In the matter of Jamac Excel Logistics Pty Ltd ACN 165 961 268) [2020] NSWSC 1036

In the matter of Jamac Excel Logistics Pty Ltd ACN 165 961 268) [2020] NSWSC 1036

The first defendant's contention about the arbitration being conducted in accordance with Chinese law did not appear to be a ground for refusing enforcement under s 8 of the International Arbitration Act 1974 (Cth), and in any event was not supported by a reading of the award. The evidence showed that the other conditions for enforcement were satisfied, so the award should be enforced as if it were a judgment of the Court. It was also appropriate to grant leave to amend to add winding up claims because, in view of the judgment against the first defendant, it was strongly arguable that the company was insolvent and the winding up question should be determined sooner rather than later.

Jurisdiction
Australia
Judgment Date
06 August 2020
Procedural Posture
Application Under S 8 of the International Arbitration Act 1974 (cth) to Enforce a Foreign Arbitral Award, With Interlocutory Application for Leave to Amend to Seek Winding Up Orders / Ex Tempore Judgment and Orders
Outcome
The Court granted leave to enforce the foreign arbitral award as if it were a judgment of the Court and granted leave to amend the originating process to add winding up claims.
Legal Topics
['enforcement of Foreign Arbitral Award' 'international Arbitration Act 1974 (cth) S 8' 'winding Up' 'leave to Amend Originating Process']
['commercial Arbitration' 'corporations'] ['enforcement of Foreign Arbitral Award' 'international Arbitration Act 1974 (cth) S 8' 'winding Up' 'leave to Amend Originating Process']

Case Brief

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Procedural Posture

Application Under S 8 of the International Arbitration Act 1974 (cth) to Enforce a Foreign Arbitral Award, With Interlocutory Application for Leave to Amend to Seek Winding Up Orders / Ex Tempore Judgment and Orders

Legal Issues

  1. 1 ['Whether the plaintiff should have leave under s 8 of the International Arbitration Act 1974 (Cth) to enforce the CIETAC award as if it were a judgment of the Court.' "Whether the first defendant's contention about the arbitration being conducted according to Chinese law provided a basis to refuse enforcement." 'Whether the plaintiff should have leave to amend the originating process to add claims seeking winding up orders against the first defendant.']

Ratio Decidendi

The first defendant's contention about the arbitration being conducted in accordance with Chinese law did not appear to be a ground for refusing enforcement under s 8 of the International Arbitration Act 1974 (Cth), and in any event was not supported by a reading of the award. The evidence showed that the other conditions for enforcement were satisfied, so the award should be enforced as if it were a judgment of the Court. It was also appropriate to grant leave to amend to add winding up claims because, in view of the judgment against the first defendant, it was strongly arguable that the company was insolvent and the winding up question should be determined sooner rather than later.

Court Disposition

The Court granted leave to enforce the foreign arbitral award as if it were a judgment of the Court and granted leave to amend the originating process to add winding up claims.

Orders

  • ['The plaintiff has leave under s 8 of the International Arbitration Act 1974 (Cth) to enforce the award dated 26 April 2019 issued to the Plaintiff and the First Defendant by Mr Ningjie Nu of the China International Economic and Trade Arbitration Commission (reference CC18626) as if it were a judgment of the...