distribution agreement. The arbitral tribunal issued two procedural orders during the arbitration, which Enterprise applied to the court to challenge on grounds alleging serious irregularity and error of law. The court dismissed the challenges and held it did not have jurisdiction on the ground that the parties’ agreement to consent to the challenge was not enough to give the court jurisdiction where it otherwise did not exist under the Act.
Australian Case Clarifies Application of Penalties Doctrine
The Australian High Court recently clarified the test for application of the penalties doctrine in Australia. In Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28, the court considered whether bank fees for late payment of credit card bills constituted penalties. The case was an appeal by Paciocco from the Full Federal Court which had held that the late fees were not in fact penalties. In a much anticipated decision, the High Court dismissed the appeal.
In making its decision, the court found that while the late fees were not genuine pre-estimates of damage to ANZ, and were disproportionate to any actual loss suffered by ANZ by the late payment of bills, these factors were not enough to invoke the penalties doctrine. The High Court’s decision emphasised a cautious approach to invoking the penalties doctrine in commercial deals, where the doctrine will be invoked only if the relevant contract provision is totally disproportionate to the legitimate interests of the party its purpose is to protect. While the decision provides more certainty for Australia, the implications of the decision remain to be seen, and it remains open what stance New Zealand courts may take.
Swiss Court Hears Appeal on Russian Blanket Ban from Rio Paralympics
Following the state-sponsored Russian doping scandal at the 2016 Rio Olympics, many were not surprised at the decision of the Court of Arbitration for Sport (CAS) that the Paralympic Organisation was entitled under its Rules to place a blanket ban excluding all Russians from participation in the Rio Paralympics on the grounds of collective guilt for representing a country found to have sponsored and supported doping of athletes. However, the decision was distinctly different to the position taken by the International Olympic Committee, who left the decision up to individual federations to decide on participation. Naturally, the Russians were irate, and appealed the decision to the Swiss Federal Court, somewhat ironically on human rights grounds. The appeal to overturn CAS’s decision was rejected by Switzerland’s highest court which did not have jurisdiction to rule on the substance of the case, only on CAS’s adherence to appropriate procedures in reaching its decision. The effect of the decision on Russia’s Olympic preparation for and participation in the 2018 South Korea Olympics remains to be seen.
SIAC Award Set Aside
In the recent decision of JVL Agro Industries Ltd v Agritrade International Pte Ltd [2016] SGHC 126, the High Court of Singapore set aside a Singapore International Arbitration Centre (SIAC) arbitral award on the grounds of breach of natural justice causing prejudice to the claimant, JVL. The parties had entered into 29