Hybrid Arbitration in Construction Contracts: Workable or Risky?

IN THE SUPREME COURT OF VICTORIA

Not Restricted

Commercial Court

Arbitration List

S ECI 2025 06007

DOWNER UTILITIES AUSTRALIA PTY LTD (ACN 075 194 857)	Plaintiff
v
MURRA WARRA ASSET CO PTY LTD (ACN 616 990 508)  AS TRUSTEE FOR THE MURRA WARRA ASSET TRUST	First Defendant
RESOLUTION INSTITUTE (ACN 008 651 232)	Second Defendant
DR CHRISTOPH MORGEN (in his capacity as insolvency administrator with respect to the assets of SENVION GMBH)	Third Defendant
SENVION GMBH (ABN 82 800 200 559)	Fourth Defendant

S ECI 2025 06236

MURRA WARRA ASSET CO PTY LTD (ACN 616 990 508)  AS TRUSTEE FOR THE MURRA WARRA ASSET TRUST	Plaintiff
v
DOWNER UTILITIES AUSTRALIA PTY LTD (ACN 075 194 857)	Defendant

—

JUDGE:	Croft J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2025
DATE OF JUDGMENT:	18 February 2026
CASE MAY BE CITED AS:	Downer Utilities Australia Pty Ltd v Murra Warra Asset Co Pty Ltd
MEDIUM NEUTRAL CITATION:	[2026] VSC 48

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ARBITRATION — Arbitration agreement — Construction — Hybrid arbitration clause providing for arbitration to be ‘conducted by the Resolution Institute in accordance with the ICC Rules of Arbitration’ — Courts to endeavour to give effect to parties’ intention to arbitrate — Workability of hybrid arbitration clauses — Hybrid arbitration presents practical difficulties — Discussion of hybrid arbitration clauses — Consideration of case law on hybrid arbitration clauses — Turns on own facts.

ARBITRATION — Jurisdiction of arbitral tribunal — Arbitrator tribunal entitled to apply Kompetenz‑Kompetenz principle to determine their authority to arbitrate — Inappropriate for Court to determine issues properly before arbitral tribunal — Discussion of indicia of ‘place of business’ for purposes of s 1(3)(a) of the Commercial Arbitration Act 2011(Vic) — Registration as foreign company for purposes of s 601CD of the Corporations Act 2001 (Cth) not indication per se that company has its place of business in Australia. 

—

APPEARANCES:	Counsel	Solicitors
For the Plaintiff in S ECI 2025 06007 &  for the Defendant in S ECI 2025 06236	Mr P Crutchfield KC, Mr M Scott KC,  Mr K Naish	Ashurst
For the First Defendant in S ECI 2025 06007 & for the Plaintiff in S ECI 2025 06236	Dr C Ward SC and Dr C Harris	Pinsent Masons

TABLE OF CONTENTS

Introduction………………………………………………………………………………………………………………………. 1

Background……………………………………………………………………………………………………………………….. 2

Law…………………………………………………………………………………………………………………………………….. 4

Interpretation of arbitration agreements……………………………………………………………………….. 4

Case law on hybrid arbitration clauses………………………………………………………………………….. 5

Jay-Tech Marine……………………………………………………………………………………………………. 6

Insigma…………………………………………………………………………………………………………………. 7

HKL Group…………………………………………………………………………………………………………… 8

Badprim………………………………………………………………………………………………………………. 11

Value Advisory…………………………………………………………………………………………………… 14

Submissions…………………………………………………………………………………………………………………….. 16

Downer’s submissions…………………………………………………………………………………………………. 16

Which Act applies?……………………………………………………………………………………………… 16

Construction question…………………………………………………………………………………………. 17

The stay question………………………………………………………………………………………………… 22

Confidentiality……………………………………………………………………………………………………. 25

Squadron’s submissions………………………………………………………………………………………………. 26

Which Act applies?……………………………………………………………………………………………… 26

Construction question…………………………………………………………………………………………. 28

The stay question………………………………………………………………………………………………… 31

Confidentiality……………………………………………………………………………………………………. 33

Analysis……………………………………………………………………………………………………………………………. 34

Construction question…………………………………………………………………………………………………. 35

Confidentiality…………………………………………………………………………………………………………….. 47

The remaining issues…………………………………………………………………………………………………… 49

Conclusion and orders…………………………………………………………………………………………………….. 49

HIS HONOUR:

