5. Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd [2015] FCA 1453, [166]. 6. A similar view was recently expressed by Hammerschlag J in Kennedy Miller Mitchell Films Pty Limited v Warner Bros. Feature Productions Pty Limited [2017] NSWSC 1526[63]. His Honour did not refer to Jasmin or consider any competing view based on the structured intergrated .coherence of the New York Convention and the Model Law. 7. Malini Ventura v. Knight Capital Pty Ltd [2015] SGHC 225, [1] 8. Trina Solar (US) Inc v Jasmin Solar Pty Ltd [2017] FCA 1453. 9. (1988) 165 CLR 197), 133-134. 10. See Dicey, Morris and Collins on The Conflict of Laws (15th Edition), [32-108]: The effect of the Rome 1 Regulation on the law applicable to contractual obligations (in force in the United Kingdom) is to refer questions relating to the existence of a contract to the putative governing law. 11. Referring to IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (2011) VR 202 [171] and Dallah Real Estate and Tourism Holding Company v Ministry of Religious Affairs of the Government of Pakistan [2011] 1 AC 763, 77. 12. Trina Solar US, Inc. v JRC-Services LLC and Jasmin Solar Pty Ltd (D NY, 16-CV-2869 VEC). 13. Gary Born, International Commercial Arbitration, vol 1 (Kluwer Law International, 2nd ed, 2014), 493-497.
14. Thus, see Astro Nusantra International BV v PT Ayunda Mitra [2016] CACV 272/2015 where the Hong Kong Court of Appeal followed the Singapore Court of Appeal’s view of jurisdiction in PT First Media TBK v Astro Nusantra International BV [2013] SACA 57, where an international arbitration award made in Singapore was sought to be enforced in Hong Kong. 15. Gary Born, International Commercial Arbitration vol 2 (Kluwer Law International, 2nd ed, 2014), 1052-3. 16. Albert Jan Van den Berg, The New York Arbitration Convention of 1958 (Kluwer Law International, 1981). 17. Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170 [344]: “The separability principle is a rule, reached and laid down pragmatically, rather than logically, by courts in common law and civil law jurisdictions over decades and found in arbitral rules and conventions, that the agreement to arbitrate in the arbitration clause and the substantive agreement in which one finds the clause should be viewed as separate and distinct agreements.”(emphasis added) 18. UNCITRAL, Report of the UNCITRAL on the Work of its Eighteenth Session: Discussion on Individual Articles of the Draft Text (UN Doc A/40/17) (3–21 June 1985) pp 31–32, at [157]–[161]. 19. Born, op cit, p. 495.
About the author
Albert Monichino, QC
Albert Monichino practises as a barrister, arbitrator and mediator practicing in Australia. He has over 20 years experience. He is a Chartered Arbitrator and is accredited as an advanced mediator. He was appointed Senior Counsel in 2010. He has a general commercial litigation practice in the superior Court of Australia, and also in commercial arbitrations (domestic and international). Types of matters handled include:
• Construction and engineering disputes (e.g. acting as senior junior counsel for Fluor in the Fluor v Anaconda arbitration, 2001 – 2003, involving claims exceeding $A1billion); • Fnancial services and investment disputes; • Contractual disputes; • Minority shareholder and joint venture disputes; and • Intellectual property disputes.