Raguz v Sullivan

[2000] NSWCA 240

Reported Decision: 50 NSWLR 236

New South Wales

Court of Appeal

CITATION:	ANGELA RAGUZ v REBECCA SULLIVAN & ORS [2000] NSWCA 240
FILE NUMBER(S):	CA 40650/00
HEARING DATE(S):	22, 23 August 2000
JUDGMENT DATE:	1 September 2000
PARTIES :	ANGELA RAGUZ v REBECCA SULLIVAN, THE JUDO FEDERATION OF AUSTRALIA INC, THE JUDO FEDERATION OF AUSTRALIA INC APPEAL TRIBUNAL, THE COURT OF ARBITRATION FOR SPORT PTY LTD
JUDGMENT OF:	Spigelman CJ at 1; Mason P at 1; Priestley JA at 120

COUNSEL:	Plaintiff: R G McHugh 1st Defendant: R McColl SC/M Irving 2nd & 3rd Defendant: I Pike 4th Defendant: (22/8) B Walker SC/A Bell (23/8) T L'Estrange
SOLICITORS:	Plaintiff: Murphy's Lawyers 1st Defendant: Slater & Gordon 2nd & 3rd Defendant: Rigby Cooke, Melb 4th Defendant: Allen Allen & Hemsley
CATCHWORDS:	Arbitration - award - appeal based on error of law - Commercial Arbitration Act 1984, s40 - "exclusion agreement" - "domestic arbitration agreement" - multipartite agreement based on reading series of documents together - seat or place of arbitration contrasted with place of hearing - Court of Arbitration for Sport - D
DECISION:	Proceedings dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40650/00

SPIGELMAN CJ
MASON P
PRIESTLEY JA
Friday 1 September 2000


Angela RAGUZ v Rebecca SULLIVAN & ORS

The application related to a dispute about which of two judokas should be nominated as the Australian representative for the Olympic Games in the women’s under-52kg category. That dispute was resolved against the plaintiff in favour of the first defendant by an Award of a Panel of the Court of Arbitration for Sport. The plaintiff challenged that award in the Supreme Court by seeking leave to appeal on a question of law arising out of the award (cf Commercial Arbitration Act 1984 s38(4)). The proceedings were removed into the Court of Appeal. The first defendant and the Court of Arbitration for Sport submitted that the Supreme Court’s jurisdiction was precluded by the existence of an exclusion agreement within s40 of the Act.

At the conclusion of the hearing the proceedings were dismissed. The Court now publishes its reasons.

HELD
(per Spigelman CJ, Mason P and Priestley JA):

1 Various documents signed by the two athletes and the Judo Federation of Australia constituted an interlocking arbitration agreement to submit potential disputes about nomination exclusively to arbitration, including appellate arbitration before the Court of Arbitration for Sports in accordance with the Code of Sports-Related Arbitration.

2 The Supreme Court’s jurisdiction to grant leave to appeal under s38(4) of the Commercial Arbitration Act was here excluded by an “exclusion agreement” operative under s40.

3 The exclusion agreement did not relate to a “domestic arbitration agreement” because the agreed juridical “seat” or “place” of arbitration was Switzerland.

Discussion of the arbitral role of Court of Arbitration for Sport; the concept of the juridical “seat” or “place” of arbitration as distinct from the place of hearing of an arbitration; and changing attitudes of the common law towards arbitration. Scott v Avery (1856) 10 ER 1121 (referred); Clarke v Earl of Dunraven (The Satanita) [1897] AC 59 (referred). Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 (referred); American Diagnostica Inc v Gradipore Ltd (1998) 44 NSWLR 312 (discussed).

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40650/00

SPIGELMAN CJ
MASON P
PRIESTLEY JA

Friday 1 September 2000

Angela RAGUZ v Rebecca SULLIVAN & ORS

JUDGMENT

1 SPIGELMAN CJ and MASON P: At the conclusion of the hearing, the Court ordered that the summons be dismissed. Our reasons follow. 2 The application relates to a dispute about which of two judokas should be nominated as the Australian representative for the Olympic Games in the women’s under-52kg category. That dispute was resolved against the plaintiff, Ms Raguz in favour of the first defendant, Ms Sullivan by an Award of a Panel of the Court of Arbitration for Sport (CAS). The plaintiff challenges that award by seeking leave to appeal on a question of law arising out of the award (cf Commercial Arbitration Act 1984 (the Act), s38(4)).
3 Leave was opposed on various grounds, including the contention that an “exclusion agreement” within s40 of the Act precluded the Court’s jurisdiction to grant the leave sought.

Ms Raguz’ nomination

4    On 13 or 14 May 2000 the Judo Federation of Australia Inc (JFA) nominated Ms Raguz for selection as a member of the 2000 Australian Olympic Team in the women’s u/52kg judo category. On 19 June the JFA sent a written Nomination Form to the Australian Olympic Committee Inc (AOC). 5    Ms Raguz had previously signed that Nomination Form, warranting her agreement to the nomination and formally acknowledging various matters including:

1. I have been provided with a copy of the Agreement between the AOC and the Judo Federation of Australia concerning nominations for and selection to the 2000 Australian Olympic Team, which I have read.
2. I have complied with the requirements detailed in paragraph 5(1)-(4) of the Selection Criteria and will, as a condition of my selection:
(a) …;

(b) sign the 2000 Australian Olympic Team Membership Agreement - Athletes.

4. As required in the Agreement between the AOC and the Judo Federation of Australia concerning nomination for and selection to the 2000 Australian Olympic Team, I agree that:
(a) any dispute regarding my nomination or non-nomination by the Judo Federation of Australia to the AOC will be solely and exclusively referred to the Judo Federation of Australia’s Appeal Tribunal (“Tribunal”) with any subsequent appeal to be heard by the Court of Arbitration for Sport in accordance with clause 7 of that Agreement;
(b) any dispute regarding my selection or non-selection as a member of the Team by the AOC and whether arising during the term of this Agreement or after its termination, will be solely and exclusively resolved by the Court of Arbitration for Sport; and
(c) all references to the Court of Arbitration for Sport will be according to the Code of Sports-Related Arbitration, subject to the Olympic Charter. The decision of the said Court will be final and binding on the parties and it is agreed that neither party will institute or maintain proceedings in any court or tribunal other than the said Court.