Introduction

1. These proceedings concern which of two arbitrations has been properly commenced pursuant to the arbitration agreement in cl 42.5 of the Murra Warra Wind Farm Stage 1: Amended and Restated EPC Contract (EPC Contract), being a contract dated 5 September 2018 between Murra Warra Asset Co Pty Ltd as trustee for Murra Warra Asset Trust (Squadron), Senvion GmbH (Senvion) andDowner Utilities Australia Pty Ltd (Downer).
2. The first arbitration was purportedly commenced by Squadron against Downer on 28 August 2025 with the Resolution Institute (RI arbitration).  The second arbitration was purportedly commenced by Downer against Squadron, Dr Christoph Morgen (in his capacity as Insolvency Administrator with respect to Senvion’s assets, Senvion having entered administration in April 2019) and Senvion, with the International Chamber of Commerce (ICC) on 29 August 2025 (ICC arbitration).
3. By their respective originating motion and originating application, and summonses, Squadron and Downer seek various orders.  In substance:
   1. Squadron seeks declarations:^[1]
      1. regarding the proper construction of the arbitration agreement;
      2. that the RI arbitration has been validly commenced;
      3. that the ICC arbitration was not validly commenced;
      4. that the two arbitrations are domestic arbitrations to which the Commercial Arbitration Act 2011(Vic) applies;
      5. consequent orders restraining Downer from proceeding further with the ICC arbitration; and
      6. costs.
   2. Downer seeks:^[2]
      1. that the RI arbitration either be stayed or that Squadron and the Resolution Institute be enjoined from taking further steps in the RI arbitration;
      2. certain orders in respect of confidentiality; and
      3. costs.
4. The Second, Third, and Fourth Defendants in proceeding S ECI 2025 06007 did not participate in the hearing of Squadron and Downer’s respective applications on 10 December 2025.

Background

5. The genesis of these proceedings lies in the development of Stage 1 of the Murra Warra Wind Farm Project (Project), which involved the construction of Wind Turbine Generators (WTGs) and associated infrastructure.^[3]  A number of agreements are relevant or relate to the dispute:^[4]
   – Murra Warra Wind Farm Stage 1: EPC Contract dated 21 December 2017 between Squadron, Downer and Senvion, as amended by the EPC Contract;
   – Consortium Agreement Murra Warra Wind Farm between Downer, Downer EDI Limited (Downer’s parent company) and Senvion, as amended by the Variation Agreement Consortium Agreement – Murray Warra Wind Farm dated 21 December 2017 (Consortium Agreement); and
   – Letter Agreement – Punch List and Defect Liability Period Protocol between Downer and Squadron dated 2 September 2020 (Defect Liability Period Protocol).
6. The EPC Contract defined Downer and Senvion as, jointly, Contractor and, for present purposes, Squadron as Principal.^[5]  By the EPC Contract, Squadron engaged the Contractor to perform the Works for the Project.  The Project comprised 61 Senvion‑supplied WTGs and, as previously noted, involved infrastructure and shared turbine facilities.  The relationship and division of works between the Contractor was governed by the Consortium Agreement, which, in short, stipulated that Senvion’s role was the design, manufacture, supply, delivery, erection and commissioning of the WTGs, and Downer was responsible for the civil component.^[6]
7. In April 2019, Senvion entered into administration in Germany.^[7]
8. On 19 September 2019, Senvion gave notice to Downer and Squadron that it would no longer perform the EPC Contract.^[8]
9. On 22 October 2019, Anastassiou J, in the Federal Court of Australia, made orders recognising Senvion’s insolvency in Germany as a foreign main proceeding pursuant to the Model Law on Cross‑Border Insolvency (Insolvency Model Law), being sch 1 to the Cross‑Border Insolvency Act 2008(Cth) (Cross‑Border Insolvency Act).  Amongst other orders made by Anastassiou J was that:^[9]

For the purposes of Article 20(2) of the Model Law and s 16 of the [Cross‑Border Insolvency] Act, the scope, and the modification or termination, of the stay and suspension referred to in Article 20(1) of the Model Law with respect to the defendant be the same as would apply if the stay or suspension arose under Part 5.3A in Chapter 5 of the Corporations Act 2001 (Cth) (Corporations Act), and as if:

(a)      Part 5.3A of the Corporations Act applies to the defendant (as a company subject to administration under that Part); and

(b)      References in Part 5.3A of the Corporations Act to the consent of the company’s administrators are taken to be references to the consent of the company.

