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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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Call for Papers: XXII Conference of Young Scholars of International Legal Studies, University of Ferrara
On 4–5 December 2025, the Department of Law at the University of Ferrara will host the XXII edition of the Conference of Young Scholars of International Legal Studies, dedicated to “The Principle of Good Faith in International and European Union Law”.
The organizers have issued a call for papers open to scholars of public and private international law and EU law, who are currently enrolled in a PhD program or who have obtained their PhD no more than five years ago.
To apply, authors must submit an abstract (no more than 600 words), in either Italian or English, along with a curriculum vitae, by 22 June 2025, to the following email address: giovaniinternazionalisti2025@gmail.com.
Further information is available here.
The Pax Moot teams solved the “impossible” case of SSF versus Telerel and the Watermelon companies
The Ulrich Huber round of the Pax Moot competition ended on Friday in the Meuse-Rhine Euroregion, at the University of Maastricht to be precise.
During three fierce days 34 Moot teams from all over Europe and as far as Georgia, Kazakhstan, India, Singapore and Uzbekistan pleaded against each other. They argued about whether self-employed content moderators for social media companies could be considered employees; about how to locate the damage that consists of the stress and mental health harm suffered by these digital nomads; about whether a UK subsidiary of an Irish company could be considered to be domiciled in the EU; about whether the proceedings instituted by a foundation under the Dutch WAMCA should be characterised as contract or tort; about whether a settlement in front of a UK court could be recognised under the 2019 Hague Judgments Convention and much more. They relied on old and new case law, reports and legal scholarship.
At the end, the University of Ljubljana won the competition, with Jindal Law School as the runner-up. The other two teams that made it to the semi-finals were the Universities of Sofia and Paris-Saclay.
The prize for the best memorials went to ESADE Law School, with the University of Ghent in second place, and Paris Dauphine and Sofia Universities in shared third places.
Jana Ušen won the best pleader’s award, followed by Brin Smole, both of Ljubljana University. In the third position was Joshua Tan and in fourth Ong Xin Yan, both of Singapore Management University.
Under the inexhaustible leadership of Marta Pertegás, expect the Pax team to be back with a new case in October/November, to be pleaded in Sofia in roughly one year’s time. Pax Moot is co-funded b y the European Commission.
Reciprocity in the Recognition and Enforcement of Foreign Judgments: Two Recent Contributions
Reciprocity in the field of recognition and enforcement of foreign judgments has long been a subject of passionate debate. While some scholars question its desirability, others firmly defend it as a legitimate legal requirement. What remains undeniable is that the topic continues to spark intense discussion and scholarly interest.
A clear illustration of this ongoing debate is provided by two recent publications addressing the issue from different perspectives and jurisdictions.
The first is an enlightening open-access article by Eszter PAPP and Nobumichi TERAMURA, titled “Enforcing Singapore Judgments in Cambodia: Reciprocity Under the Loupe“. The paper explores the practical and legal challenges related to the enforcement of Singaporean money judgments in Cambodia, with a specific focus on the requirement of reciprocity. Read more