Amasya submitted that the quantum meruit claim was not a cause of action that was pleaded, developed or argued by Asta, and in particular because it was not addressed during the final oral hearing. Although Asta had claimed to be entitled to be paid on a quantum meruit basis in its original notice of dispute and written submissions, neither of these were on the basis that the Contract had been mutually abandoned. In response, Asta submitted that the issue was raised in its written outline of reply submissions, and that Amasya had notice of the issue at least four days before the final oral hearing, but that neither party chose to address it during the oral hearing. The Law His Honour held that if the award did not comply with section 18 of the Act, this would allow the Court to set aside the award on either of the grounds pleaded by Amasya. However, his Honour made clear that a party being 'unable to present their case' or an award being in conflict with public policy was to be distinct from domestic, judicial considerations of procedural fairness. Errors of fact or law are not grounds to set aside an award under section 18. His Honour identified the relevant test for determining whether an arbitral award falls foul of section 18: 1. Were the parties treated with equality? 2. Was each party given a reasonable opportunity of presenting their case? The first question did not arise in the circumstances, so his Honour turned to the second question, which raised three sub-questions: a. What was "the party's case" in the arbitration? Amasya's case was that a finding that Asta was entitled to a quantum meruit as a consequence of finding that the Contract was mutually abandoned was contrary to law and to 'general considerations of justice and fairness'. b. Was there an "opportunity" to present the party's case? In his Honour's view, the fact that Asta pleaded the entitlement to a quantum meruit on the basis the Contract had been abandoned in their written submissions in reply was sufficient to give Amasya a chance to respond. The fact that it was not raised during oral argument does not mean that Amasya did not have an opportunity to respond to it. c. Did the opportunity amount to a "reasonable opportunity" to present the party's case? His Honour found that Amasya was provided a reasonable opportunity to respond: Asta's claim was raised three full days before the final oral hearing, the nature and complexity of the issue was not such as to require more notice, and the arbitration had been conducted in a way that allowed the parties to amend or supplement their claims once the core issues in dispute had been crystallised.
This article was originally published by the Resolution Institute and copyright belongs to CLAYTON UTZ.