6    The Agreement between the AOC and the Judo Federation of Australia referred to in the Nomination Form is known as the Selection Agreement. It is dated 27 September 1999 and covers matters including the JFA Shadow Team (clause 2), Selection Criteria (clause 3), Nomination (clause 4), Selection (clause 5), Appeal Process (clause 7) and Application of Laws (clause 10). 7    By the Selection Agreement the JFA was to advise the AOC from time to time of those athletes it considered suitable to be considered as members of the Shadow Team (2.1). The two athletes in these proceedings were so advised. JFA was obliged to provide a copy of the Selection Agreement to each member of the Shadow Team (2.4). 8    Nomination was to be restricted to athletes who have met the relevant Nomination Criteria and signed the Athlete Nomination Form, a copy of which was annexed (4). 9    “Nomination Criteria” are defined in the Selection Agreement as the criteria for the nomination of Athletes by JFA to the AOC for selection as members of the 2000 Australian Olympic Team. Those Criteria in their developed form are Annexure C to the copy of the Selection Agreement tendered in evidence. Elsewhere, the Agreement refers to “Selection Criteria” and “Participation Criteria” and assigns priority between the various categories of Criteria in the event of inconsistency. The Nomination Criteria, which are at all times subject to the Participation Criteria (4.3), were to be applied to determine which athletes the JFA would nominate to the AOC (4.4). 10    Selection of an athlete was stated to be conditional upon various matters, including the athlete signing the Team Membership Agreement (copy whereof was annexed) (5.3). 11    Clause 7 of the Selection Agreement deals with the Appeal Process. It provides:

Appeal process

7.1 Subject to clause 7.2, any dispute regarding an Athlete’s nomination or non-nomination of an Athlete by the NF [ie the JFA] to the AOC and whether arising during the term of this Agreement or after its termination will be according to the following procedure:

(1) The appeal process is two tier, with the appeal being first heard by the Judo Federation of Australia’s Appeal Tribunal (“Tribunal”) with any subsequent appeal to be heard by the Court of Arbitration for Sport.
(2) The sole grounds for an appeal are that the Nomination Criteria have not been properly followed and/or implemented.
(3) Any appeal by an Athlete against non-nomination to the AOC must be made to the Tribunal. Any appeal must accord with the following procedure:
(a) The appellant must give written notice of his appeal to the chief executive officer of the NF within 48 hours of the announcement of the decision against which the appeal is made.
(b) Within 5 working days of submitting his or her written notice of appeal, the appellant must submit to the chief executive officer of the NF the grounds of that appeal accompanied by a non-refundable deposit of $100 payable to the NF.
(c) Unless otherwise agreed in writing between the AOC and the NF, the Tribunal will comprise the following persons appointed by the Board of the NF:
(i) a barrister or solicitor who will act as Chairman;
(ii) a person with a thorough knowledge of the Sport and who preferably has had recent international competition experience in the Sport; and
(iii) one other person of experience and skills suitable to the function of the NF Appeal Tribunal.
No person is eligible to be appointed to the Tribunal if he or she is a member of Board of the NF or its selection panel or by reason of his or her relationship with the appellant or any member of the board of the NF or its selection panel would be reasonably considered to be other than impartial.
(d) The Tribunal will convene a hearing as soon as possible after the submission of the grounds of appeal. The hearing may occur in such manner as the Chairman decides, including telephone or video conferencing. The Tribunal is not bound by the rules of evidence but must observe the principles of procedural fairness.
(e) Prior to the hearing, the selection panel will provide the Tribunal and the appellant with a written statement as to the reasons for the decision against which the appeal is made.
(f) The Tribunal will give its decision as soon as practicable after the hearing and will provide the chief executive officer of the NF and the appellant with a statement of the reasons for its decision.
(g) The decision of the Tribunal will be binding on the parties and, subject only to any appeal to the Court of Arbitration for Sport pursuant to clause 7.1(4), it is agreed that neither party will institute or maintain proceedings in any court or tribunal other than the said Tribunal.
(4) Any appeal from a decision of the Tribunal must be solely and exclusively resolved by the Court of Arbitration for Sport according to the Code of Sports-Related Arbitration. The decision of the said Court will be final and binding on the parties and it is agreed that neither party will institute or maintain proceedings in any court or tribunal other than the said Court.
(5) An Athlete wishing to appeal to the Court of Arbitration for Sport must give written notice of that fact to the chief executive officer of the NF within 48 hours of the announcement of the decision against which the appeal is made and must then file his or her statement of appeal with the Court of Arbitration for Sport within 5 working days.
(6) Failure to observe the above time limits will render any appeal a nullity provided that an athlete may apply to the body to hear the appeal in question for an extension of time in which to commence an appeal. The body to hear the appeal in question may grant such an extension of time only in extenuating circumstances outside the control of the athlete concerned.


7.2 Acknowledging that the Olympic Charter requires the AOC to commit itself to taking action against any form of discrimination in sport and that the selection of Athletes is to be based on their sports performance and ability to serve as an example to the sporting youth of Australia, should the Secretary-General of the AOC determine at any time that a prima facie case of discrimination has occurred, concerning the nomination or non-nomination of an Athlete by the NF to the AOC, then the issue may be referred by the AOC to the Court of Arbitration for Sport according to clause 7.3.

7.3 Subject to the Olympic Charter, a reference under Clause 7.2 and any dispute regarding an Athlete’s selection or non-selection as a member of the Team by the AOC and whether arising during the term of this Agreement or after its termination, will be solely and exclusively resolved by the Court of Arbitration for Sport according to the Code of Sports-Related Arbitration. The decision of the said Court will be final and binding on the parties and it is agreed that neither party will institute or maintain proceedings in any court or tribunal other than the said Court.

12    Clause 10.3 of the Selection Agreement provides:

Any dispute concerning the construction of this Agreement and any matter arising from it, and whether arising during the term of this Agreement or after its termination, will be solely and exclusively resolved by the Court of Arbitration for Sport according to the Code of Sports-Related Arbitration. The decision of the said Court will be final and binding on the parties and it is agreed that neither party will institute or maintain proceedings in any court or tribunal other than the said Court.

13    As contemplated by the Selection Agreement, a copy of it was sent to Ms Raguz. Also as contemplated, she signed an Athlete Nomination Form (par 5 above) and the Team Membership Agreement. 14    She signed the Team Membership Agreement on 13 March 2000. This document is also referred to in par 2 of her Nomination Form. Clause 21 thereof provided:

21. Dispute Resolution
Subject to the provisions of the Olympic Charter, any dispute relating to:
(1) my selection or non-selection as a member of the Team by the AOC; or
…
and whether arising during the term of this agreement or after its termination, will be solely and exclusively resolved by the Court of Arbitration for Sport according to the Code of Sports-Related Arbitration.
…
In the interests of speedy and expert resolution of any such disputes I hereby surrender any right I may have to commence proceedings in a court in relation to any dispute or to file any appeal, review or recourse to any state court or other judicial authority from any arbitral award, decision or ruling issued by the Court of Arbitration for Sport. In particular, and without restricting the generality of the foregoing and for further and better assurance notwithstanding that such provisions have no applicability, I agree that neither party will have the right of appeal under section 38 of the Commercial Arbitration Act of any of the Australian states or to apply for the determination of a question of law under section 39(1)(a) of such Act.
Ms Sullivan’s challenge to the plaintiff’s nomination

15    The plaintiff’s nomination by JFA was challenged by Ms Sullivan who, like Ms Raguz, was a member of the JFA Shadow Team and eligible for nomination. The dispute was about whether Ms Sullivan was entitled to JFA nomination because she ranked higher than Ms Raguz pursuant to the Criteria defined in and annexed to the Selection Agreement. 16    Ms Sullivan appealed to the JFA Appeal Tribunal (the Tribunal) on 24 June 2000. The decision of that body went in Ms Raguz’s favour on 12 July 2000. 17    Ms Sullivan then appealed to the Court of Arbitration for Sport.

