An appeal against the decision in Chevron Australia Pty Ltd v CBI Constructors Pty Ltd. The primary proceedings involved applications by the respondent (Chevron) against the appellants, CKJV, under the Commercial Arbitration Act 2012 (WA) in respect of an arbitral award made in favour of CKJV. Chevron applied to set aside the award under s 34(2)(a)(iii) of the Act. Kenneth Martin J upheld Chevron’s application and set aside the award. In these proceedings, CKJV appealed that order and an associated cost order.
The arbitration proceedings concerned a contractual dispute involving a claim by CKJV in respect of its alleged entitlement to the reimbursement of costs of ‘Staff’ and other services provided to Chevron in relation to Chevron’s offshore oil and gas project known as the Gorgon project. The dispute arose over CKJV’s contention that Chevron had underpaid it, and Chevron’s contention (by counterclaim) that CKJV had overcharged it.
The dispute was referred to arbitration where the Tribunal ordered the bifurcation of the hearing. The first to address liability, the second to address quantum. After the delivery of the first interim award the contractor pleaded a ‘Contract Criteria Case’ which the principal objected to as a further liability claim alleging the arbitral tribunal was functus offico on issues of liability.
The application to set-aside the arbitral award was successful.
Shane Doyle KC (with S J Davis) appeared, at first instance and on appeal, for the respondent, instructed by Norton Rose Fulbright.
The judgment is available here.
Shane spoke alongside Sarah Spottiswood and Chiann Bao as part of the Australian Arbitration Week 2021 program on ‘Functus Officio in Arbitration’. The video and podcast recording of the presentation, as well as the PowerPoint and transcript, are published here.
