was Cumberland v The Queen [2020] HCA 21.
SI Strong, ‘Procedural Law in a Time of Pandemic: Australian Courts’ Response to COVID-19’ in Cláudio Jannotti da Rocha, Flávia Fragale Martins Pepino and Rafael Lara Martins (eds), Legal Responses to the Coronavirus Pandemic (Lex Magister, 2020) 203; see also Judicial College of Victoria, ‘Coronavirus Jurisprudence’, Judicial College of Victoria (Web page, 14 March 2022), <https://www.judicialcollege.vic.edu.au/resources/coronavirus-jurisprudence>.
[2020] VSC 872 (‘Sanc’).
Ibid [3]–[4].
Ibid [4].
Ibid [11]–[12].
Ibid [13].
Ibid [28], [31].
Ibid [20].
Ibid [34], [100].
Ibid [35], [37].
(2020) 157 IPR 303 (‘Ripple Lab Case’).
Ibid [15]; Federal Court Rules 2011 (Cth) (‘FCR’); Hague Convention on the Service Abroad of Judicial and Extrajudicial documents in Civil or Commercial Matters, opened for signature 15 November 1965, HCCH 14 (entered into force 10 February 1969) (‘Hague Service Convention’).
Ripple Lab Case (n 24) 307 [22].
Ibid 308 [23].
Ibid 310–11 [36], 312–3 [Annexure ‘Orders Made on 21 August 2020’].
[2020] FCA 531 (‘Facebook’).
Ibid [1].
Ibid [4].
Ibid [67].
Ibid [67], citing Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 [10].
Facebook (n 29) [68], citing Kosmos Capital Pty Ltd v Turiya Ventures LLC [2019] FCA 528 [50].
Facebook (n 29) [70].
Ibid [71].
Ibid [75]–[76].
[2020] FamCA 727.
Ibid [6].
Ibid [8]–[9].
Ibid [10]–[11]; Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children, opened for signature 19 October 1996, HCCH 34 (entered into force 1 January 2002), Art 9 (‘Child Protection Convention’).
Lynch & Hagen (No 2) (n 38).
Ibid [31].
Ibid.
Ibid [11], [15].
Ibid [16].
Ibid [16], [18]–[20].
Ibid [21].
Ibid [22].
Ibid [54].
Ibid [43]–[44].
Ibid [53].
Ibid [51]–[53].
[2021] FCA 1082 (‘Karpik’).
Josh Taylor, ‘Ruby Princess sparks Covid concerns after a dozen passengers reportedly test positive in the US’, The Guardian (online, 7 January 2022) <https://www.theguardian.com/australia-news/2022/jan/07/ruby-princess-sparks-covid-concerns-after-a-dozen-passengers-reportedly-test-positive-in-us>.
Karpik (n 54) [2].
Ibid [3].
Ibid [4].
Ibid [8].
Ibid [9].
Ibid [10]–[11].
Ibid [10].
Ibid [19].
Ibid [20]. No issue arose with incorporation of the UK choice of law provisions. Ibid [30].
Ibid [21].
See, eg, Epic Systems Corp v Lewis, 138 S Ct 1612 (2018) (approving use of class waivers in labor arbitration); American Express Co v Italian Colors Restaurant, 570 US 228 (2013) (approving use of class waivers in antitrust arbitration); AT&T Mobility LLC v Concepcion, 563 US 333 (2011) (approving use of class waivers in consumer arbitration); SI Strong, Class, Mass, and Collective Arbitration in National and International Law (Oxford University Press, 2013) 205–22.
Karpik (n 54) [10].
Ibid [119], [121]; see also Federal Court of Australia Act 1976 (Cth) s 33J.
Karpik (n 54) [108].
Ibid [146].
Ibid [153]–[154].
Ibid [331].
Ibid [333].
Ibid [334].
Ibid [336], citing Epic Games, Inc v Apple Inc [2021] FCAFC 122, [110] (‘Epic Games’).
Karpik (n 54) [161].
Ibid [179], [182]–[183].
Ibid [272], following the reasoning in Nicola v Ideal Image Development Corporation Inc [2009] FCA 1177 and Epic Games (n 75).
Epic Games (n 75).
Karpik (n 54) [276]–[277].
[2021] NSWCA 48.