10. On 30 June 2020, the Works were completed.  A dispute subsequently arose [redacted].^[10]

Law

Interpretation of arbitration agreements

11. The determination of the scope of an arbitration agreement is a determination as to the express or implied agreement of the parties which, as with all contractual interpretation, is conducted by reference to the language used by the parties, the context, and the purpose and object of the agreement.^[11]  Where the text and context permit it, arbitration agreements should be given a broad and liberal construction so as not to splinter or fragment an agreed dispute regime.^[12]  As Hammerschlag J summarised in ASSK Investments Pty Ltd v AMA Group Limited (ASSK Investments):^[13]

The HOA [binding heads of agreement] is a commercial contract which is to be given a business‑like interpretation. Interpreting it requires attention to the language used by the parties, the commercial circumstances which it addresses, and the objects which it is intended it secures. The meaning of the words chosen is determined objectively by reference to its text, context, and purpose, the question being what a reasonable person would have understood them to mean. Preference is given to a construction supplying a congruent operation to the various components of the whole and so as to avoid commercial inconvenience. Where language is open to more than one construction, the Court will prefer a construction which avoids consequences which are capricious, unreasonable, inconvenient or unjust.^[14]

12. Construction is approached objectively.  In this regard, it is not the subjective beliefs or understandings of the parties regarding their rights and liabilities that govern their contractual relations, but rather what each party would have led a reasonable person in the position of the other party to believe through their words and conduct.^[15]

Case law on hybrid arbitration clauses

13. As a definitional starting point, hybrid arbitration clauses are agreements which state that the arbitration rules of one arbitral institution are to be administered by another arbitral institution.^[16]  There are mercifully few cases considering hybrid arbitration clauses and, at present it appears, none from Australia.  Noting that they are of limited precedential value given the differences in the wording of arbitration clauses and of different countries’ approaches to contractual interpretation, a common theme emerging from the case law is that such clauses are upheld, if possible, on the basis of party autonomy, but with the observation that such clauses present practical difficulties to parties when a dispute arises for arbitration.  These were outlined in Flashbird Ltd v Compagnie de Sécurité Privée et Industrielle SARL^[17](Flashbird) as including:

(i) likely jurisdictional disputes and consequent costs; (ii) procedural uncertainty and difficulties consequent upon compelling an arbitration institution to act within an unfamiliar framework; (iii) a ‘patchwork’ of rules, reflecting the best efforts of the arbitration institution rather than the parties’ choice, as a result of the need to adapt the bodies and procedures of the arbitration institution to the chosen rules; and (iv) a dependence on the willingness of the arbitration institution to act in accordance with different institutional rules and uncertainty if the arbitration institution is not prepared to do so.^[18]

14. Indeed, as Carlos Molina Esteban has remarked, ‘virtually all cited decisions consider that hybrid arbitration is a bad idea since it creates problems in terms of certainty and litigiousness’^[19] and, aptly, ‘[h]ybrid arbitration is undoubtedly a bad choice, but parties are entitled to make bad choices’.^[20]  
15. As is explored below in more detail, the cases support the position ultimately advanced by Squadron in these proceedings; namely, that cl 42.5(a) is workable in that it requires arbitration conducted by the Resolution Institute applying such of the ICC Rules as do not involve any administration by the ICC.  The cases also stress party autonomy, with the crucial issue being whether there is a clear agreement to arbitrate their disputes (in which event, the courts will endeavour to make the parties’ agreement work).

Jay-Tech Marine

16. Bovis Lend Lease Pte Ltd v Jay-Tech Marine & Projects Pte Ltd^[21] (Jay-Tech Marine) concerned a dispute arising over a claim by Jay‑Tech Marine for the payment of alleged additional and/or varied works it had carried out as subcontractor completing supply and installation of structural steel works.^[22]  At issue was an arbitration clause which relevantly provided that:^[23]

13.3.2  Unless otherwise agreed by the parties, the arbitrator will be appointed by the President of the Institute of Architects in Singapore (or such other body as carried on the functions of the Institute) or his nominee.

13.3.3  The arbitrator must conduct the proceedings in accordance with Rules of the Singapore International Arbitration Centre.

