Melbourne Office - PO Box 452, COLLINS STREET WEST VIC 8007 AUSTRALIA
Sydney Office - GPO Box 2506, SYDNEY NSW 2001 AUSTRALIA
Telephone: Melbourne Office - +61 3 9629 3709 Sydney Office - +61 2 9233 2600
Facsimile: Melbourne Office - +61 3 9629 3217 Sydney Office - +61 2 9233 3044
Email:adr@arbitrator.com.au Internet:http://www.arbitrator.com.au

User Tools

Site Tools


Sidebar

Technology Arbitrators, Expert Determiners and Mediators

enforcement_of_an_domestic_arbitration_award

Is it possible to appeal an arbitral award?

Under the old Commercial Arbitration legislation an appeal was available as a right on, amongst other things, an error of law.

Under the new UNCITRAL Commercial Arbitration framework an appeal is now only available on very limited grounds.

In that regard see by way of example Commercial Arbitration Act 2010 (NSW) s16(9), Commercial Arbitration Act (NSW) 2010 s34 and Commercial Arbitration Act 2010 (NSW) s34A.

For a leading case under UNCITRAL Commercial Arbitration framework in relation to an appeal with respect to jurisdiction please see

Please note that our Mr White was the arbitrator in that dispute.

Legislation

Cases

2017

2016

2015

2014

2013

2012

2011

2010

2009

    • The applicable law is not in doubt.
    • Section 38(4) of the Act provides that an appeal against an arbitral award may only be made with consent or with the leave of this Court.
    • Under sub-s (5) this Court must not grant leave unless it considers that two matters have been established:
      • that, having regard to all of the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more parties to the arbitration agreement; and
      • that there is a manifest error of law on the face of the award.
    • It is clear that leave to appeal will only be granted in respect of an error of law which appears on the face of the relevant award.
    • The relevant principles have been discussed in a number of cases and there is no dispute about them. In Anaconda Operations v. Fluor Australia Pty Ltd,[1] Dodds-Streeton J, as she then was, summarised the relevant principles in the following way:
      • It is well established that the legitimate role of the Court in applications for leave to appeal under s.38(5) of the Act is very circumscribed.
      • The legislation restricts the court's jurisdiction to review arbitral awards in recognition of the importance of speedy finality in that context.
      • Nevertheless, the power to review is enlivened by an obvious departure from settled principles of law.
      • The basic principles relevant to the determination of an application for leave to appeal pursuant to s.38(5) of the Act were conveniently summarised by Debelle J in Leighton Contractors Pty Ltd v South Australian Superannuation Fund Investment Trust as follows -
        • there is no appeal from an arbitrator on a question of fact;
        • while s.38 provides that an appeal shall be from the award of an arbitrator on a question of law, leave must nevertheless be obtained unless both parties consent to the appeal;
        • leave will only be granted in circumstances prescribed in s.38(5);
        • the applicant for leave must satisfy both para(a) and para(b) of 38(5);
        • the epithet `manifest' in the expression `manifest error of law' is used to indicate an error which is evident or obvious rather than one which is arguable;
        • if the court determines that there is no manifest error of law, an application based on this ground fails;
        • if the court is satisfied that a manifest error of law exists, a question arises whether the court should, in the exercise of its discretion, grant leave; and
        • assuming that there is not a manifest error of law on the face of the award, it may be argued that there is strong evidence that the arbitrator made an error of law and the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law.
        • This requirement indicates that the question should be one of wider and greater importance than, for example, the construction of a one-off clause in the context of the particular agreement between the parties.
    • Notwithstanding that there are arguable technical breaches of the warranties, leave to appeal should not be given unless a finding of breach could substantially affect the rights of the parties.
    • In my view, that is not the case.
    • In his interim award, the arbitrator made it plain that, even if a breach of warranty was established, he would nevertheless have found in favour of the vendor.
    • This is because the damages case put forward by the purchaser was not established on any view of the facts.
    • In that regard, the arbitrator said in paragraph 78 of the interim award, in my view correctly, that:
      • The loss that would naturally flow, and this is a contractual claim, from the fact that money had to be injected into the business for a period of months, would be the cost of obtaining the added finance over the relevant period.
      • Despite the arbitrator making reference to this as the most likely loss early in the arbitration, at no stage was any exercise carried out to demonstrate the cost of providing the extra income.
      • On any view, it would not be a large sum of money.
      • But a greater loss is claimed.
      • Reasons were then given by the arbitrator as to why the greater loss claimed was not proved.
      • There is nothing evidently or obviously wrong about those reasons which, in any event, involve wholly or substantially questions of fact and not law.
      • The purchaser elected to pursue a particular damages claim in the face of strong indications by the arbitrator that the natural loss flowing from any breach of warranty was of a more limited amount.
      • The arbitrator found, as a matter of fact, that no basis of damage was proved, including as to the more limited amount.
      • In these circumstances, notwithstanding my view that there were arguable (albeit technical) breaches of the warranties, leave to appeal should be refused, and the defendants should be given leave to enforce the final award.

2000

1925

    • Lord Dunedin, for the Judicial Committee, in Champsey Bhara & Co. v. Jivraj Balloo Spinning and Weaving Co.30) said:
      • The law on the subject has never been more clearly stated than by Williams J. in the case of Hodgkinson v. Fernier 31)
        • The law has for many years been settled, and remains so at this day, that, where a cause or matters in difference are referred to an arbitrator, whether a lawyer or a layman, he is constituted the sole and final judge of all questions both of law and of fact. …
    • The only exceptions to that rule, are, cases where the award is the result of corruption or fraud, and one other, which though it is to be regretted, is now, I think, firmly established, namely, where the question of law necessarily arises on the face of the award, or upon some paper accompanying and forming part of the award.
    • Though the propriety of this latter may very well be doubted, I think it may be considered as established.
    • This view has been adhered to in many subsequent cases, and in particular in the House of Lords in British Westinghouse Co. v. Underground Electric Railways Co.5 32)
1) [2017] VSC 97
2) [2016] VSC 326
3) [2015] VSC 163
4) [2015] NSWSC 735
5) [2015] VSC 679
6) [2014] VSC 385
7) No. A12-1994
8) [2013] VSC 539
9) [2013] EWCA Civ 156
10) [2013] NSWSC 191
11) [2012] NSWWCCPD 42
12) [2012] QSC 38
13) [2012] VSC 157
14) 2012 BCCA 125
15) 2011 370 MCA
16) [2012] NSWSC 545
17) [2012] NSWSC 1306
18) [2011] NSWSC 1567
19) [2011] NSWSC 1331
20) [2011] NSWSC 1305
21) [2011] VSC 622
22) [2011] HCA 37
23) [2011] VSCA 218
24) [2010] NSWSC 887
25) [2010] NSWCA 179
26) AK CIV-2010-404-1168 28 September 2010
27) [2009] VSC 542
28) [2000] 3 NZLR 318 (CA)
29) [1925] HCA 55; (1925) 37 CLR 233
30) (1923) A.C., at p. 486.
31) (1857) [1857] EngR 940; 3 C.B. (N.S.) 189, at p. 202.
32) (1912) A.C. 673

  © White SW Computer Law 1994-2016. ABN 94 669 684 644. All Rights Reserved.
  Liability limited by a scheme approved under Professional Standards Legislation
  This website is a guide only and should not be used as a substitute for proper legal advice.
  Readers should make their own enquiries and seek appropriate legal advice.
  For legal advice please email wcl@computerlaw.com.au