Altain Khuder LLC v IMC Mining Inc

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT

LIST G
No. 3827 of 2010

ALTAIN KHUDER LLC

Plaintiff

v

IMC MINING INC

and

IMC MINING SOLUTIONS PTY LTD
(ACN 069 083 094)

Firstnamed Defendant

Secondnamed Defendant

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 August, 30 September and 4, 5 and 12 November 2010
DATE OF JUDGMENT:	28 January 2011
CASE MAY BE CITED AS:	Altain Khuder LLC v IMC Mining Inc & Anor
MEDIUM NEUTRAL CITATION:	[2011] VSC 1	1st Revision: 10 February 2011 – [7], [12], [105] and [108]

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ARBITRATION – Recognition and enforcement of foreign arbitral award – Extent to which applicant for recognition and enforcement must establish existence of an arbitration agreement and a foreign arbitral award binding on the parties to the arbitration agreement in pursuance of which it was made – Extent of onus on a party resisting enforcement on the basis of the defences or grounds for resisting enforcement under the International Arbitration Act 1974 (Cth) and the Convention on the recognition and Enforcement of Foreign Arbitral awards, New York, 1958 (“New York Convention”) – Proper procedure, and appropriateness of ex parte application, applying for recognition and enforcement of foreign arbitral award under Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, Order 9, and in accordance with Practice Note 2 of 2010 – Arbitration Business: International Arbitration Act 1974 (Cth), ss 2D, 3(1), 8, 9 and 39; New York Convention, Articles II, IV and V.

Dardana Ltd v Yukos Oil Co (also known as Petroalliance Services Co Ltd v Yukos Oil Co) [2002] EWCA Civ 543, [2002] 2 Lloyd’s Rep 326; Aloe Vera of America Inc v Asianic Food (S) Pte Ltd and Another [2006] 3 SLR(R) 174, [2006] SGHC 78; Dallah Real Estate and Tourism Holding Company v Ministry of Religious Affairs, Government of Pakistan [2010] 1 All ER 592 (Court of Appeal) and [2010] UKSC 46 (Supreme Court).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Megens, solicitor	Mallesons Stephen Jaques
For the Firstnamed Defendant	No appearance
For the Secondnamed Defendant	Mr J. Digby QC with Mr N. McAteer	Allens Arthur Robinson

HIS HONOUR:

Introduction and procedural matters

1. This is an application brought by originating motion dated 14 July 2010 for enforcement of a foreign arbitral award dated 15 September 2009 at Ulaanbaatar City, Mongolia, being Case # 12/09 of the Mongolian National Arbitration Centre at the Mongolian National Chamber of Commerce and Industry (“the Award”).

1. The Award named the parties and the Arbitral Tribunal as follows:

“Plaintiff

Altain Khuder LLC, Mongolia

Managing Director:  Batdorj G.

Address:  Tenggeriin tsag Center

Olympic Street 12,

Sub-district (Khoroo) 1, Sukhbaatar District

Ulaanbaatar, Mongolia

Tel:  [phone]

Defendant

IMC Mining Inc., Australia

Director:  Stewart Lewis

Tel:  [phone]

Address:  British Virgin Islands, of Level 40

Riverside Centre, 123 Eagle Street

Brisbane Qld, Australia

Fax:  [phone]

Tel:  [phone]

Email:  [e-mail]

Arbitral Tribunal

Arbitrator selected by the Plaintiff:…