Tag Archive for: Australia

Of Hints, Cheats, and Walkthroughs – The Australian Consumer Law, The Digital Economy, and International Trade

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By Dr Benjamin Hayward

Those who enjoy playing video games as a pastime (though certainly not in the competitive esports environment) might take advantage of different forms of assistance when they find themselves stuck.  Once upon a time, they might have read up on tips and tricks printed in a physical video game magazine.  These days, they are more likely to head online for help.  They might seek out hints – tidbits of information that help point the gamer in the right direction, but that still allow them to otherwise work out a solution on their own.  They might use cheats – which allow the gamer ‘to create an advantage beyond normal gameplay’.  Otherwise, they might use a walkthrough – which, as the name suggests, might walk a player through the requirements of perhaps even ‘an entire video game’.

Despite initial appearances, these definitions do more than just tell us about recreation in general, and gaming culture in particular.  They also help us understand the state of play in relation to the Australian Consumer Law’s application to the digital economy, and, in turn, the ACL’s implications for international digital economy trade.

This video game analogy is actually very apt: gaming set the scene for recent litigation confirming the ACL’s application to off-shore video game vendors.  In the Valve case concerning the Steam computer gaming platform, decisions of the Federal Court of Australia and (on appeal) its Full Court confirmed that reach, via interpretation of the ACL’s s 67 conflict of laws provision.  The High Court of Australia denied special leave for any further appeal.  In the subsequent Sony Europe case, concerning the PlayStation Network, liability was not contested.  On the other hand, there was a live issue in Valve – at least at first instance – as to whether or not video games constitute ‘goods’ for the purposes of the ACL’s consumer guarantees.  The ACL’s statutory definition of goods includes ‘computer software’.  Expert evidence, not contested and accepted by the Federal Court, treated computer software as equivalent to executable files; which may work with reference to non-executable data, which is not computer software in and of itself.

Understanding the ACL’s definition of ‘goods’ has significant implications.  The ‘goods’ concept is a gateway criterion: it determines whether or not the ACL’s consumer guarantees apply, and in turn, whether it is possible to mislead consumers about the existence of associated rights.  So far as digital economy trade is concerned, case law addressing Australia’s regular Sale of Goods Acts confirms that purely-digital equivalents to traditional physical goods are not ‘goods’ at common law.  Any change to this position, according to the New South Wales Supreme Court, requires statutory intervention.  Such intervention did occur when the Trade Practices Act 1974 (Cth) transitioned into the Competition and Consumer Act 2010 (Cth).  Now, ‘computer software’ constitutes a statutory extension to the common law definition of ‘goods’ that would otherwise apply.

It is against all this context that a very recent decision of the Federal Court of Australia – ACCC v Booktopia Pty Ltd [2023] FCA 194 – is of quite some interest.  Whilst most of the decision is uncontroversial, one aspect stands out: the Court held, consistently with Booktopia’s admission, that eBooks fall within the scope of the ACL’s consumer guarantee protections.  This finding contributed to an AUD $6 million civil pecuniary penalty being imposed upon Booktopia for a range of breaches of the ACL.  But is it actually correct?  Whether or not that is so depends upon whether the statutory phrase ‘computer software’ extends to digital artefacts other than traditional desktop computer programs.  There is actually good reason, based upon the expert evidence tendered and accepted in the Valve litigation, to think not.

So what does the Booktopia case represent?  It could be a hint – an indication that will eventually lead us to a fully-explained understanding of the ACL’s wide reach across the digital economy.  In this sense, it might be a pointer that helps us to eventually solve this interpretative problem on our own.  Or it could be a cheat – a conclusion possibly justified in the context of this individual case given Booktopia’s admissions, but not generalisable to the ACL’s normal operation.  Either way, given the ACCC’s expressed view (not necessarily supported by the ACL’s actual text) that ‘[c]onsumers who buy digital products … have the same rights as those who shop in physical stores’, what we really need now is a walkthrough: a clear and reasoned explanation of exactly what ‘computer software’ actually means for the purposes of the ACL.  This will ensure that traders have the capacity to know their legal obligations, and will also allow Parliament to extend the ACL’s digital economy protections if its reach is actually limited in the way that my own scholarship suggests.