17. The parties could not agree on an arbitrator, and the question arose as to who the appointing authority should be.  Although cl 13.3.2 provided for the appointing body to be the ‘Institute of Architects in Singapore’ (which the parties took to mean the ‘Singapore Institute of Architects’), the Domestic Rules of the Singapore International Arbitration Centre (SIAC) stipulated that the arbitrator was to be appointed by the chairman of the SIAC irrespective of any contrary indication in the underlying contract.^[24]
18. Noting that the provisions of the arbitration clause were ‘perhaps, not a very wise piece of drafting’, in circumstances where both the domestic and international sets of rules promulgated by the SIAC provide for a situation where the entire arbitration is conducted under the auspices of the SIAC, Prakash J nevertheless observed:

It is difficult to fit an ad hoc arbitration into the format of an SIAC arbitration and if the parties do not intend the SIAC to carry out such functions, they will find that many of the SIAC procedural rules cannot apply to their arbitration. Difficulties of adaptation aside, however, there is no rule of law that prevents the parties from doing exactly what they did.^[25]

19. Noting the importance of party autonomy in arbitration law,^[26] Prakash J upheld the clause as providing for an ad hoc arbitration, one in which the parties appointed an arbitrator by agreement or by the president of the Singapore Institute of Architects; the arbitrator would then decide which of the SIAC rules are to be applied and the extent to which they can be followed in the context of an arbitration that is not administered by the SIAC itself.^[27]

Insigma

20. In Insigma Technology Co Ltd v Alstom Technology Ltd^[28] (Insigma), the Singapore Court of Appeal was asked to rule on the validity of an arbitration agreement in the following terms:

Any and all such disputes shall be finally resolved by arbitration before the Singapore International Arbitration Centre in accordance with the Rules of Arbitration of the International Chamber of Commerce then in effect and the proceedings shall take place in Singapore and the official language shall be English …^[29]

21. Insigma argued that the arbitration agreement was uncertain in that it provided that arbitration should be administered by the SIAC using the ICC Rules which could not be fulfilled as the ICC Rules had many unique features that could not be administered by a non‑ICC institution, and that an arbitration without the involvement of the ICC Secretariat and ICC Court would not bear the ICC’s hallmarks of quality which the parties had bargained for.^[30]  
22. In summary, the Court of Appeal held that party autonomy is to be respected and the intention of parties to resolve their dispute by arbitration is to be given effect to as far as possible,^[31] even if aspects of an agreement may be ambiguous, inconsistent, incomplete or lacking in certain particulars:

so long as the arbitration can be carried out without prejudice to the rights of either party and so long as giving effect to such intention does not result in an arbitration that is not within the contemplation of either party.^[32]

Critically, the SIAC was prepared to administer the arbitration,[33] and had advised the parties how functions otherwise performed by the ICC under its rules would be performed by the SIAC,[34] which had the effect that the arbitration agreement was not unworkable and well within the inherent flexibility of arbitration as a dispute resolution method.[35]  Importantly, the choice of a hybrid form of arbitration was a matter of agreement between the parties and, given the clause was not unworkable or pathological,[36] the agreement ought be given effect.[37]

HKL Group

23. HKL Group Co Ltd v Rizq International Holdings Pte Ltd^[38](HKL Group) concerned an arbitration clause which stated:

Any dispute shall be settled by amicable negotiation between two Parties. In case both Parties fail to reach amicable agreement, all dispute out of in connection with the contract shall be settled by the Arbitration Committee at Singapore under the rules of The International Chamber of Commerce of which awards shall be final and binding both parties. Arbitration fee and other related charge shall be borne by the losing Party unless otherwise agreed.^[39] 

It was common ground between the parties that there was no entity in Singapore named the ‘Arbitration Committee’,^[40] with Rizq submitting, despite the defective nature of the clause, it was clear the parties’ intention was to arbitrate and this intention could be respected by, for example, referring the matter to the SIAC for ad hoc arbitration in accordance with the ICC Rules.^[41]  HKL Group argued, relevantly, that the arbitration clause was so defective as to be inoperable, given the clause referred to a non‑existent entity.^[42]

24. Noting that the Court, when faced with a pathological arbitration clause, generally seeks to give effect to that clause,^[43] Tan AR went on to consider the approach of courts to pathological arbitration clauses,^[44] including discussing the indicia of whether an arbitration clause was pathological and why the particular clause at issue was operative and workable.^[45]  Relevantly, because:

First, it clearly evinces the intention of the parties to resolve any dispute by arbitration. Second, it provides for mandatory consequences in that if a dispute arises, the matter has to be referred to arbitration. Third, it states the place of the arbitration, namely, Singapore. Fourth, it provides that the arbitration is to be governed by a particular set of rules, namely, the ICC rules.^[46] 