The Court of Arbitration for Sport (CAS)

18    The CAS was established in Lausanne in 1984, having been proposed in 1983 by the President of the IOC Mr Juan Antonio Samaranch. The Court with its Statute and Rules is established under Swiss law. The history is discussed in articles by M Reeb “The Court of Arbitration for Sport (CAS)” in Reeb ed, Receuil des sentences du TAS, Digest of CAS Awards 1986-1998 p xiii, and the Hon Justice T Kavanagh, “The Doping Cases and the Need for the International Court of Arbitration for Sport (CAS)” (1999) 22 UNSWLJ 721. 19    The Statute and Rules of the CAS as amended from time to time are set out in a booklet which in its English version is called the Code of Sports-related Arbitration (the Code). 20    When it commenced, the CAS had no appellate role. This function, added in 1991, is the jurisdiction that was invoked in the present case. Article S12 of the Code relevantly states that the CAS sets in operation Panels which have the task of providing for the resolution by arbitration of disputes arising within the field of sport in conformity with the Procedural Rules (Articles R27 et seq). One of the responsibilities of Panels stated in Article S12 is:

b. to resolve through the appeals arbitration procedure disputes, (including doping-related disputes) concerning the decisions of disciplinary tribunals or similar bodies of federations, associations or other sports bodies, insofar as the statutes or regulations of the said sports bodies or a specific agreement so provide….

21    Article R59 of the Code states inter alia:

The award shall be final and binding upon the parties. It may not be challenged by way of an action for setting aside to the extent that the parties have no domicile, habitual residence, or business establishment in Switzerland and that they have expressly excluded all setting aside proceedings in the arbitration agreement or in an agreement entered into subsequently, in particular at the outset of the arbitration.
Proceedings before the CAS

22    Ms Sullivan invoked the appellate jurisdiction of the CAS by delivering an Application Form to the CAS (Oceania Registry) in Sydney on 19 July 2000. In that form she nominated the JFA and the Tribunal as the respondents and Ms Raguz as an “affected party”. 23    In accordance with Articles R50 and R53 of the Code, the President of the Appeals Arbitration Division appointed a Panel to determine the arbitration appeal, being Mr Malcolm Holmes QC as President, the Hon Justice Tricia Kavanagh and Mr David Grace QC as arbitrators. 24    There was a preliminary conference in Sydney which resulted in an agreed Order of Procedure dated 5 August 2000. Ms Raguz did not participate at that stage. The Order of Procedure stated that the seat of the arbitration was in Lausanne, Switzerland, thereby repeating Articles S1 and R28 of the Code. It was further stipulated that the law of the merits, being the substantive law of the dispute, was the law of New South Wales (cf Article R45). The hearing was fixed to take place in Sydney on 12 August. 25    Clause 11.3 of the Order of Procedure directed Ms Sullivan to provide a copy of the Appeal Brief and the Order of Procedure to Ms Raguz. This happened on 8 August. 26    Ms Raguz retained Murphy’s Lawyers Inc to represent her at the Panel hearing. On 11 August that firm sent a facsimile to Ms Wee, the ad-hoc clerk of the Court of Arbitration for Sport (Oceanic Registry), stating:

We would advise that we act on behalf of Angela Raguz, who in accordance with Clause 11.3 of the Order of Procedure dated 5 August 2000, in the Court of Arbitration for Sport, intends to appear and participate in the Hearing of this matter which is to take place on Saturday 12 August 2000.
We understand our clients have been provided with the relevant document. Our client will be appearing, represented by Mr Richard McHugh of Counsel, who will be instructed by Mr Justin Hanby from this firm.

27    The CAS hearing took place in Sydney on Saturday 12 August 2000. 28    Ms Raguz exercised her right to be heard by becoming in effect a third party to the appeal. Each of the athletes, the JFA and the Tribunal was legally represented. 29    No challenge was made to the Panel as to the independence or qualifications of the Panel members (cf Articles R33, R34 of the Code). 30    At the end of the hearing on Saturday 12 August 2000 the Panel announced its decision in favour of Ms Sullivan. On 14 August 2000 it set out in writing the terms of the Award and the reasons for the Award.

The Award

31    The Award records that the appeal was conducted pursuant to the Code and specifically Part C of the Procedural Rules. It then sets out the facts relevant to each athlete’s claim for nomination, details of Ms Sullivan’s unsuccessful appeal to the Tribunal and the preliminary steps taken in her further appeal to the CAS. 32    The reasons record that the sole ground relied upon at the hearing was that the Nomination Criteria had not been properly followed and/or implemented and that, if properly followed, Ms Sullivan would have been the nominated athlete. Ms Sullivan had submitted that the Nomination Criteria were (until 23 March 2000) inconsistent with the Participation Criteria and, pursuant to clauses 3.1 and 4.3 of the Selection Agreement, the Participation Criteria prevailed over the Nomination Criteria to the extent of the inconsistency. The Participation Criteria, which may be “determined from time to time by the [International Judo Federation] and the IOC” (1.1), had been amended to remove the inconsistency on 23 March 2000. However, this was after athletes (including Ms Sullivan, but not Ms Raguz) had participated in a key event, namely the 1999 World Championships held in October 1999. Ms Raguz had argued that the Participation Criteria extant at the time of proposed nomination governed. 33    The CAS Panel concluded that on the proper construction of the Selection Agreement, the Nomination Criteria required the points table contained in Annexure A (the Participation Criteria) which remained in its unamended form until 23 March 2000 to be applied in the nomination by the JFA of Athletes to the AOC for selection for the 2000 Olympic Games Australian Judo Team. The Nomination Criteria had therefore not been properly followed and/or implemented. 34    Accordingly, Ms Sullivan’s appeal was upheld and the JFA was ordered to nominate her to the AOC in substitution for Ms Raguz.

Proceedings in the Supreme Court

35    The plaintiff filed a Summons seeking leave to appeal from the CAS award. She joined as defendants Ms Sullivan, the JFA, the Tribunal and the Court of Arbitration for Sport (Oceania Registry).
36 By invoking s38(4)(b) of the Act, the plaintiff was asserting that she was a party to the arbitration agreement pursuant to which the Award was made. Absent such assertion, the plaintiff had no standing to invoke the Court’s jurisdiction under s38(4). 37 The juridical nature of the “Court of Arbitration for Sport (Oceanic Registry)” in New South Wales is problematic. Counsel purporting to represent it appeared on the return of the summons and, on his application, Windeyer J removed the proceedings into the Court of Appeal on 18 August. 38 When the hearing commenced, Mr Walker SC announced his appearance for the Court of Arbitration for Sport Pty Ltd (ACN 055 014 456) and he filed an unconditional notice of appearance on behalf of that body. The Court was informed that the company is incorporated in Victoria and that it has at all times operated as an Australian emanation of the CAS providing registry services to the CAS. With the consent of all parties, we ordered amendment of the record to show the company as the fourth defendant. The presence of the CAS in these proceedings is not essential to their proper constitution or the Court’s capacity to give effective relief. Accordingly, it is unnecessary to explore further the relationship between the fourth defendant and the CAS or the CAS (Oceanic Registry). 39 The second defendant (the JFA) filed a submission supporting the plaintiff’s contention that no exclusion agreement exists. Otherwise, the second defendant and the third defendant (the Tribunal) submitted except as to costs and as to one matter not presently relevant. 40 The first defendant (Ms Sullivan) and fourth defendant (the CAS) raised as their primary objection the contention that any jurisdiction of this Court under the Act was excluded by an “exclusion agreement” taking effect pursuant to s40. The plaintiff and the JFA submitted that there is no exclusion agreement in this case. 41 Alternatively, the first defendant contended that this was not a proper case for leave to appeal in light of the principles governing the approach to s38 of the Act (see Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203). It becomes unnecessary to consider that issue or the respective arguments between the athletes as to the ultimate legal merits of the Award.

