Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd

(2012) 43 WAR 91; [2012] WASCA 50

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Arbitration
2. › International commercial arbitration
3. › Enforcement of awards
4. › Leave to enforce award as judgment
5. › Whether order granting leave is final or interlocutory
6. › Commercial Arbitration Act 1985 (WA), s 33
1. Appeal
2. › New points on appeal
3. › Whether appellant should be permitted to raise jurisdictional challenge not raised below
4. › Whether in the interests of justice
5. › Whether prejudicial to respondent
1. Arbitration
2. › International commercial arbitration
3. › Choice of arbitral law
4. › Whether parties can exclude UNCITRAL Model Law from international commercial arbitration agreement
5. › International Arbitration Act 1974 (Cth), s 21 (pre-2010 amendment)
1. Statutes
2. › Retrospective operation
3. › Whether amendments to International Arbitration Act 1974 (Cth) apply to arbitrations underway at commencement
4. › Distinction between substantive and procedural provisions
5. › Whether repeal and substitution of s 21 affected accrued rights
6. › International Arbitration Amendment Act 2010 (Cth)

Quick Take

Parties to international commercial arbitration agreements entered into before 6 July 2010 that expressly adopted the Commercial Arbitration Act 1985 (WA) as the curial law validly opted out of the UNCITRAL Model Law in its entirety, including its enforcement provisions, and the 2010 amendments to the IAA did not retrospectively alter that position for arbitrations already underway. An order granting leave to enforce an arbitral award under s 33 of the CAA is a final order, not interlocutory. A party that fails to raise a jurisdictional challenge before the primary judge will generally not be permitted to raise it for the first time on appeal where the respondent would be prejudiced by the loss of opportunity to seek alternative relief.