25. In upholding the clause, Tan AR nevertheless observed, with respect, entirely appropriately: 

[I]t is by no means easy for any arbitral institution not established for the purpose of conducting an ICC arbitration to do so given the unique rules and structure of the institution needed to conduct an ICC arbitration.^[47]  

Tan AR ultimately stayed the proceeding in favour of arbitration, on the condition that the parties obtain agreement from an arbitral institution in Singapore to conduct an arbitration applying the ICC Rules.^[48]  In concluding his reasons, Tan AR made the following remarks, which are, with respect, apt in this case:  

I must emphasise that while my decision compels the parties to resolve the matter by way of arbitration in the form of a hybrid arbitration applying the ICC rules, as I am empowered to do so under the IAA and giving effect to the arbitration clause as it stands, it in no way impedes the parties from resolving the matter in a more practical manner by now agreeing as between themselves to simply submit the dispute to another form of arbitration, for instance, a straightforward SIAC arbitration, as opposed to a hybrid arbitration applying the ICC rules. Although this is admittedly rare … it is a practical solution which avoids the procedural gymnastics of having the SIAC conduct a hybrid arbitration by applying the ICC rules.^[49]

26. HKL Group was followed, shortly after, by a further decision of Tan AR in HKL Group Co Ltd v Rizq International Holdings Pte Ltd (HKL Group (No 2)).^[50]  In HKL Group (No 2), HKL Group advanced further arguments concerning the imposition of the stay in favour of arbitration.^[51]  Although it is not made clear, it is open to infer that HKL Group advanced further arguments regarding why the arbitration agreement could not be enforced.^[52]  As I read Tan AR’s reasons, HKL Group argued that Art 1(2) of the 2012 ICC Rules precluded a non‑ICC institution applying the ICC Rules (despite the fact that the relevant arbitration agreement was concluded before the introduction of Art 1(2)).^[53]  Regarding this argument, Tan AR made the following observations, which I respectfully endorse:^[54]

Although Art 1(2) of the ICC Rules claims for the International Court of Arbitration the sole authority to administer ICC arbitrations, the power of the rules to bind emanates from the consent of the parties. Art 1(2) cannot curtail the freedom of the parties to agree to be bound by the result of an arbitration administered by a different arbitral institution applying the ICC Rules, neither can it curtail the power of the court to give an interpretation to a pathological arbitration clause, where that clause uses language which admits the possibility of different arbitral institutions, which provides a wider range of solutions to the parties.

I must emphasise, however, that leaving open this possibility of a hybrid arbitration as part of a range of solutions to resolve the problems created by the pathological arbitration clause is in no way a judicial endorsement of a hybrid arbitration. … In the ordinary course of things, hybrid arbitrations should be avoided. In fact, it is inconceivable that commercial parties with the benefit of legal advice will deliberately choose to resolve disputes by way of a hybrid arbitration. But, in this particular context, where parties are faced with the difficulty of overcoming a pathological arbitration clause, it is, in my view, appropriate to avail them as part of a range of solutions, this solution of a hybrid arbitration, inelegant as it may be.

27. For completeness, Tan AR notes that, despite the parties having agreed to submit the dispute to a straightforward SIAC arbitration, HKL Group filed an appeal.^[55]  Based on my review, the appeal, if it occurred at all, did not result in written reasons.

Badprim 

28. Government of the Russian Federation v I.M. Badprim S.R.L.^[56] (Badprim) concerned an appeal against an arbitral award ordering the Russian Federation pay Badprim, a Moldovan construction and contracting company, in excess of €1.8 million.^[57]  The dispute had its origins in a contract between Badprim and the Federal Customs Office of the Russian Federation; specifically a turn‑key contracting agreement for the design and construction of a border crossing post between Mamonovo and Grzechotki, on the border between Russia and Poland.^[58]  The arbitration clause is in somewhat unusual presentation, at least insofar as it is extracted in the report.  ‘Annex B to the agreement’ is set out in the following table:^[59]

Arbitration rules	Cl. 66 of the SC	International Chamber of Commerce (ICC), Paris
Court of Arbitration	Cl. 66 of the SC	Chamber of Commerce and Industry, Stockholm, Sweden
Number of Arbitrators	Cl. 66 of the SC	Three (3)
Language of arbitration	Cl. 66 of the SC	English, official and Russian unofficial translation
Place of arbitration	Cl. 66 of the SC	Stockholm, Sweden

29. ‘Clause 66 of Annex C to the agreement’, as set out in the decision, states:

