Updated: Internationalising the International Arbitration Act

This article has been updated following Australia becoming a signatory to the Mauritius Convention on 18 July 2017, discussed below.

Last week the Civil Law and Justice Legislation Amendment Bill 2017 (Cth) (Bill) was introduced into the Senate and received its second reading speech.  The object of the Bill is to ‘make minor and technical amendments to civil justice legislation’ and it proposes amendments to various Commonwealth legislation including the International Arbitration Act 1974 (Cth) (IAA).  A closer inspection of the proposed amendments to the IAA reveals that the relevant amendments to the IAA are anything but ‘minor and technical’.

Native Title - individual 'power of veto' jeopardises ILUAs

WHO SHOULD READ THIS

• All proponents and Traditional Owners who are a party to an existing Indigenous Land Use Agreement (ILUA) or intend to enter into an ILUA.

THINGS YOU NEED TO KNOW

• There has been a change in law - McGlade v Native Title Registrar [2017] FCAFC 10 (McGlade). All applicants who comprise a ‘registered native title claimant’ must execute an ILUA for that ILUA to be effectively registered.
• Until and unless this decision is overturned by appeal or legislative change, the impact is far reaching in respect of:
  • registered ILUAs and the validity of future acts done under them; and
  • the registration of future ILUAs. 

WHAT YOU NEED TO DO

• For those in the process of obtaining or registering an ILUA  – ensure that all named applicants execute the ILUA.
• For those who are party to an existing ILUA – review your agreements and consider your position.  Importantly, did all of the applicants execute the agreement?

Background

In 2010, the Federal Court in QGC Pty Ltd v Bygrave (No.2) [2010] FCA 1019 held that an ILUA could proceed to registration with the National Native Title Tribunal (NNTT) without the signatures of all named applicants.

Since then, it has been common practice of the NNTT to accept ILUAs for registration where some, but not all, of the applicants have executed the agreement (and, of course, the balance of the registration requirements have been met).

The Full Federal Court in McGlade has now reversed this position.  An ILUA now cannot be registered unless it is signed by each and every named applicant.

This decision has potentially far reaching impacts on parties operating under ILUAs without the signature of all applicants and, critically, on parties seeking the registration of ILUAs that have been executed by some but not all of the named applicants.

The decision

The Court declared that four ILUAs lodged for registration with the NNTT were not valid ILUAs for the purposes of the Native Title Act 1993 (NT Act), because some of the named applicants who comprise the ‘registered native title claimant’ had not executed the agreement (even as a result of death).

The Court found that:

• for the agreement to be validly registered as an ILUA, all individuals comprising the ‘registered native title claimant’ must sign it;
• resolutions of the community do not have the effect of overriding that fundamental principle;
• if an applicant unreasonably refuses to execute an ILUA against the wishes of the claim group, that applicant can only be removed by application of the claim group under section 66B of the NT Act; and
• deceased applicants must also be removed and replaced under section 66B prior to the making of the ILUA.

Final thoughts

‘While this may mean that any one of the persons who jointly comprise a registered native title claimant can effectively veto the implementation of a negotiated area agreement by withholding their signature to the agreement, that is what the NTA recognises as possible. Whether the NTA should provide for some mechanism, apart from s 66B or in addition thereto, for responding to the types of agreement making issues raised in these proceedings, is a policy issue for the Parliament to consider, not this Court.’

-The Honourable North and Barker JJ (at para 265)
(our emphasis)

We expect this decision will be appealed.  The unanswered questions raised threaten the validity of persisting future acts.  Legislative amendments to overcome these issues have been on the table for some time.  No doubt McGlade will act as a catalyst in that debate.

For more enquiries, please contact:

Dominic McGann
Peter Stokes
Tim Hanmore
Liam  Davis

Masters of their own destiny - Court upholds arbitration agreement between Woolworths and Lowe's

The recent decision of the Federal Court in WDR Delaware Corporation v Hydrox Holdings Pty Ltd1 affirms the courts’ willingness to uphold arbitration agreements, consistent with Australia’s international convention obligations, judicial recognition of the efficiency of arbitration, and Australia’s reputation as a sophisticated jurisdiction in which to conduct arbitration.

Santos Ltd v Fluor Australia Pty Ltd [2016] QSC 129

Case note

In the recent Supreme Court of Queensland decision of Santos Ltd v Fluor Australia Pty Ltd [1], Justice Douglas endorsed the courts’ positive approach to giving effect to alternative dispute resolution (ADR) clauses even where one party seeks a litigated outcome.

In this case, Santos contracted Fluor to perform work on its GLNG Project near Gladstone.  Santos became concerned about the amount claimed by Fluor under the contract, which exceeded the budget estimate by over $1.85 billion. 

Recognition and enforcement of foreign judgments in Australia - Part 3

Enforcement of the foreign judgment

In our previous posts we examined the two ways to have a foreign judgment recognised in Australia: under the Foreign Judgments Act 1991 (Cth) and under the common law.  Once the foreign judgment is recognised, the next step is to get the money owing under the judgment.

In this post we will explore the steps the judgment creditor may take to enforce the judgment.

Recognition and enforcement of foreign judgments in Australia - Part 2

Recognition under the common law

In our previous post, we examined the process for recognising foreign judgments in Australia under the Foreign Judgments Act 1991 (Cth) (Act).  While this is the easiest way to get a foreign judgment registered in Australia, it is only available for certain judgments. 

For judgments that are not registrable under the Act, a judgment creditor must have the judgment recognised under the common law.  In this post, we examine that process and the positions of the judgment creditor (the person enforcing the judgment) and the judgment debtor (the person against whom the judgment is being enforced).

Recognition and enforcement of foreign judgments in Australia

Registration of foreign judgments

For a plaintiff seeking to enforce a judgment, it is not uncommon for a defendant’s assets to be spread across the globe, creating both opportunities and problems.  The opportunity lies in accessing potential sources of assets to satisfy the judgment.  The problem is that a company or person might have no assets in the plaintiff’s home jurisdiction, requiring the judgment to be enforced overseas.

The steps involved in accessing a defendant’s Australian assets to satisfy the judgment are recognition and enforcement.  We will explore these steps further in a series of upcoming posts.

In this first post we look at one method of recognition: registration of the foreign judgment under the Foreign Judgments Act 1991 (Cth) (Act).