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Tesseract: Don’t Over-React! The High Court of Australia, Proportionate Liability, Arbitration, and Private International Law
By Dr Benjamin Hayward
Associate Professor, Department of Business Law and Taxation, Monash Business School
X: @LawGuyPI, @MonashITICL
On 7 August 2024, the High Court of Australia handed down its long-awaited decision in Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24. The dispute arose out of a domestic commercial arbitration seated in South Australia, where the Commercial Arbitration Act 2011 (SA) is the relevant lex arbitri. That Act is a domestically focused adaptation of the UNCITRAL Model Law on International Commercial Arbitration (with its 2006 amendments).
The respondent to the arbitration sought to rely upon proportionate liability legislation found in the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) and in the Competition and Consumer Act 2010 (Cth). The High Court was asked to determine whether those proportionate liability regimes could be applied in the arbitration. A very practical difficulty arose here, reflected in Steward J noting (in dissent) that the High Court was ‘faced with an invidious choice’: see [228]. Were the proportionate liability laws not to apply in the arbitration, the respondent might find themselves liable for 100% of the applicant’s loss, when they would not be liable to that same extent in court proceedings applying the same body of South Australian law. But were the proportionate liability laws to apply, the applicant might find themselves able to recover only a portion of their loss in the arbitration, and might then have to then pursue court proceedings against another third party wrongdoer to recover the rest: given that joinder is not possible in arbitration without consent. Read more
First Thai Monetary Judgment Enforced in China, Highlighting Presumptive Reciprocity in China-ASEAN Region
This post is kindly provided by Dr. Meng Yu, lecturer at China University of Political Science and Law, and co-founder of China Justice Observer.
Key Takeaways:
- In June 2024, the China-ASEAN Free Trade Area Nanning International Commercial Tribunal under the Nanning Railway Transportation Intermediate Court in Guangxi ruled to recognize and enforce a Thai monetary judgment (Guangxi Nanning China Travel Service, Ltd. v. Orient Thai Airlines Co., Ltd. (2023) Gui 71 Xie Wai Ren No. 1).
- Apart from being the first case of enforcing Thai monetary judgments in China, it is also the first publicly reported case confirming a reciprocal relationship based on “presumptive reciprocity”.
- The Chinese court’s confirmation that “presumptive reciprocity”, as outlined in the Nanning Statement, is a form of mutual consensus between China and ASEAN countries helps to promote the circulation of judgments within the China-ASEAN region.
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CoL.net Virtual Roundtable on the Commission’s Rome II Report
ConflictofLaws.net will be hosting an ad-hoc virtual roundtable on the Commission’s Rome II Report
on 11 March 2025, 12pm–1.30pm (CET).
The conversation will focus on the long-awaited report published by the Commission on 31 January 2025 and its implications for a possible future reform of the Regulation.
The event will feature the following panellists:
Rui Dias
University of Coimbra
Thomas Kadner Graziano
University of Geneva
Xandra Kramer
Erasmus University Rotterdam
Eva Lein
University of Lausanne &
British Institute of International and Comparative Law
Tobias Lutzi
University of Augsburg
Everyone interested is warmly invited to join via this Zoom link.
Registration open: Australasian Association of Private International Law inaugural conference, Brisbane, Australia, 16-17 April 2025
Registration is now open for the inaugural conference of the Australasian Association of Private International Law, to be held at the Ship Inn conference centre at Southbank, Brisbane from 16-17 April 2025.
The program features panels on
• Private International Law and Technology;
• Anti-suit and Anti-enforcement Injunctions;
• Private International Law and Climate Change; and
• Prenuptial Agreements.
Attendance at conference sessions can be used for CPD; check local requirements.
Conference fees
Reduced fees apply to members of AAPrIL. You can join the Association at https://aapril.org/membership/
Member (2 days) $110
Member (1 day) $60
Non-member (2 days) $150
Non-member (1 day) $80
Student: Free to attend the conference only.
Conference dinner: $110 for a three course meal and a selection of drinks
Aboute AAPrIL
The Australasian Association of Private International Law (AAPrIL) is a group of people committed to furthering the understanding of private international law in Australia, New Zealand and the Pacific region.
AAPrIL was founded in 2024 by private international lawyers from Australia and New Zealand who have known one another for years through engaging with the discipline of private international law, including through conferences of the Journal of Private International Law, meetings of the Hague Conference on Private International Law, and numerous other academic activities. The inuagural AAPrIL President is Professor Mary Keyes. The Hon Andrew Bell, Chief Justice of New South Wales.
Bi-Annual Conference of the Wissenschaftliche Vereinigung für internationales Verfahrensrecht (27–29 March, Münster)
The German Wissenschaftliche Vereinigung für internationales Verfahrensrecht, an association of German-speaking academics working on questions of international civil procedure law, will be holding its bi-annual conference at the University of Münster on 27–29 March 2025. The event is only open to members of the association.
The full programme can be found here; registration is possible here.