The legislative scheme

42    Despite its title, the Act regulates the arbitration of a wider range of disputes than commercial disputes, so long as there is some local nexus (see American Diagnostica Inc v Gradipore Ltd (1998) 44 NSWLR 312 at 321-2).
43 The threshold issue was the Supreme Court’s jurisdiction to entertain the application. The plaintiff invoked s38 which confers on the Supreme Court jurisdiction to entertain an appeal on a question of law arising out of an award if all the parties to the arbitration agreement consent or if the Supreme Court grants leave. There is no consent here. The power to grant leave is, by s38(4)(b), made expressly subject to s40. 44 Section 40 precludes the grant of leave if there is in force an “exclusion agreement” in writing between the parties to the arbitration agreement which excludes the right of appeal. It is convenient to set out s40 in full:

Exclusion agreements affecting rights under sections 38 and 39

40. (1) Subject to this section and section 41:
(a) the Supreme Court shall not, under section 38 (4) (b), grant leave to appeal with respect to a question of law arising out of an award; and

(b) no application may be made under section 39 (1) (a) with respect to a question of law,

if there is in force an agreement in writing (in this section and section 41 referred to as an " exclusion agreement ") between the parties to the arbitration agreement which excludes the right of appeal under section 38 (2) in relation to the award or, in a case falling within paragraph (b), in relation to an award to which the determination of the question of law is material.

(2) An exclusion agreement may be expressed so as to relate to a particular award, to awards under a particular arbitration agreement or to any other description of awards, whether arising out of the same arbitration agreement or not.

(3) An agreement may be an exclusion agreement for the purposes of this section whether it is entered into before or after the commencement of this Act and whether or not it forms part of an arbitration agreement.
(4) Except as provided by subsection (1), sections 38 and 39 shall have effect notwithstanding anything in any agreement purporting:

(a) to prohibit or restrict access to the Supreme Court; or

(b) to restrict the jurisdiction of the Supreme Court.

(5) An exclusion agreement shall be of no effect in relation to an award made on, or a question of law arising in the course of, an arbitration being an arbitration under any other Act.

(6) An exclusion agreement shall be of no effect in relation to an award made on, or a question of law arising in the course of, an arbitration under an arbitration agreement which is a domestic arbitration agreement unless the exclusion agreement is entered into after the commencement of the arbitration in which the award is made or, as the case required, in which the question of law arises.

(7) In this section, "domestic arbitration agreement" means an
arbitration agreement which does not provide, expressly or by implication, for arbitration in a country other than Australia and to which neither:

(a) an individual who is a national of, or habitually resident in, any country other than Australia; nor

(b) a body corporate which is incorporated in, or whose central management and control is exercised in, any country other than Australia,
is a party at the time the arbitration agreement is entered into.

45 In his very able submissions, counsel for the plaintiff urged the Court to take a stringent approach to the interpretation of s40 and the documents said by the opposing defendants to constitute an exclusion agreement. We were reminded of the common law’s hostility to private arbitration agreements that purport to exclude the jurisdiction of the courts. 46 The history of the common law reveals a long tradition of distrust of arbitration, both national and international. Sometimes this distrust stemmed from perceived deficiencies of the arbitral process, such as its expense, lack of finality, and difficulties of enforcement of awards. Sometimes there was resentment about aspects of arbitration which (to some people) are its beneficial hallmarks. For example, arbitral procedures offer flexibility and confidentiality. Arbitration also questioned many of the common law's technical mysteries and it disputed the common law's fixation with the administration of justice in public. 47 The common law's opposition to arbitration also stemmed from less worthy perspectives. The desire for exclusive control will often have an economic motive not far below the surface. With arbitration, it was not just the barristers whose livelihood was threatened. In the famous case of Scott v Avery (1856) 5 HLC 811, 10 ER 1121, the House of Lords settled the validity of arbitration agreements that made an award a condition precedent to any right of action under a contract. This decision ended much judicial conflict and judicial opposition that was shrouded in technicality and arcane learning. However, the canny Scot Lord Campbell lifted the curtain on judicial opposition:

My Lords, I know that there has been a very great inclination in the courts for a good many years to throw obstacles in the way of arbitration. Now, I wish to speak with great respect of my predecessors the judges; but I must just let your Lordships into the secret of that tendency. My Lords, there is no disguising the fact, that as formerly the emoluments of the judges depended mainly or almost entirely upon fees, and they had no fixed salary, there was great competition to get as much as possible of litigation into Westminster Hall, and a great scramble in Westminster Hall for the division of the spoil.... Therefore, they said that the courts ought not to be ousted of their jurisdiction, and that it was contrary to the policy of the law.

48 This frank self-revelation must have caused quite a stir, which is probably the reason why it does not appear in later, revised reports of the decision. Contrast 28 LT 207 at 211 and 5 HLC 811 at 853 where the passage has been replaced with “It probably originated in the contests of the different courts in ancient times for extent of jurisdiction, all of them being opposed to anything that would altogether deprive every one of them of jurisdiction”. 49    In the case of international commercial arbitration, opposition from common lawyers also stemmed from ignorance of legal systems outside their own ken (especially civil systems). Fear of the unknown will often produce distrust and opposition. 50    Despite continuing professional and judicial hostility, the commercial community has continued to support arbitration. If necessary, it was prepared to seek out legal regimes more sympathetic to party autonomy and readier to recognise the reasons lying behind the continued popularity of arbitration in particular fields. Legislatures and latterly judges have belatedly sat up and listened. Widespread adoption of the UNCITRAL Model Law and the Australia-wide scheme of which the Act forms part reflect these developments. 51    Courts have listened and responded with understanding and acceptance (see eg Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 166, Promenade Investments Pty Ltd v State of New South Wales (1991) 26 NSWLR 184 (Rogers CJ Comm D), 203 (CA)). Some judges resisted the call longer than others. But, in his own words, even Kirby P recognised that “the inclination of the judges (including myself) to review arbitral awards and to re-examine facts had to be brought to a halt” in light of “the clear preference of Parliaments throughout Australia … for the more robust and narrower approach favoured by the House of Lords in Pioneer Shipping Ltd & Ors v BTP Tioxide Ltd [1982] AC 724” (see Natoli v Walker, Court of Appeal, unreported, 26 May 1994). 52 These considerations mean no more or less than that ss38 and 40 of the Act should be construed fairly, according to the natural meaning of the words used. The power to entertain an appeal under s38 (absent consent) is expressly subject to s40, which is clear in its general intent if not in all of its detail. 53 Furthermore, since the common law’s earlier policy “has now given way to the need for finality” (per Leggatt J in Arab African Energy Corp Ltd v Olieprodukten Nederland BV [1983] 2 Lloyd’s Rep 419 at 423, see also American Diagnostica at 331), this should be reflected in a neutral approach to construing putative exclusion agreements (ibid). 54    It is also worth recognising that an exclusion agreement cannot oust the Court’s supervisory jurisdiction to police arbitrators’ misconduct (Act, ss42,44).