Ibid [3].
Ibid.
Ibid [4].
Ibid [17]–[18].
Ibid [23], [34].
Ibid [56].
Ibid [60]–[61].
Ibid [64]–[65], [69].
Ibid [73]–[74], [91]–[93].
Ibid [80]–[81].
Ibid, [76]–[77].
Gary B Born, International Commercial Arbitration (Wolters Kluwer, 2014) 61–3, 68, 78, 99; see also Section I, above.
[2021] FCA 477.
Ibid [57].
Ibid [57]–[58].
Ibid [64].
Ibid [65].
Ibid [58]–[59], [64].
Ibid [58], [64].
Ibid [58].
Ibid [68]–[69].
Ibid.
Ibid [71]–[72].
Ibid [76]–[77].
Ibid [78].
Ibid [83]–[85].
Ibid.
Ibid [26].
Ibid [49]–[51].
Ibid [27].
Ibid [30].
Ibid [14].
Ibid [38]–[39].
Ibid [40]–[41].
Ibid.
Ibid [44].
Ibid [45]–[48].
Ibid [92].
Ibid [109].
Ibid [155]–[157].
Strong (n 7) 2056.
[2021] NSWDC 124 (‘Bouffard’).
Ibid [1], [57].
Ibid [2].
Ibid [3].
Ibid [49], [51], citing Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331, 343 [16], 353 [45], 370 [116].
Bouffard (n 123) [27].
Ibid [58].
Ibid.
Ibid [32], [56]–[60].
Strong (n 7) 2067. See above Section I.
[2020] QSC 318, [3]–[5].
Ibid [1], [9].
Ibid [13], [15].
Ibid [15].
Ibid [33], [35].
Ibid [71].
Ibid [70], [74].
(2021) 363 FLR 58, 62 [8] (‘Joshan’).
Ibid 61 [2].
Ibid 62 [8].
Ibid 63 [9]–[10], [13].
Ibid 63 [9].
Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54 (Olsson J), cited in Joshan (n 141) 63 [11].
Boart Longyear Pty Ltd v Coburn & Crocker (1988) VSC, cited in Joshan (n 141) 63 [12], 77 [75].
St George Bank Ltd v McTaggart [2003] 2 Qd R 568 [17] (McPherson JA), cited in Joshan (n 141) 63 [12], 77 [75].
Goh v BPH Energy Ltd [2019] NSWDC 559 [15], Wicomm Pty Ltd v CJ-Milne Solutions Pty Ltd [2015] NSWDC 413 [27], Toyota Material Handling Australia Pty Ltd v Cardboard Collection Service Pty Ltd [2020] NSWDC 667 [16]–[17], cited in Joshan (n 141) 63 [11].
Joshan (n 140) 76 [72], 77 [77].
(1990) 171 CLR 538.
Joshan (n 140) 71 [48], 76 [71], 77 [77].
Ibid 63 [10], 75 [63].
Ibid 63 [13], [15], 80 [92].
[2008] NSWSC 652 [18], cited in Joshan (n 141) 78 [81], 80 [92].
Joshan (n 140) 78–79 [81]–[83], 79–80 [86]–[88].
Ibid 79 [86], 80 [92]. See also ibid 74 [61], quoting BP plc v Aon Ltd [2006] 1 Lloyd’s Rep 549 (Sir Anthony Colman).
Epic Games (n 75).
Ibid [2].
Ibid [10].
Ibid [11(c)], citing Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418, 445.
Epic Games (n 76) [46].
Ibid [20].
Ibid [54].
Ibid [35]–[38], [55], [116]–[121].
Ibid [57].
Ibid [51]–[52].
Ibid [63].
Ibid [60].
Ibid.
Ibid [62].
Ibid [64].
Ibid [86].
Ibid [99]–[104].
Ibid [105]–[109].
Ibid [65]–[67].
Ibid [65]–[67].
Ibid [84]–[86].
Andrew Lu et al, ‘Developments in Australian Private International Law 2018–2019’ (2020) 37 Australian Year Book of International Law 568, 594.
Ibid. See also Michael Douglas, ‘Integrating Private International Law into the Australian Law Curriculum’ (2020) 44 Melbourne International Law Review 98, 108.
Douglas (n 179).
Ibid 99.