teleMates (previously Better Telecom) Pty Ltd -v- Standard SoftTel Solutions Pvt Ltd [2011] NSWSC 1365

Supreme Court New South Wales

Medium Neutral Citation: teleMates (previously Better Telecom) Pty Ltd -v- Standard SoftTel Solutions Pvt Ltd [2011] NSWSC 1365 Hearing dates: 28 September & 28 October 2011 and written submissions Decision date: 11 November 2011 Jurisdiction: Equity Division - Commercial List Before: Hammerschlag J Decision: Prayers (1) to (5) of the Summons dismissed Catchwords: INTERNATIONAL ARBITRATION - ss 2(b), 16 and 18 International Arbitration Act 1974 (Cth) - Arts 5, 6, 11 and 16 UNCITRAL Model Law - Select Legislative Instrument 2011 No. 10 - challenge to an arbitrator's jurisdiction - arbitration clause in a written agreement between the parties provided that the parties shall agree to appoint an arbitrator and that the arbitral proceedings shall be in accordance with the provisions of the Institute of Arbitrators and Mediators Australia (IAMA) - defendant seeks arbitration and requests IAMA to nominate an arbitrator - IAMA makes a nomination and the arbitrator accepts - plaintiff challenges validity of the arbitrator's appointment - arbitrator rules as a preliminary matter that he has jurisdiction - Art 16(3) of the Model Law provides that an arbitral tribunal may rule on a plea of lack of jurisdiction as a preliminary question and that if it does so and rules that it has jurisdiction, any party may request, in 30 days after having received notice of the ruling, the Court to decide the matter - Art 5 of the Model Law provides that in matters governed by the Model Law, no court shall intervene except so provided in the Model Law - plaintiff brings proceedings after expiry of the 30 day period for declaratory relief that the arbitrator was not validly appointed - held that Court precluded from intervening Legislation Cited: International Arbitration Act 1974 (Cth) Cases Cited: Gold Coast City Council v The Rutherford Group [1980] Qd R 275 Stoltenberg v Doring [1983] 1 NSWLR 121 Heathersage Nominees Pty Ltd v Pineview Holdings Pty Ltd (Supreme Court of Western Australia, 14 September 1990, unreported) Whitfords Beach Pty Ltd v Gadson (1991) 6 WAR 537 Re Contrapac Pty Ltd (Supreme Court of Queensland, 17 July 1992, unreported) David Grant & Co Pty Ltd v Westpac Banking Corp (1995) 184 CLR 265 Texts Cited: Nigel Blackaby et al, Redfern and Hunter On International Arbitration, 5th Ed (2009) Oxford University Press Category: Principal judgment Parties: teleMates (previously Better Telecom) Pty Ltd ACN 115 815 435 - Plaintiff Standard SoftTel Solutions Pvt Ltd - Defendant Representation: Counsel: J.B. Simpkins SC - Plaintiff Solicitors: Sydun & Co Solicitors - Plaintiff File Number(s): 2011/58598