Does the Court have jurisdiction to grant leave?

55 To engage s40, it must be shown that there was an agreement “between the parties to the arbitration agreement” which excludes the right of appeal under s38 or the right to seek a preliminary determination under s39. The exclusion agreement need not be entered into at the same time as the arbitration agreement. If there is a written exclusion agreement, and if the appurtenant arbitration agreement is not a “domestic arbitration agreement” as defined, or if the exclusion agreement was entered into after the commencement of the arbitration, then the Court’s jurisdiction is relevantly excluded.
56 The applicability of s40 thus depends on the identification of two distinct agreements:

(i) An arbitration agreement, defined in s4(1) of the Act to mean “an agreement in writing to refer present or future disputes to arbitration” .

(ii) An exclusion agreement, defined in s40(1) to be an agreement in writing between the parties to the arbitration agreement which excludes the right of appeal under s38(2) of the Act.

57 The fact that the exclusion agreement must be “between the parties to the arbitration agreement” reinforces the significance of the precise identification of the arbitration agreement and the parties thereto. The words must be construed in the context of s40(2), which contemplates that an exclusion agreement relating to an award may, but need not, arise out of “the same arbitration agreement”. This formulation is part of a clause qualifying the general category identified as “any other description of awards”. The phrase is designed to permit an exclusion agreement to be entered into with respect to a variety of different arbitration agreements. It does not qualify the need expressed in s40(1) for the exclusion agreement to be made between the parties to the very arbitration agreement said to exclude the right of appeal. 58 It was common ground before this Court that the plaintiff was a party to an arbitration agreement and accordingly had the right to seek leave to appeal under s38(4). The parties did not however agree on the precise identification of the arbitration agreement to which she was a party. It is necessary for the Court to determine whether Ms Raguz, Ms Sullivan and the JFA were parties to a relevant arbitration agreement in order to determine whether or not there was an exclusion agreement between those parties. It is unnecessary to identify all of the parties to what we will show was a multipartite arbitration agreement.

The arbitration agreement

59    In her original written submissions to this Court, Ms Raguz claimed to invoke the Court’s jurisdiction, pursuant to s38, on the basis that she was party to an arbitration agreement stemming from her own Nomination Form “as supplemented by” the Order of Procedure dated 5 August in the proceedings before the CAS. In the oral submissions of her counsel, she advanced a narrower submission, namely that it was not until she chose to participate in the CAS appeal hearing that she became party to any arbitration agreement. 60    The Order of Procedure identified Ms Sullivan and the JFA as the parties thereto (cl 1.3). Provision was made for signature only by those parties. However, in cl 11.3 Ms Raguz was referred to as a person invited to make submissions and to participate in the proceedings and the hearing. She did so, having notified her intention through her solicitor’s facsimile (par 26, above). In the decision of the CAS Ms Raguz is referred to as a “Third Party”. 61    Ms Sullivan also submitted that the Order for Procedure constituted or evidenced a separate arbitration agreement. 62    The narrower submission put orally by the plaintiff had as its denouements the arguments that (a) no writing in or after the Order of Procedure contained any promise capable of constituting an exclusion agreement by Ms Raguz and (b) the arbitration to which Ms Raguz adhered was a domestic arbitration that was not “in a country other than Australia” (cf s40(7)) because the hearing was fixed at that stage to occur in Sydney. Ms Sullivan parted ways with Ms Raguz at both of these points. 63 In our opinion the premise in the plaintiff’s narrower argument must be rejected in favour of one that is closer to the plaintiff’s original written submission. Particular reliance was placed on cl 1.3 of the Order of Procedure as constituting a relevant arbitration agreement or, in some manner, a variation of the arbitration agreement to which Ms Raguz was a party. The clause states:

1.3 The parties hereby agree, on the terms and conditions set out below, to refer the dispute that has arisen between them to arbitration by the CAS.

64    Clause 1 is concerned with the subject of “Jurisdiction”. It commences in cl 1.1 with a recitation of the rights of appeal to the Tribunal and to the CAS pursuant to cl 7.1 of the Selection Agreement between the AOC and the JFA. Although cl 1.3 uses the formulation “agree … to refer the dispute”, it was not intended by the parties to that document to constitute a “reference”. The operative words in cl 1.3 are found in the words “on the terms and conditions”. These words refer to the provision for the conduct of the arbitration set out in cls 2-14 of the Order of Procedure. The Order of Procedure is not, in our opinion, an agreement to refer, within the definition of “arbitration agreement” in s4(1) of the Act. The Order is, as it purports to be on its face, an agreed set of steps for the conduct of an arbitration. 65    The law recognises that several interlocking documents may evidence or constitute a multipartite contract (Clarke v Earl of Dunraven [1897] AC 59). That case concerned two participants in a yacht race each of whom had executed a document with the race organiser but not, in form, with each other. Lord Herschell said (at 63):

I cannot entertain any doubt that there was a contractual relation between the parties to this litigation. The effect of their entering for the race, and undertaking to be bound by these rules to the knowledge of each other, is sufficient, I think, where those rules indicate a liability on the part of the one to the other, to create a contractual obligation to discharge that liability.

See also Cheshire and Fifoot’s Law of Contract 7th Australian ed (1996) par [3.7]; McCannell v Mabee Maclaren Motors Limited (1926) 36 BCR 369 (motor dealers contracting with manufacturer held bound to each other by the terms of their agreement).

66    A framework of mutual promises was contained in clause 7 of the Selection Agreement and those parts of the Code which embodied an agreement to arbitrate or stipulated its vital terms (including “seat”). The framework was not set in concrete, but that presents no juridical obstacle to a valid contractual regime (Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11, 110 per McHugh JA). In fact there were no variations to the vital terms of the mutual submissions to arbitration or their attendant exclusion agreement. 67 Beyond AOC and JFA the framework was open-ended as to parties, initially. However, after selection on the Shadow Team, individual athletes were invited to adhere to the Selection Agreement through execution of Nomination Forms and Team Management Agreements. By these means, each adherent promised in favour of the others that he or she would abide by the rules attending the contest in which they were engaged, ie for Olympic nomination and selection. Such a multipartite agreement is enforceable, notwithstanding traditional notions of offer and acceptance (Clarke v Earl of Dunraven, Vroon BV v Foster’s Brewing Group Ltd [1994] 2 VR 32 at 80ff, Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 at 177ff). In Integrated Computers McHugh JA said (at 11, 117) that:

… a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words … The question in this class of case is whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement.