All of this has significant implications for international trade, as ‘many transfers’ of digital assets ‘are made between participants internationally’.  The increasing internationalisation and digitalisation of trade makes it imperative that this ambiguity be resolved at the earliest possible opportunity.  Since, in the words of the Booktopia judgment, ACL penalties ‘must be of an appropriate amount to ensure that [their] payment is not simply seen as a cost of doing business’, traders – including international traders – do need to know with certainty whether or not they are subject to its consumer protection regime.

 

Dr Benjamin Hayward
Senior Lecturer, Department of Business Law and Taxation, Monash Business School
Twitter: @LawGuyPI
International Trade and International Commercial Law research group: @MonashITICL

Defending the Rule in Antony Gibbs

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By Neerav Srivastava

 

The Rule in Antony Gibbs[1] (‘the Rule’) provides that if the proper law of a contract is Australian, then a discharge of the debt by a foreign jurisdiction will not be a discharge in Australia unless the creditor submitted to the foreign jurisdiction.[2] The Rule is much maligned, especially in insolvency circles, and has been described as “Victorian”.[3] In ‘Heritage and Vitality: Whether Antony Gibbs is a Presumption’[4] I seek to defend the Rule.

Presumption

The article begins by arguing that, in the modern context, that the Rule should be recognised as a Presumption as to party intentions.

Briefly, Gibbs was decided in the 1890s. At the time, the prevailing view was that the proper law of a contract was either the law of the place of the contract or its performance.[5] This approach was based on apportioning regulatory authority between sovereign States rather than party intentions. To apply a foreign proper law in a territory was regarded as contrary to territorial sovereignty. Freedom of contract and party intentions were becoming relevant to proper law but only to a limited extent.[6]

As for Gibbs, Lord Esher’s language is consistent with the ‘Regulatory Approach’:

It is clear that these were English contracts according to two rules of law; first, because they were made in England; secondly, because they were to be performed in England. The general rule as to the law which governs a contract is that the law of the country, either where the contract is made, or where it is to be so performed that it must be considered to be a contract of that country, is the law which governs such contract …[7]

Notice that the passage makes no reference to party intentions.

By the early 20th century, the position had evolved in that it was generally accepted that party intentions determined the proper law.[8] Even so, it was not until the late 1930s that the Privy Council stated that the position was “well-settled”.[9] Party intentions has evolved into being the test for proper law universally.[10]

Under the modern approach, party intentions as to proper law are a question of fact and not territorial. Parties are free to choose a proper law of a jurisdiction with which they have no connection.[11] As a question of fact, party intentions are better understood as a ‘Presumption’. Further, the Presumption might be displaced. The same conclusion can be reached via an implied term analysis.

The parties can also agree that there is more than one proper law for a contract. That, too, is consistent with party autonomy. Under depeçage, one law can govern a contract’s implementation and another its discharge.[12] Likewise, the Second Restatement in the US[13] and the International Hague Principles allow a contract to have multiple proper laws.[14]

Cross-border Insolvency

The second part of the article addresses criticisms of Gibbs by cross-border insolvency practitioners. In insolvency, issues are no longer merely between the two contracting parties. The body of creditors are competing for a share of a company’s remaining assets. Under pari passu all creditors are to be treated equally. If a company is in a foreign liquidation, and its discharge of Australian debt is not recognised by an Australian court, Gibbs appears inconsistent with pari passu. Specifically, it appears that the creditor can sue in Australia and secure a disproportionate return.

That is an incomplete picture. While the foreign insolvency does not discharge the debt in Australia, when it comes to enforcement comity applies. Comity is agitated by a universal distribution process in a foreign insolvency. Having regard to comity, the Australian court will treat local and international creditors equally.[15] If creditors are recovering 50% in a foreign insolvency, an Australian court will not allow an Australian creditor to recover more than 50% at the enforcement stage. Criticisms of the Presumption do not give due weight to enforcement.

Gibbs has been described as irreconcilable with the United Nations Commission on International Trade Law Model Law on Cross-Border Insolvency 1997 (the 1997 Model Law),[16] which is generally[17] regarded as embodying ‘modified universalism’. That, it is submitted, reflects a misunderstanding.

