By Tasman Ash Fleming -
Key decisions
- Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24
- Cook (a pseudonym) v The King [2024] HCA 26
- CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28
ARBITRATION
UNCITRAL Rules – proportionate liability
In Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24 (7 August 2024), the High Court allowed an appeal from the Court of Appeal of the Supreme Court of South Australia.
The proceedings related to an arbitration concerning whether proportionate liability schemes apply to arbitrations:
‘The proportionate liability laws, in substance, limit a defendant’s liability for the plaintiff’s loss according to the defendant’s responsibility for that loss. Proportionate liability, as provided for by the proportionate liability laws, represents a departure from the common law principle of “solidary liability”, under which a defendant whose tortious conduct caused loss or damage to a plaintiff was liable to compensate the plaintiff for the whole of that loss or damage…’ (at [108]).
The arbitrator referred the parties to seek clarification under section 27J of the Commercial Arbitration Act 2011 (SA) to determine a question of law, being whether the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) applied to an arbitration being conducted pursuant to the Commercial Arbitration Act 2011 (SA).
Article 28 of the UNCITRAL Model Law on International Commercial Arbitration (the ‘Model Law’) requires the arbitral tribunal to decide which law the parties have chosen to apply, which must be be construed unless otherwise expressly agreed as the law of the state of territory. Under article 34(2)(b)(i) an arbitral award can be set aside under article 34(2)(b)(ii) if the law is in conflict with the public policy of the state.
