Arbitration in light of the recent High Court decisions of Tesseract and CBI Contractors - Part 1

In 2024, the High Court delivered two judgments of great significance in commercial, arbitration, and construction practice: Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24 CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28 The first decision concerned the proportionate liability scheme under SA law and whether it could be invoked by a respondent in an arbitration, even though the tribunal could not join any alleged concurrent wrongdoers and primacy of the inter partes agreement as to disputes. The second decision concerned whether the Supreme Court of Western Australia had the power under s 34(2)(a)(iii) of the Commercial Arbitration Act 2012 (WA) to set aside a subsequent award on the grounds that the tribunal's authority ceased when it issued the earlier award, and the tribunal was then functus officio, and, if so, what standard was the power to be exercised. Greenway Chambers is presenting two CPDs (1 point each) which will examine each decision and the extent to which they affect the law and the practice of law. The first CPD will focus on the law arising from each decision (substantive law stream). The second CPD shall address the practical and procedural issues arising from each decision, including the drafting of arbitration agreements and the conduct or arbitration (professional skills stream). Frank Hicks SC appeared for Pascale Construction before the SA Court of Appeal and the High Court in Tesseract International, and is generally briefed in international and domestic arbitrations in commercial and construction disputes. Stephen Ipp is regularly engaged as counsel for commercial and construction arbitrations, and has appeared on panels and presentations concerning the law in this area. Adele Carr is frequently engaged as junior counsel for arbitrations and disputes, and each of the Greenway barristers involved in this CPD brings a wealth of experience and knowledge to the issues for discussion.