FEDERAL COURT OF AUSTRALIA
Uganda Telecom Limited v Hi-Tech Telecom Pty Ltd [2011] FCA 131
Citation: Uganda Telecom Limited v Hi-Tech Telecom Pty Ltd [2011] FCA 131 Parties: UGANDA TELECOM LIMITED v HI-TECH TELECOM PTY LTD (ACN 098 008 587); HI-TECH TELECOM PTY LTD (ACN 098 008 587) v UGANDA TELECOM LIMITED File number: NSD 171 of 2010 Judge: FOSTER J Date of judgment: 22 February 2011 Catchwords: ARBITRATION – international arbitration – enforcement of foreign award – whether an award made in Uganda pursuant to an arbitration agreement contained in a telecommunications contract between a Ugandan corporation and an Australian corporation should be enforced in Australia – arbitrator proceeded ex parte – no reason not to enforce the award – consideration of grounds for refusing to enforce a foreign award under the International Arbitration Act 1974 (Cth) Legislation: Corporations Act 2001 (Cth)
International Arbitration Act 1974 (Cth), ss 2D, 3, 8, 39, 40, Pt II and Schedule 1
International Arbitration Act Amendment Act 2010, Schedule 1
Arbitration and Conciliation Act Cap 4 Laws of Uganda, 2000 Revised Edition, Pt VI, ss 1, 2, 3, 8, 10, 11, 12, 13, 14, 15, 19, 20, 21, 25, 31, 32, 35, 67 and 68
Federal Court Rules, O 29 r 2(a)Cases cited: Corvetina Technology Ltd v Clough Engineering Ltd (2004) 183 FLR 317 cited
Karaha Bodas Co, LLC v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara 364 F 3d 274 (5th Cir 2004) followed
Parsons & Whittemore Overseas Co, Inc v Société Générale De L’Industrie Du Papier 508 F 2d 969 (2d Cir 1974) followed
Resort Condominiums International Inc v Bolwell [1995] 1 Qd R 406 citedDate of hearing: 6 May 2010 Date of last submissions: 10 May 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 142 Counsel for the Applicant/Cross-Respondent: Mr CP Carter Solicitor for the Applicant/Cross-Respondent: Curwoods Lawyers Counsel for the Respondent/Cross-Claimant: Mr A Cheshire Solicitor for the Respondent/Cross-Claimant: Goldrick Farrell Mullan
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 171 of 2010
BETWEEN: UGANDA TELECOM LIMITED
Applicant/Cross-RespondentAND: HI-TECH TELECOM PTY LTD (ACN 098 008 587)
Respondent/Cross-Claimant
JUDGE:
FOSTER J
DATE OF ORDER:
22 FEBRUARY 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Within seven (7) days of the date of these Orders, the parties file and serve an agreed set of declarations, orders and directions designed to give effect to these Reasons for Judgment.
2.In the event that agreement cannot be reached within the timeframe specified in Order 1 above, each party file and serve within ten (10) days of the date of these Orders its version of the declarations, orders and directions which it submits that the Court should make, together with a brief Written Submission of no more than three pages in length in support of its version.
3.The form of relief will thereafter be determined on the papers.
Note: Settlement and entry of orders is dealt with in Order 36 of…
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- Case
- [2011] FCA 131
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the arbitration agreement in the contract was sufficiently clear and complete, and whether there were any grounds under the International Arbitration Act 1974 (Cth) for refusing to enforce the foreign award. Hi-Tech argued that the arbitration clause was uncertain and thus void because it did not specify the seat of the arbitration, the identity of the arbitrators, the number of arbitrators, the service of documents, the resolution of disputes concerning the appointment of the arbitrators, and the rules governing the arbitration. Additionally, Hi-Tech contended that enforcement of the award without considering its claim for damages for conversion of equipment would be against public policy.
The court found that the arbitration clause was clear and enforceable under Ugandan law, as it mandated that all disputes under or in relation to the contract must be referred to arbitration. The court noted that while the clause did not specify certain procedural details, these could be filled in by the laws of Uganda. Furthermore, the court held that Hi-Tech's claim for damages for conversion of equipment did not provide grounds for refusing to enforce the award, as such claims could be pursued separately after enforcement of the award. The court concluded that there were no valid grounds under the Act for refusing to enforce the award.
Consequently, the court declined to defer enforcement of the award due to Hi-Tech's offsetting claim and ordered that the award be enforced by making an appropriate order for payment in US dollars, including interest up to the date of the order. The court also directed the parties to file and serve agreed declarations, orders, and directions to give effect to the judgment. If the parties could not reach an agreement, they were to file their respective versions within a specified timeframe, after which the court would determine the form of relief. Hi-Tech was ordered to pay the costs of the proceeding.
Orders
Orders of the court
1. Within seven (7) days of the date of these Orders, the parties file and serve an agreed set of declarations, orders and directions designed to give effect to these Reasons for Judgment.
2. In the event that agreement cannot be reached within the timeframe specified in Order 1 above, each party file and serve within ten (10) days of the date of these Orders its version of the declarations, orders and directions which it submits that the Court should make, together with a brief Written Submission of no more than three pages in length in support of its version.
3. The form of relief will thereafter be determined on the papers.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
On 24 February 2010, Curwoods Lawyers filed an Application in this Court on behalf of UTL. In that Application, UTL claimed an order granting leave to UTL to register the Award as a final judgment of the Commonwealth of Australia pursuant to s 8 of the Act, a declaration that Hi-Tech comply with the Award and a declaration that the Award is enforceable. In the alternative, it claimed equitable or common law compensation as well as interest and costs. CONSIDERATIONIssues (a), (b) and (c)—The Issues Concerning the Scope and Effect of Cl 14.2 Under this heading, I shall deal with issues (a), (b) and (c) described at [22] above. The Contract is governed by the laws of Uganda (cl 14.1). Clause 14.2 is infelicitously expressed. However, in my view, the meaning of the clause is clear: All disputes under or in relation to the Contract must be referred to arbitration. Hi-Tech submitted that cl 14.2 was uncertain and thus void because the clause did not address the following matters:(a)The seat of the arbitration;(b)The identity of the arbitrator(s);(c)The number of arbitrators;(d)The service of documents by which the arbitration was initiated;(e)The manner in which any dispute concerning the appointment of the arbitrator(s) was to be resolved; and (f)The rules that were to apply to the arbitration. Hi-Tech also submitted that cl 14.2 was uncertain because it did not specify the law which was to govern the arbitration. It was also submitted that the Court could not fill these alleged gaps by resort to the law governing the implication of contractual terms. In the event that cl 14.2 is held to be void, UTL’s claims to enforce the Award must fail. The Contract was made in Uganda. It is governed by the laws of Uganda. It concerns the provision of services in Uganda. One of the parties to the Contract (UTL) is incorporated in Uganda. Payments under the Contract were required to be made to UTL in Uganda. Hi-Tech’s submissions focussed on alleged omissions from cl 14.2 rather than on ambiguities or uncertainty in the language of cl 14.2. Hi-Tech’s case was that the parties had simply failed to reach agreement on a raft of important matters. As already mentioned at [63] above, I think that the meaning of the clause is clear. The questions for present purposes are: Are at least some of the matters listed at [64] above not covered by cl 14.2 and the laws of Uganda? If so, are the omissions so serious as to render the clause void for uncertainty? The UAA applies to both domestic arbitrations and international arbitrations which take place in Uganda (s 1). The arbitration in the present case was a domestic arbitration in Uganda. Clause 14.2 is an arbitration agreement within the meaning of the UAA. Section 2(1)(c) defines arbitration agreement as follows:“arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not;