Historically, in a cross-border insolvency “territorialism” applied.[18] Each country collected assets in its territory and distributed them to creditors claiming in those insolvency proceedings. In the past 200 years, universalism has been applied.[19] Under ‘pure universalism’, there is only one process for collecting assets globally and distributing to all creditors. Modified universalism:

accepts the central premise of [pure] universalism, that assets should be collected and distributed on a worldwide basis, but reserves to local courts discretion to evaluate the fairness of the home-country procedures and to protect the interests of local creditors …[20]

Modified universalism can be understood as a structured form of comity.[21] It asks that all creditors be treated equally but is a tent in that it allows States to choose how to protect the interest of creditors. A State may choose to couple recognition of the foreign insolvency – and the collection of assets in its jurisdiction – with the discharge of creditors’ debts. However, the 1997 Model Law does not require a State to follow this mechanism.[22] Under the Anglo-Australian mechanism (a) a debt may not be discharged pursuant to Gibbs (b), but creditors are treated equally at the enforcement stage. It is a legitimate approach under the tent that is modified universalism.

 

[1] Antony Gibbs & Sons v Société Industrielle et Commerciale des Métaux (1890) 25 QBD 399.

[2] Albert Venn Dicey, A Digest of the Law of England With Reference To The Conflict of Laws (Stevens, 1896) rule 113.

[3] Varoon Sachdev, “Choice of Law in Insolvency Proceedings: How English Courts’ Continued Reliance on the Gibbs Principle Threatens Universalism” (2019) 93 American Bankruptcy Law Journal 343.

[4] (2021) 29 Insolvency Law Journal 61. Available at Westlaw Australia.

[5] Alex Mills, Party Autonomy in Private International Law (CUP, 2018) 53, citing Peninsular and Oriental Steam Navigation Co v Shand (1865) 16 ER 103.

[6] Alex Mills, The Confluence of Public and Private International Law (CUP, 2009), 53.

[7] Antony Gibbs & Sons v Société Industrielle et Commerciale des Métaux (1890) 25 QBD 399, 405 (Gibbs).

[8] Alex Mills, Party Autonomy in Private International Law (CUP, 2018) 56, Lord Collins et al, Dicey, Morris & Collins, The Conflict of Laws (Sweet & Maxwell, 15th ed, 2017), [32-004]–[32-005].

[9] Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277.

[10] Martin Davis et al, Nygh’s Conflict of Laws in Australia (Lexis Nexis, 2019), [19.6]; Lord Collins et al, Dicey, Morris & Collins, The Conflict of Laws (Sweet & Maxwell, 15th ed, 2017), [32-004]–[32-005], [32-042]; and Principles on Choice of Law in International Commercial Contracts promulgated by the Hague Conference on Private International Law in 2015.

[11] Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277, Martin Davis et al, Nygh’s Conflict of Laws in Australia (Lexis Nexis, 2019), [19.15].

[12] Club Mediterranee New Zealand v Wendell [1989] 1 NZLR 216, Olex Focas Pty Ltd v Skodaexport Co Ltd [1998] 3 VR 380.

[13] Restatement (Second) of Contracts § 188.

[14] Principles on Choice of Law in International Commercial Contracts promulgated by the Hague Conference on Private International Law in 2015.

[15] Galbraith v Grimshaw [1910] AC 508, Chapman v Travelstead (1998) 86 FCR 460, Re HIH Casualty & General Insurance Ltd (2005) 190 FLR 398.

[16] In Australia the 1997 Model Law was extended to Australia by the Cross-Border Insolvency Act 2008 (Cth).

[17] Adrian Walters, “Modified Universalisms & the Role of Local Legal Culture in the Making of Cross-border Insolvency Law” (2019) 93 American Bankruptcy Law Journal 47, 64.

[18] Although Rares J has pointed out, “centuries earlier, maritime lawyers had developed a sophisticated and generally harmonious system of dealing with cross-border insolvencies”: Steven Rares, “Consistency and Conflict – Cross-Border Insolvency” (Paper presented at the 32nd Annual Conference of the Banking & Financial Services Law Association, Brisbane, 4 September 2015).

[19] Re HIH Casualty & General Insurance Ltd [2008] 1 WLR 852, [30]; [2008] UKHL 21.

[20] Jay Lawrence Westbrook, “Choice of Avoidance Law in Global Insolvencies” (1991) 17 Brooklyn Journal of International Law 499, 517.