68    The JFA’s offer to embark on the nomination process in accordance with the Selection Agreement if the athletes in turn submitted to the arbitration conditions was consideration for the multipartite agreement. The mutual promises to submit to arbitration were also consideration passing from each athlete to the other. 69    The relevant documentation is variously described by the use of the words “agreement” and “form”. It creates a range of separate and interlocking contractual arrangements between and amongst the AOC, the JFA and individual athletes. In our opinion, the relevant arbitration agreement is multipartite. So too is the exclusion agreement. Each agreement is constituted by a number of interconnected documents, which satisfy, for purposes of the definition of “exclusion agreement”, the requirement of writing. Persons became parties to the two agreements by conduct, sometimes including acts of signature on documents. 70    The umbrella agreement is the Selection Agreement dated 27 September 1999 between the AOC and the JFA. That document annexes each of the other relevant documents as well as the Nomination Criteria and Participation Criteria the construction of which was the primary issue in dispute on the merits before the arbitrator. 71    When it was executed on 27 September 1999, the Selection Agreement bound only its parties, the AOC and the JFA. In its totality it continued to bind only those parties. However, the Agreement - clause 7 (Appeal Process) in particular - offered the comprehensive framework for a two tiered arbitration process, providing both an agreement for arbitration and (as we shall demonstrate below) an “exclusion agreement”. AOC and JFA bound themselves to accept that framework so far as it touched their interests. 72    Clause 7 of the Selection Agreement purported to confer, regulate and restrict the rights of athletes to pursue nomination disputes, including rights inter se. The drafters of that Agreement obviously contemplated problems with the law of privity of contract, because other provisions in the Selection Agreement addressed the way in which athletes would adhere legally to its contractual regime. 73    First, copies of the Selection Agreement with its annexed specimen Nomination Form and Team Membership Agreement were to be sent to members of the JFA’s selected Shadow Team. 74    Secondly, the JFA committed itself to AOC that an athlete would not be nominated for the Olympic Team unless he or she had previously submitted a signed Athlete Nomination Form (4.1(4)). This occurred as regards Ms Raguz on about 14 April 2000 and Ms Sullivan some time in June 2000. 75    Thirdly, the JFA committed itself to recognise that AOC selection of an athlete to the Olympic Team was conditional upon that athlete having previously signed the Team Membership Agreement (5.3(1)). The evidence shows that JFA then set about ensuring that likely candidates for selection did sign the Team Membership Agreement. Ms Raguz did so on 14 March 2000. The evidence does not record if or when Ms Sullivan signed (although she almost certainly did so), but that is not critical to the case because the proceedings before the CAS, and in this Court, were concerned only with the nomination phase of the process. The relief sought by Ms Sullivan, and granted by the arbitrator, was an order requiring the JFA to withdraw its nomination of Ms Raguz and to nominate Ms Sullivan. On this basis the Team Membership Agreement, which is directed to the process of selection by the AOC, is not engaged in the present issue. 76    The Nomination Form signed by Ms Raguz adverted to the Selection Agreement and independently reiterated the critical provisions which were both an arbitration agreement and an exclusion agreement. 77    By the various documents signed by them, the two athletes, the JFA and the AOC severally committed themselves to the arbitral regime provided for in clause 7 of the Selection Agreement and the Code of Sports-related Arbitration. That commitment preceded Ms Sullivan’s invocation of the appellate jurisdiction of the CAS. Indeed it was because of that commitment (by JFA and AOC) that she was able to invoke that jurisdiction. 78    Ms Sullivan appealed from her “non nomination” in terms of her Nomination Form. Ms Raguz had agreed in her Nomination Form to an identical regime with respect to “any dispute regarding” her own “nomination”. The two documents merge into a single agreement. At a time which it is not necessary to decide, but in any event no later than the signature on the Nomination Form, each athlete by her conduct agreed to become a party to the relevant agreement. 79    The parties to the arbitration agreement and the exclusion agreement are the same. In the context of the umbrella nature of the Selection Agreement, there is not, in our opinion, a separate “arbitration agreement” and a separate “exclusion agreement” between each athlete and the JFA and the AOC. 80    Each athlete knew that every other member of the Shadow Team would both be shown the Selection Agreement and be required to execute the standard Nomination Form (and subsequently the standard Team Membership Agreement). This was plainly intended to be an integrated scheme, particularly in a context where a claim by one athlete to a right of nomination (or selection) may, and in the present case must, have the consequence, of denying nomination (or selection) to another. 81    Significantly the agreement of each Athlete to refer disputes to arbitration was concerned not only with her own “non-nomination” - in which case the signatory would be the aggrieved party - but extended expressly to her “nomination” - in which case the signatory would be a third party. Each nominated Athlete understood that each other Athlete could only appeal her omission - and therefore the nominated Athlete’s inclusion - in the stipulated manner. 82    In our opinion the arbitration agreement and the exclusion agreement constituted by these documents is a single agreement between the JFA and the AOC, on the one hand, and all the relevant athletes, on the other.

The exclusion agreement

83    As noted above, the exclusion agreement is manifest in the same documents as those which constitute the arbitration agreement. 84    The exclusion agreement is “in writing” because its terms can be located in documents adopted and incorporated by the respective participants through the various instruments which they individually signed (cf Arab African Energy Corp). Here there was much more than an agreement with the arbitrator. Accordingly, we need do no more than reserve our position as to the correctness of some of the reasoning in White Constructions (NT) Pty Ltd v Mutton (1988) 57 NTR 8. 85 We have set out the several stipulations whereby each athlete agreed expressly that any CAS decision to which she was a party relating to nomination or non-nomination would be final and binding and that she would not institute or maintain proceedings in any court or tribunal other than the CAS (see pars 5, 11, 12 above). 86 An exclusion agreement may be incorporated by reference (see Marine Contractors Inc v Shell Petroleum Development Co of Nigeria Ltd [1984] 2 Lloyd’s Rep 77). 87 Mere agreement that an award shall be “final and binding” would not be an exclusion agreement, especially in light of the fact that s28 of the Act provides this as the general rule in any event (see Corner v C & C News Pty Ltd, unreported, Yeldham J, 28 April 1989, American Diagnostica). Here there was much more. There were express stipulations by prospective parties to a CAS arbitration that the CAS decision by way of appeal would itself be “final and binding on the parties”. However, to this was added the promise that “neither party will institute or maintain proceedings in any court or tribunal other than the said Court” [of Arbitration for Sport]. 88    Insofar as Yeldham J suggested in Corner v C & C News Pty Ltd that an exclusion agreement should expressly refer to the right of appeal under s38, we are of the view that this reasoning is wrong. The matter falls to be determined, as Giles CJ CommD said in American Diagnostics at 333, as a matter of construction of the exclusion agreement. In our opinion the formulation ‘institute or maintain proceedings in any court’, encompasses an appeal to the Supreme Court under s38(2). These words are sufficiently clear in their effect to exclude the right of post-award appeal now invoked (cf American Diagnostica at 333C).
89    The matter becomes even stronger when the words are read in their context. The plaintiff submitted that clause 7 of the Selection Agreement merely directs disputants into the corral of Tribunal and CAS arbitration, while leaving untouched any rights of appellate intervention post-CAS. This does less than justice to the language of clause 7 and clause 4 of the common form selection agreements. As regards the former, see 7.1(3)(g) and also contrast 7.1(4) and 7.3. As regards the latter, the argument ignores the references in 4(a) and (b) to the dispute being resolved “solely and exclusively” in the Tribunal and the CAS and the cumulative effect of the concluding words in 4(c) (“neither party will institute or maintain proceedings in any court or tribunal other than the [CAS]”).

