HongKong Henson Industrial Limited v Victorian Ferries Pty Ltd [2021] FCA 1450

Andrew Orford  |  Petrina Macpherson  |  Gemma Galloway

Key takeouts

The requirement to produce a ‘duly certified copy’ of an arbitration agreement under section 9 of the International Arbitration Act 1974 (Cth) will be satisfied where the agreement is exchanged in electronic counterparts over email and the original signed version or a certified copy is missing.

Facts

HongKong Henson Industrial Limited (HHIL) applied to the Federal Court to enforce a Singapore International Arbitration Centre (SIAC) Final Award (award) against Victorian Ferries Pty Ltd (VFPL) as if the award were a judgment of the Federal Court. The award purported to have been made under an arbitration agreement contained within a contract executed by the parties electronically exchanging printed and scanned versions of the contract that were signed and sealed. HHIL was unable to produce either an original signed and sealed version or a certified copy of the arbitration agreement, contrary to section 9 of the International Arbitration Act 1974 (Cth) (Act). The Federal Court was required to consider whether it was sufficient for a copy of the contract containing the arbitration agreement to be relied upon.

Decision

Colvin J allowed the application and HHIL was entitled to enforce the award against VFPL as if it were a judgment of the Federal Court. The original version of the contract was comprised of two electronic counterparts (the electronic version that was received by HHIL and the electronic version that was sent). Printed versions of both counterparts were provided by a witness (a HHIL employee).

Colvin J was satisfied that the original arbitration agreement was deemed to be certified, either because:

• the full text of the arbitration agreement was contained in the award, which had been authenticated by the arbitrator (in accordance with section 9(2) of the Act); or
• the affidavit evidence established that the versions produced were true copies of the electronic counterparts (in accordance with section 11 of the Electronic Transactions Act 1999 (Cth)).

His Honour concluded that the award was a foreign award for the purposes of the Act as the requirements of section 9 of the Act were met. HHIL was therefore entitled to have the award recognised and enforced in Australia.