Siemens WLL v BIC Contracting LLC

Case [2022] FCA 1029

FEDERAL COURT OF AUSTRALIA

Siemens WLL v BIC Contracting LLC [2022] FCA 1029

File number: NSD 1152 of 2021
Judgment of: STEWART J
Date of judgment: 30 August 2022
Date of publication of reasons: 2 September 2022
Catchwords:

ARBITRATION – application for enforcement of foreign arbitral award under s 8(3) of the International Arbitration Act 1974 (Cth) – where award debtor has not appeared – sufficiency of evidence of duly authenticated original award and original arbitration agreement – where awards transmitted by email only – where awards for sums are in foreign currency – where judgment is sought in Australian dollars – appropriate date for conversion

STATUTORY INTERPRETATION – International Arbitration Act 1974 (Cth) – whether enforcement of a foreign award requires that the award was made in a Contracting State to the New York Convention

Legislation:

International Arbitration Act 1974 (Cth) ss 3(1), 8, 9, Sch 1 Art I

Federal Court Rules 2011 (Cth) r 28.44

Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature 10 June 1958, 330 UNTS 3 (entered into force 7 June 1959)

Accession by Australia, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 962 UNTS 364

Accession by the United States of America, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 751 UNTS 398
Cases cited:

ACN 006 397 413 Pty Ltd v International Movie Group (Canada) Inc [1997] 2 VR 31

China Sichuan Changhong Electric Co Ltd v CTA International Pty Ltd [2009] FCA 397

EBJ21 v EBO21 [2021] FCA 1406; 395 ALR 310

HongKong Henson Industrial Ltd v Victorian Ferries Pty Ltd [2021] FCA 1450

Kingdom of Spain v Infrastructure Services Luxembourg Sàrl (No 3) [2021] FCAFC 112; 392 ALR 443

TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533

Tianjin Jishengtai Investment Consulting Partnership Enterprise v Huang [2020] FCA 767

Transpac Capital Pte Ltd v Buntoro [2008] NSWSC 671

Trina Solar (US) Inc v Jasmin Solar Pty Ltd [2017] FCAFC 6; 247 FCR 1
Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: International Commercial Arbitration
Number of paragraphs: 35
Date of hearing: 31 August 2022
Counsel for the Applicants: C Freeman
Solicitor for the Applicants: Squire Patton Boggs (AU)
Counsel for the Respondent: The Respondent did not appear

ORDERS

NSD 1152 of 2021
BETWEEN:

SIEMENS WLL

First Applicant

SIEMENS AG

Second Applicant
AND:

BIC CONTRACTING LLC

Respondent

ORDER MADE BY:

STEWART J

DATE OF ORDER:

30 AUGUST 2022

THE COURT ORDERS THAT:

1.Judgment be entered for the applicants against the respondent in the amount of $45,452,098.42.

2.Judgment be entered for the first applicant against the respondent in the amount of $2,823,284.32.

3.Judgment be entered for the second applicant against the respondent in the amount of $4,209,761.85.

4.Interest be payable on the amounts owing under paragraphs 1-3 of these orders at the interest rate prescribed by r 39.06 of the

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Siemens WLL v BIC Contracting LLC [2022] FCA 1029
Case
[2022] FCA 1029
Decision Date

CaseChat Overview and Summary

The case of Siemens WLL v BIC Contracting LLC concerned an application by Siemens for the enforcement of foreign arbitral awards made by the London Court of International Arbitration (LCIA) and the International Chamber of Commerce (ICC) against BIC Contracting LLC. Siemens, the applicant, sought to enforce awards for specific sums of money issued by the arbitral tribunals in foreign currencies. The Federal Court of Australia was tasked with determining whether the arbitral awards could be enforced under the International Arbitration Act 1974 (Cth).

The legal issues central to the decision involved the sufficiency of evidence required under the International Arbitration Act for the enforcement of foreign arbitral awards. Siemens had to demonstrate that the arbitral awards were duly authenticated and that the original arbitration agreements were produced or certified. Siemens did not have hard copy originals of the awards or agreements, but had received them by email from the LCIA and ICC. Siemens also needed to address the conversion of foreign currency awards into Australian dollars and establish the appropriate date for conversion.