Is there a “domestic arbitration agreement”?

90 The opposing defendants must also show that the exclusion agreement does not relate to a “domestic arbitration agreement” or that, if it does so relate, the exclusion agreement was entered into after the commencement of the arbitration (see s40(6),(7)). The definition of “domestic arbitration agreement” in s40(7) excludes an arbitration agreement which expressly or impliedly provides for arbitration in a country other than Australia even if the parties to the arbitration are Australian nationals or residents. 91 The defendants opposing the Court’s jurisdiction submitted that the arbitration agreement is a non-domestic one because the seat of the CAS and of its Arbitration Panel is Lausanne, Switzerland (see Code Articles S1, R28, Order of Procedure, clause 5). The plaintiff submitted that reference to “arbitration in a country other than Australia” deals with a different notion, namely the stipulated place of hearing of the particular arbitration. The plaintiff submitted that the place of hearing was the natural and ordinary meaning of the phrase and relied on the range of factors connecting the arbitration to Australia. 92    In our view the defendants’ submission should be accepted. 93    The “place” or “seat” of an arbitration is a vital concept. In American Diagnostica, Giles CJ Comm D said (at 324):

In Naviera Amazonica Peruana SA v Bompania Internacional de Seguros del Peru [1988] 1 Lloyd’s Rep 116, Kerr LJ, with whom Russell LJ and Sir Denys Buckley agreed, identified three systems of law potentially relevant to an arbitration with a foreign element, namely the law governing the substantive contract, the law governing the agreement to arbitrate and the performance of that agreement, and the law governing the conduct of the arbitration. As to the law governing the conduct of the arbitration, his Lordship said (at 119):
“English law does not recognise the concept of ‘de-localised’ arbitration … (see Dicey & Morris (at 541, 542)) or of ‘arbitral procedures floating in the transnational firmament, unconnected with any municipal system of law’ ( Bank Mellat v Helliniki Techniki SA ]1984] QB 291 at 301 (Court of Appeal)). Accordingly, every arbitration must have a ‘seat’ or locus arbitri or forum which subjects its procedural rules to the municipal law which is there in force.”
The seat of arbitration is not necessarily where it is held, although where the parties have failed to choose the law governing the conduct of the arbitration it will prima facie be the law of the country in which the arbitration is held because that is the country most closely connected with the proceedings: see James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 at 607, 609, 616; Black Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1981] 2 Lloyd’s Rep 446 at 453-454; Bank Mellat v Helliniki Techniki SA [1984] QB 291 at 301.

See also Russell on Arbitration 21st ed at 2-097.

94    Section 3 of the Arbitration Act 1996 (UK) defines “the seat of arbitration” as:

… the juridical seat of the arbitration designated -
(a) by the parties to the arbitration agreement, or
(b) by any arbitral or other institution or person vested by the parties with powers in that regard, or

(c) by the arbitral tribunal if so authorised by the parties,

or determined, in the absence of any such designation, having regard to the parties’ agreement and all the relevant circumstances.

95    This provision is not replicated in Australian legislation, but the definition appears to state accurately how the “seat” or “place” of an arbitration is identified and its essential function as a “juridical” concept. The concept has particular importance for an arbitration where conduct or enforcement may have international dimensions.
96 Article 20 of the UNCITRAL Model Law on International Commercial Arbitration (Schedule 2 to the International Arbitration Act 1974 (Cth)) states:

Article 20. Place of arbitration
(1) The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.
(2) Notwithstanding the provisions of paragraph (1) of this article, the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts of the parties, or for inspection of goods, other property or documents.

97 Commentators have pointed out that Article 20 makes sense when it is understood that there is a vital distinction between the so-called place (or seat) of arbitration and the place or places where the arbitrators may hold hearings, consultations or other meetings (see Holtzmann and Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration pp592ff; Redfern and Hunter, International Commercial Arbitration 2nd ed 1991 pp93-4). The common law recognises this distinction (see the passage from American Diagnostica set out above at par 93, Union of India v McDonnell Douglas Corporation [1993] 2 Lloyd’s Rep 48) as does the Code of Sports-related Arbitration (see Article R28). 98 In these proceedings evidence was given on affidavit by Professor Gabrielle Kaufmann-Kohler. She is a professor of law and teacher of private international law, including the law of international commercial arbitration, at the Universities of Geneva and Lausanne; a practising Swiss attorney-at-law; and President of the Ad Hoc Division of the CAS which resolves disputes arising during and in connection with the Olympic Games. She points out that Swiss law recognises that the choice of the seat of the arbitration implies the claim of the arbitration procedural law of that place to govern the proceedings. 99 In her article “Identifying and Applying the Law Governing the Arbitration Procedure - The Role of the Law of the Place of Arbitration”, International Council for Commercial Arbitration, Congress Series no 9 Paris 1998 336 she says (at 348, footnotes omitted):

Wherever a CAS arbitration takes place physically, it always has its legal place or seat in Lausanne. This applies to all CAS arbitrations, wherever the hearings take place, whether they are managed by the Lausanne office exclusively or in conjunction with a decentralized office, and it includes arbitrations handled on the site of the Olympic Games.
There are three main reasons for the choice of a sole seat, regardless of the actual place of arbitration. First, that choice provides a uniform procedural regime for all CAS arbitrations, not only in terms of applicable rules under the Code, but also with respect to the arbitration law governing the proceedings. The Games move around, but the legal framework is stable.
Second, conducting the arbitration at the site of the Games is intended to make arbitration as convenient as possible for the parties and to resolve disputes as expeditiously as possible. It is not meant to have any legal significance.
Third, the equal treatment so achieved is consistent with the equal standards that govern the activities giving rise to disputes, ie, sports competition. A time on a stopwatch is the same wherever the race takes place. It is further consistent - which may be of even greater significance here - with the choice of substantive law governing sports disputes. According to Art. 17 of the CAS ad hoc Rules, the arbitral tribunal must resolve the dispute “pursuant to the Olympic Charter, the applicable regulations, general principles of law and the rules of law, the application of which it deems appropriate”.
All these sets of rules (except possibly for the last one, which in practice never comes to bear) are transnational, universal, global. Their application is not dependent on a territorial nexus, nor is it restricted territorially. This global substantive law is matched by a uniform procedural law thanks to the choice of a sole seat for all CAS arbitrations.

