Stantec New Zeland and others v. Fiji Roads Authority

As I recorded in my Minute issued this morning, the plaintiffs have applied to have an arbitral award given in Fiji to be entered as a judgment of this Court.

No notice of opposition has been filed. Instead, there was an appearance under protest to jurisdiction filed on 27 October 2022. This was met by an interlocutory application on notice for orders setting aside the notice of appearance under protest to jurisdiction.

This morning Mr Kuddus for the defendant advised me that his instructions are no longer to pursue the appearance under protest to jurisdiction. That was wise. The law is clearly against him. Accordingly, I granted the plaintiffs' application for orders setting aside the notice of appearance and I made an order as to costs in favour of the plaintiffs.

However, that did not end the matter. Mr Kuddus made an oral application for leave to file a notice of opposition to the substantive application to enter the arbitral award as a judgment of this Court. Mr Salmon KC for the plaintiffs opposed the application for extension of time.

Mr Kuddus understood that extensions of time to oppose applications for recognition of an arbitral award are not readily granted. That is because of the policy of the Courts to enforce arbitral awards without undue delay and therefore to take seriously the prescribed time limits for opposing the enforcement of an arbitral award. However, Mr Kuddus pointed me to Article 36(1)(a)(i) of the Arbitration Act 1996 which gives as a ground for refusing recognition if the arbitration agreement is not valid under the law to which the parties have subjected it. Mr Kuddus submitted that his instructions are that there is a ruling of the High Court of Fiji to the effect that the arbitration agreement in question is not valid under the law of Fiji.

I stood the matter down to allow Mr Kuddus to supply the Court and the plaintiffs with copies of the decision upon which he relies and to make any related submissions.

Having resumed the hearing, I had regard to Mr Kuddus's memorandum. He relies on the judgment of Judge Lyone Seneviratne of 14 September 2018.¹ That judgment, which I will come to later for background, essentially held that the International Arbitration Act 2017 does not apply to the arbitration in question. Accordingly, the Court held that the dispute between the parties relating to the arbitration is governed by the provisions of the Arbitration Act 1965. As a result, Mr Kuddus submits:

It is submitted that the High Court of Fiji held that the International Arbitration Act 2017 does not apply, thereby, ruling that the matter cannot be arbitrated in the International Chamber of Commerce and that any arbitration would have to happen in Fiji by local arbitrators given that the fact that the parties had agreed to accede to the Fijian Jurisdiction by virtue of the Agreement.

Mr Salmon has filed a memorandum which goes through the procedural background of the litigation in Fiji. Essentially, and despite the provisions of the arbitration agreement, the defendant commenced a proceeding against the plaintiffs in the Courts of Fiji. It is quite clear that the arbitration agreement itself provided for arbitration within the context of the International Chamber of Commerce:

If the Dispute cannot be resolved within 15 business days of commencement of mediation (or within any extended time agreed to in writing between the parties), the mediation shall cease and either party may submit the Dispute for Arbitration in accordance with the then existing rules and regulations of the Rules of Conciliation and the Arbitration of the International Chamber of Commerce. Judgment upon the Arbitrator's award shall be final and binding and may be enforced by any court of competent jurisdiction. The prevailing party in any action arising under this Contract shall be entitled to its costs of litigation, including reasonable legal fees.

It is also quite clear that the Fijian Courts have not said that the arbitration agreement is invalid under the laws of Fiji. The Courts have gone no further than to hold that the 1965 Act applies rather than the 2017 Act. Both are procedural. Neither purports to limit the ability of parties to enter into a contract setting out the nature and form of the arbitration they would enter into if necessary.

The proceeding filed by the defendant against the plaintiffs has stalled. Various appeals to the Fiji Court of Appeal by the plaintiffs have had some success or otherwise not been carried forward because of a combination of the effect of Covid and (apparently) the notes of Seneviratne J have not been able to be located. Nevertheless, the parties went to arbitration and the arbitrator held that there was jurisdiction.

The position, therefore, is that the plaintiffs have established a right to enter the arbitral award as a judgment of this Court. The defendant has not established a prima facie case for a ground for refusing recognition or enforcement. To the contrary, on the material before me there is neither a statutory bar in the law of Fiji to that which the plaintiffs seek, nor is there any adverse ruling of a Court of competent jurisdiction to what the plaintiffs seek.

Finally, I note that Mr Kuddus submitted that the defendant, having withdrawn its protest to jurisdiction, should be allowed to file a notice of opposition as of right. That is because it could not previously file a notice of opposition because, had it done so, it would have rendered nugatory its protest to jurisdiction. That might be, but the law is that the defendant had to choose. Absent a reason going to the interests of justice, meaning a good case for the existence of a ground for refusing recognition or enforcement, permission will not be given to file a notice of opposition.

The defendant's application for leave to file a notice of opposition is declined.

The plaintiffs' application to have the arbitral award entered as a judgment of this Court is granted.

I consider the plaintiffs are also entitled to costs, and I award them on a 2B basis.