The court found that the awards were sufficiently authenticated as they were signed by all members of the arbitral tribunals and transmitted by the secretariats of the LCIA and ICC, in accordance with their rules. The arbitration agreements were considered sufficiently certified as they were deposed to by a partner of Siemens’ solicitors, who was responsible for the arbitral proceedings. The court held that the requirements of section 9 of the International Arbitration Act were met, including the need to demonstrate non-payment of the awarded sums by the respondent. The court also determined that the appropriate date for converting the foreign currency awards into Australian dollars was the date of the application for enforcement.

The final orders of the court included judgment for Siemens against BIC Contracting LLC in specified amounts, with interest from a particular date, and orders for the payment of costs. Siemens was granted liberty to apply for their costs to be assessed on a lump sum basis based on the papers.

Orders

Orders of the court

1. Judgment be entered for the applicants against the respondent in the amount of $45,452,098.42.

2. Judgment be entered for the first applicant against the respondent in the amount of $2,823,284.32.

3. Judgment be entered for the second applicant against the respondent in the amount of $4,209,761.85.

4. Interest be payable on the amounts owing under paragraphs 1-3 of these orders at the interest rate prescribed by r 39.06 of the Federal Court Rules 2011 from 31 August 2022.

5. The respondent pay the applicants’ costs of the application.

6. The applicants have liberty to apply for their costs to be assessed on a lump sum basis on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 9 of the IAA relevantly provides:9 Evidence of awards and arbitration agreements(1)In any proceedings in which a person seeks the enforcement of a foreign award by virtue of this Part, he or she shall produce to the court:(a)the duly authenticated original award or a duly certified copy; and(b)the original arbitration agreement under which the award purports to have been made or a duly certified copy.(2)For the purposes of subsection (1), an award shall be deemed to have been duly authenticated, and a copy of an award or agreement shall be deemed to have been duly certified, if:(a)it purports to have been authenticated or certified, as the case may be, by the arbitrator or, where the arbitrator is a tribunal, by an officer of that tribunal, and it has not been shown to the court that it was not in fact so authenticated or certified; or(b)it has been otherwise authenticated or certified to the satisfaction of the court.…(5)A document produced to a court in accordance with this section is, upon mere production, receivable by the court as prima facie evidence of the matters to which it relates. Siemens do not have authenticated or certified hard copy originals of the arbitration awards for the purpose of satisfying the requirement in s 9(1)(a). However, the arbitral awards were provided to Siemens by the secretariats of each of the LCIA and the ICC by email, and each award has apparently been signed by all three members of the arbitral tribunals. The rules of both the LCIA and the ICC permit the transmission of awards by electronic means by officers of their secretariats. I am therefore satisfied that the awards relied on by the applicants fulfil the requirement of authentication in s 9(1)(a) with reference to s 9(2). With reference to the requirement in s 9(1)(b) that Siemens produce to the court the original arbitration agreements under which the awards purports to have been made, or a duly certified copy, Siemens has produced copies of the agreements under cover of an affidavit by Thomas Philip Wilson. Mr Wilson is a partner of the applicant’s solicitors in Abu Dhabi, UAE, who was primarily responsible for the conduct of the arbitral proceedings on behalf of Siemens. Mr Wilson deposes to the agreements annexed to his affidavit being true copies of the agreements in question. This is similar to the basis on which the arbitral award in HongKong Henson Industrial Ltd v Victorian Ferries Pty Ltd [2021] FCA 1450 at [13] was accepted by Colvin J as certified or authenticated. I am therefore satisfied that the agreements fulfil the requirements of s 9(1)(b), particularly with reference to s 9(5).Rule 28.44 requirements Rule 28.44 of the Federal Court Rules 2011 sets out a number of requirements for the enforcement of a foreign award under s 8(3) of the IAA. I am satisfied that each of those requirements has been met. Relevantly, the affidavit of Evangelos Volidis, a Commercial Project Director at Siemens who has access to the books and records of the Siemens companies, states that those books and records show that no payments have been received in compliance with the arbitral awards. The various schedules, to which I will shortly refer, prepared by David Starkoff, the applicants’ Sydney solicitor, also reflect nothing having been paid by BICC.Quantum and exchange rates

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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