[21] UNCITRAL, Guide to Enactment and Interpretation of the UNCITRAL Model Law on Cross-border Insolvency (2014) [8].

[22] Akers v Deputy Commissioner of Taxation (2014) 223 FCR 8; [2014] FCAFC 57. See too Re Bakhshiyeva v Sberbank of Russia [2019] Bus LR 1130 (CA); [2018] EWCA 2802.

Australian webinar on UNCITRAL Model Law on Electronic Signatures 2001

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Electronic commerce: past, present and future

The UNCITRAL National Coordination Committee for Australia (UNCCA) invites you to attend its Seventh Annual May Seminar, to be held online as a webinar. This year we celebrate the 25th anniversary of the UNCITRAL Model Law on Electronic Commerce 1996, and the 20th Anniversary of the UNCITRAL Model Law on Electronic Signatures 2001.

Both of these Model Laws and the subsequent United Nations Convention on Electronic Communications in International Contracts 2005 have had a profound effect on the regulation of electronic commerce globally. In Australia, all of these developments have been incorporated in the Electronic Transactions Acts passed by the Commonwealth and all States and Territories. During 2020 the relevance of these enactments came to the fore as a result of the COVID pandemic.

In this live, interactive webinar, expert commentators from UNCITRAL and Australia will review the history of these developments in ecommerce, the current state of the law, as well as issues that are being considered for future work nationally and globally.

For more information, see here.

Australia’s first contested ICSID enforcement

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In February, the Federal Court of Australia delivered its judgment on the first contested enforcement of International Centre for Settlement of Investment Disputes (ICSID) awards in Australia. In Eiser Infrastructure Ltd v Kingdom of Spain [2020] FCA 157, the Court enforced two ICSID awards—award of 4 May 2017 in Case No. ARB/13/36, and award of 15 June 2018 as rectified by the award dated 29 January 2019 in Case No. ARB/13/31—against the Kingdom of Spain. The two cases were brought by different applicants but were heard and decided together.

The judgment concerns the interaction of two instruments at the intersection of public and private international law. Firstly, it concerns the Foreign States Immunities Act 1985 (Cth), which gives effect to a restrictive theory of state immunity. Secondly, the judgment concerns the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, opened for signature 18 March 1965, 575 UNTS 159 (entered into force 14 October 1966) (Investment Convention), which is given the force of law in Australia by s 32 of the International Arbitration Act 1974 (Cth).

Stewart J framed the issue for consideration as follows (at [2]):

[I]s a foreign state immune from the recognition and enforcement of an arbitral award made under the Investment Convention notwithstanding that the Investment Convention inherently envisages arbitration awards being made against foreign states and it provides that such awards “shall” be recognised and enforced by Australian courts?

The judgment also contains useful consideration of the distinctions between recognition, enforcement and execution in the context of a common law system.

Background

The underlying dispute was triggered by a change in Spain’s position on subsidies and regulation concerning renewable energy, and the applicant companies’ investments in renewable energy projects in Spain before that change. The changes caused substantial harm to the value of the investments of the applicants, which are incorporated in England & Wales, Luxembourg and the Netherlands.

Before ICSID tribunals the applicants argued that Spain failed to accord fair and equitable treatment to their investments in breach of Art 10(1) of The Energy Charter Treaty (ECT), opened for signature 17 December 1994, 2080 UNTS 95 (entered into force 16 April 1998). They were successful. Spain was ordered to pay hundreds of millions of Euros across two awards.

Spain then made applications for the annulment of the awards, which included stays of enforcement. For a time, each award was stayed. (In Australia, this resulted in a temporary stay of enforcement proceedings: see Infrastructure Services Luxembourg S.A.R.L v Kingdom of Spain [2019] FCA 1220). The stays were then discontinued, allowing enforcement action to proceed in Australia. At the time of writing, Spain had not complied with the awards in whole or in part.

Enforcement of the ICSID awards in Australia

The Commonwealth of Australia is a generally arbitration-friendly jurisdiction. Part IV of the International Arbitration Act 1974 (Cth) deals with the Investment Convention. Section 33(1) provides the basic proposition ‘that [a]n award is binding on a party to the investment dispute to which the award relates’, while s 35 provides that awards may be enforced through the Federal Court of Australia.

