Australia / 08 October 2008 / Australia, Federal Court of Australia / Electra Air Conditioning BV v. Seeley International Pty Ltd / SAD 16 of 2008
Country | Australia |
Court | Australia, Federal Court of Australia |
Date | 08 October 2008 |
Parties | Electra Air Conditioning BV v. Seeley International Pty Ltd |
Case number | SAD 16 of 2008 |
Applicable NYC Provisions | II | II(3) |
Source |
[2008] FCAFC 169, online: AustLII |
Languages | English |
Summary | Seeley International Pty Ltd (“Seeley”), an Australian company, and Electra Air Conditioning BV (“Electra”), a Dutch company, were parties to a distribution agreement by which Electra appointed Seeley as exclusive distributor of Electra’s products in Australia and New Zealand for a period of three years (“the Distribution Agreement”). The Distribution Agreement contained a dispute resolution clause providing for arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations of the Institute of Arbitrators and Mediators Australia. A dispute arose and Seeley initiated proceedings against Electra in the Federal Court of Australia, seeking declaratory relief. Electra applied for a stay of the proceedings, invoking the arbitral clause contained in the Distribution Agreement and s 7 of the International Arbitration Act 1974 (Cth) (“the Act”) (giving effect to NYC Article II(3) by providing that where proceedings instituted by a party to an arbitration agreement to which the Court determines the NYC applies are pending in a court, on the application of another party to the arbitration agreement, the court must stay the proceedings and refer the parties to arbitration). Seeley opposed the application, relying on a proviso found in the arbitral clause stipulating that “nothing in this [clause] prevents a party seeking injunctive or declaratory relief in the case of a material breach or threatened breach of this [Distribution Agreement]”. Electra argued that the proviso should be construed as providing that an arbitrator could grant injunctive or declaratory relief without the need for the parties to go through the procedural steps prescribed by the arbitral clause. It pointed out that the proviso did not expressly refer to injunctive or declaratory relief being granted before a court. At first instance, the judge found that the arbitral clause did not prevent Seeley from seeking declaratory relief before a court. Electra appealed. The Full Court dismissed the appeal, agreeing with the construction of the arbitration agreement given by the Court at first instance. |
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Attachment (1)
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