100    See also Dicey & Morris, The Conflict of Laws 13th ed, 2000 §16-008 - 16-009; Nygh, Conflict of Laws in Australia 6th ed, 1995 p186, Naviera Amazonica at 120-1. 101 Section 40 was in the Act in its original form in 1984. At that time the statutory law of arbitration in the United Kingdom distinguished between domestic and non-domestic arbitrations in relation to the capacity of an exclusion agreement to block judicial review of an arbitration award (see Arbitration Act 1979 (UK), ss1-4, the obvious model for ss38-41 of the Act). Section 3 of the United Kingdom Act, upon which our s40 is based, defined “domestic arbitration agreement” in substantially similar terms to s40(7). That definition was in turn derived verbatim from s1(4) of the Arbitration Act 1975 (UK) which gave effect to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards in the United Kingdom (see generally Mustill and Boyd, Commercial Arbitration 2nd ed 1989, pp631-2, 705, 709-712). 102 This legislative history reinforces the propriety of confining the words “arbitration in a country other than Australia” in s40(7) of the Act as connoting the technical meaning of a “seat” or “place” of arbitration, a well-established concept in and for the purposes of arbitration with an international aspect. We would therefore reject the plaintiff’s submission that the expression refers to the place of hearing of a particular arbitration. If that were correct, the application of ss38, 39 and 40 could change with a temporary change of hearing venue rather than exist as a statutory framework applicable or not applicable as the case may be to an arbitration agreement from its outset. It is inconceivable that those who drafted s40 would have contemplated this. 103 In our opinion the legislature was concerned with the legal place of the arbitration, not the physical place of the arbitration. The legislative scheme was primarily concerned with commercial disputes. Such disputes may involve commercial activities that are physically located in different locations. They are the subject of a single arbitration agreement, which is intended to encompass hearings in the various locations at which disputes could arise. Indeed, it may be convenient to conduct hearings in more than one physical location in the course of a particular dispute. It is, in our opinion, likely that the legislature intended to allow parties to commercial agreements to select a single legal place of arbitration and to leave the choice of the physical location of hearings to the felt necessities of a specific dispute. 104 In the second reading speech for the 1984 Act, the Attorney-General, Mr Landa said:

[The Bill] will encourage the use of arbitration as a dispute resolving mechanism thereby reducing the demand on courts to resolve such disputes. (Hansard NSW Legislative Assembly 18 October 1984 p2160) .

105    The construction we prefer will better advance this purpose. 106    By cl 7(4) of the Selection Agreement the appeal to the CAS is to be resolved “according to the Code of Sports Related Arbitration”. By cl 4(a) of each Nomination Form, each Athlete agrees that the appeal to that “Court” will be “in accordance with cl 7 of that Agreement”. 107    Rule 28 of the Code of Sports Related Arbitration provides:

The seat of the CAS and of each Arbitration Panel (“Panel”) is in Lausanne, Switzerland. However, should circumstances warrant, and after consultation with all parties, the President of the Panel or, failing him, the President of the relevant Division, may decide to hold a hearing in another place.

108    With respect to the appeal in the present case, this position was expressly continued in the Order of Procedure, which stated in par [5]: “The seat of the arbitration is in Lausanne, Switzerland.” Par [6] was “The hearing will take place at Level 23, The Chifley Tower, 2 Chifley Square”. 109    The unqualified choice of Lausanne as the “seat” of all CAS arbitrations within the scope of the arbitration agreement means that that agreement did provide for arbitration in a country other than Australia. Accordingly, this was not a “domestic arbitration agreement”. 110    It is unnecessary to consider whether the plaintiff also fails at this step because the arbitration agreement contemplated that the hearing could take place at “another place” in or outside Australia (Code Article R28). Since the arbitration agreement was made well before Ms Sullivan invoked the CAS procedure and well before Sydney was fixed as the place of hearing by the appointed Panel, there would be problems for the plaintiff even if her interpretation of s40(7) were otherwise correct. 111 It follows that the exclusion agreement entered into as part of the arbitration agreement was effective.

Costs

112    Neither athlete seeks costs against the other. 113    Ms Sullivan seeks costs against the second and fourth defendants. As regards the second defendant, she points to the costs order made by the CAS, which was that the JFA parties (ie the second and third defendants) pay all of Ms Raguz’s costs and one half of Ms Sullivan’s costs. It is submitted that the proceedings in this Court are a continuation of the chain of events set in process when the JFA incorrectly applied the selection criteria. 114    The fourth defendant does not seek to differentiate itself from the CAS or the CAS Oceania Registry in any way that would have a bearing upon costs. It accepts that it is relevant that the CAS had these proceedings removed into the Court of Appeal and that these proceedings have been the vehicle for resolving a test issue of vital concern to itself and the Olympic movement whose interests it serves that goes well beyond the interests of the two athletes. 115    The plaintiff seeks an order that the fourth defendant pay one half of her costs. She too seeks to categorise the proceedings as a test case which essentially concerns interests lying beyond those of the two athletes. More particularly, she relies on the fact that the removal of the proceedings into the Court of Appeal occasioned additional cost and extended the hearing time for the proceedings. The photocopying of the bundles of papers which were needed to be prepared for this litigation in this Court was expensive. 116    As indicated above, the second and third defendants submitted generally except as to costs, although the second defendant did file a written submission supporting the plaintiff on the issues which became determinative. It is also submitted that if the appeal were allowed the Court should revisit the costs order below. In a written submission, the second and third defendants opposed any order for costs as sought by Ms Sullivan against them. 117    This case has been the vehicle for determining issues of general significance. Removal into the Court of Appeal on the application of the CAS has enabled this to be done expeditiously and (subject to any appeal to the High Court) authoritatively. Such removal has increased the costs and disbursements of the plaintiff who bore the carriage of the litigation. And the stance adopted by the CAS is an unusual one given that its jurisdiction was not in issue (cf R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-6). 118 The fourth defendant conceded that this was a test case which will be of significance to it with respect to a range of possible disputation in relation to nomination and selection of Athletes for the Olympic Games. In these circumstances it is appropriate that it pay half the plaintiff’s costs. 119 The first defendant was successful in all respects and should have her costs. The second defendant was ordered to pay one half of the first defendant’s costs in the CAS. It was its conduct which led to the first defendant being obliged to institute the arbitration. As noted above, in this Court it supported the plaintiff. The first defendant should have her costs paid as to one half by the second defendant and as to one half by the fourth defendant. 120 PRIESTLEY JA: All the relevant materials and arguments are set out in the reasons of the Chief Justice and the President. 121 I agree with their identification of the relevant arbitration agreement and exclusion agreement. I also agree with their views as to the meaning of those agreements and of the relevant provisions of the Commercial Arbitration Act 1984 (NSW). Consequently, I agree with the legal conclusion they reach upon their understanding of the agreements. It was on the basis of this conclusion that the court, on 23 August, ordered that the plaintiff’s summons be dismissed. 122 One of the critical steps involved in interpreting the agreements is acceptance of the proposition that the arbitration agreement in this case is not “a domestic arbitration agreement” as defined by the Act. Acceptance of this proposition depends on understanding the word “seat” in the arbitration agreement in the sense explained by the Chief Justice and the President. In the developing international lex mercatoria, this word has, for a variety of reasons, become widely accepted as carrying that technical sense. Although this has happened only comparatively recently, I think it is quite sufficiently established to justify, if not to require, this court to adopt it in interpreting the documentation in the present case. 123    I also agree with the costs orders proposed by the Chief Justice and the President.

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