How, then, could Spain challenge enforcement of the ICSID awards? It asserted immunity under s 9 of the Foreign States Immunities Act 1985 (Cth), which provides foreign States with general immunity from the jurisdiction of Australian courts. An exception to the general position is provided in s 10(1) for proceedings in respect of which a foreign State has submitted.

The applicant companies argued that the Investment Convention excludes any claim for foreign state immunity in proceedings for the recognition and enforcement of an award. The Court was thus asked to consider whether, ‘by being a Contracting Party to the ECT and a Contracting State to the Investment Convention, Spain submitted to the arbitrations under the Investment Convention which produced the awards they seek to enforce’: [179]. The Court held that Spain had submitted. There was no inconsistency between the Foreign States Immunities Act 1985 (Cth) and the enforcement of the Investment Convention via the International Arbitration Act 1974 (Cth).

The Court thus recognised each of the awards. Spain was ordered to pay the applicant companies hundreds of millions of Euros, plus interest, and costs—the scope of which are still to be determined.

Comments on recognition, enforcement and execution

According to Stewart J, ‘[t]he distinction between recognition and enforcement, on the one hand, and execution on the other, is central to [the] reasons’: [6]. The judgment contains dicta that will be useful for teaching private international law in Australia. There is a helpful passage at [89] ff:

Recognition is a distinct and necessarily prior step to enforcement, but recognition and enforcement are closely linked: Briggs A, The Conflict of Laws (3rd ed, Oxford University Press, Clarendon Series, 2013) 140-141; Clarke v Fennoscandia Ltd [2007] UKHL 56; 2008 SC (HL) 122 at [18]-[23].  An award may be recognised without being “enforced” by a court: TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533 at [23].  Examples would be where an award is recognised as giving rise to res judicata, issue estoppel, cause of action estoppel or set-off, or as a claim in an insolvent estate.  See Associated Electric and Gas Insurance Services Ltd v European Reinsurance Co of Zurich [2003] UKPC 11; [2003] 1 WLR 1041 at [15] as an example of recognition by estoppel.

An arbitral award is enforced through the means of the entering of a judgment on the award, either in the form of a money judgment for the amount of an award or for damages for failing to honour an award.  That form of enforcement by a court is an exercise of judicial power: TCL at [32].  There is some debate in the authorities as to whether an award can be enforced by means of a court making a declaration.  See Tridon Australia Pty Ltd v ACD Tridon Inc [2004] NSWCA 146 and AED Oil Ltd v Puffin FPSO Ltd [2010] VSCA 37; 27 VR 22 at [18]-[20].  It is not necessary to enter upon that debate for present purposes because Art 54(3) of the Investment Convention requires the enforcement of only the pecuniary obligations of an award.  That would seem to exclude declaratory awards, injunctions and orders for specific performance.

An award cannot, however, be executed, in the sense of executed against the property of an award debtor, without first being converted into a judgment of a court: Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd (No 2) [2011] FCA 206; 277 ALR 441 at [12]-[13].  Nevertheless, it is not a strain of language to refer to an award being enforced by way of execution.

Thus, depending on the context, reference to the enforcement of an arbitral award can be used to mean the entering of a judgment on the award to the exclusion of execution or it can mean execution, or it can encompass both.

Recognition and enforcement by judgment on the award is equivalent to what is referred to in civilian jurisdictions as exequatur (see Firebird at [47]-[48] and Briggs A, The Conflict of Laws (3rd ed, Oxford University Press, Clarendon Series, 2013), 139).

Comment

Eiser Infrastructure Ltd v Kingdom of Spain provides plenty to think about for those interested in private international law, public international law, and international arbitration. It confirms the intuition that ICSID awards should be easily enforced in Australia.

However, it begs the question, why Australia? Stewart J speculated that the CJEU’s decision in Slovak Republic v Achmea BV [2018] 4 WLR 87, [60] may have made Australia a more attractive forum for enforcement proceedings in these cases. However, should Spain have any assets in Australia, it may be difficult for the successful companies to get access to them. The High Court of Australia takes a foreign-State-friendly approach to immunity of execution over foreign States’ property. It will be interesting to see what happens next in this dispute.