Arbitration

Unless settled amiciably [sic], any dispute in respect of which the DAB’s decision (if any) has not become final and binding shall be finally settled by international arbitration. Unless otherwise agreed by both Parties a dispute between the Contracting Authority and the Contractor shall be referred to the Court of Arbitration of the Chamber of Commerce and Industry in Stockholm.^[60]

30. For present purposes, Badprim is relevant for what the Svea Court of Appeal said in relation to the validity of the arbitration agreement.  Noting that it could be ‘deemed contradictory’^[61] insofar as it provided that the parties agreed the Stockholm Chamber of Commerce (SCC) shall be the ‘Court of Arbitration’ in accordance with the ICC Rules.  The Svea Court of Appeal noted that it was ‘undisputed’ that the SCC lacked the required organisational structure to administer an arbitration fully compliant with the ICC Rules but nevertheless held, seemingly by reference to extrinsic material and a lack of evidence regarding the Russian Federation viewing ‘the applicability of ICC’s rules of arbitration of determining importance for the validity of the arbitration agreement’,^[62] that:

the agreement between the parties must be understood so that the main purpose was that possible disputes between the parties would be resolved by arbitration and that the purpose was that the arbitration should take place in Stockholm before the SCC. It is undisputed that the SCC agreed to and also did administer the arbitration. Thus, it is clear that the arbitration agreement was enforceable. Under these circumstances, the Court of Appeal finds that the arbitration clause is not invalid. The arbitral tribunal cannot be deemed to have disregarded a joint instruction from the parties by adapting ICC’s rules of arbitration to the organization of the SCC.^[63]

31. Although in dissent on a presently irrelevant issue,^[64] Judge of Appeal PS nevertheless agreed that the arbitration agreement was valid, though for different reasons.^[65]  Judge of Appeal PS’ reasons on this issue are, with respect, concise and worth extracting in full:

The issue can be described as follows. Is an arbitration agreement invalid merely because it provides that an arbitration shall take place under the rules of one arbitration institute, but should be administered by another institute?

At first, an affirmative answer appears obvious, mainly for the following reason. The rules of one arbitration institute – which by way of incorporation becomes agreed between the parties – typically provide that it is specifically that institute (or body within the institute) that shall take measures, assess and decide on various issues. Thus, already the wording of the rules would render it impossible that another arbitration institute could apply them; only the ICC can do that which is provided by ICC’s rules.

However, in my opinion on arbitration agreements of the present nature it must be deemed of determining importance that the parties have actually agreed on arbitration and in such a manner that one arbitration institute should apply the rules of another arbitration institute. If the other arbitration institute does so as well as is possible, then the result is that the parties have achieved that, on which they agreed. Then, it ought not to be possible to complain that various measures, assessments and decisions by the administering arbitration institute may not have been exactly as they would have been if they had been applied by the arbitration institute that devised them.

Thus, in my opinion, an arbitration agreement is not invalid merely because it provides that arbitration shall take place by application of the arbitration rules of one arbitration institute, but be administered by another arbitration institute. Another conclusion might be reached in the event that one arbitration institute has refused to apply the rules devised by another arbitration institute.

In the present case the SCC has administered the arbitration. Initially, the SCC maintained that [it] would do so based on the parties jointly authorizing the institute to adapt ICC’s rules to the organization of the SCC. Even if – which the Government has maintained – the SCC never received such authorization, such an authorization must be deemed included in the arbitration agreement, since it in practice provides that the SCC should apply ICC’s rules, which obviously requires an adaption of those rules, not least to the effect that the SCC will take those measures the rules provide that the ICC should take.

The Government has also maintained that the aforementioned is a joint instruction from the parties, which was disregarded and that the arbitral tribunal thereby exceeded its jurisdiction. That, which the Government has maintained in this respect should be reviewed in the same manner as the above; thus, the arbitral tribunal has not exceeded its jurisdiction granted by the arbitration agreement.^[66]

Value Advisory 

32. Value Advisory Services v ZTE Corporation^[67] (Value Advisory) concerned an application for the enforcement of partial and final awards delivered by an arbitral tribunal constituted under the ICC Rules, pursuant to a request for arbitration filed by Value Advisory with the ICC Secretariat.^[68]  ZTE opposed the enforcement of the awards, relevantly, on the ground that the arbitral procedure was not in accordance with the arbitration agreement insofar as it provided that disputes would be submitted to the SIAC (which had declined to administer the arbitration).^[69]  
33. The arbitration clause is described as providing ‘for disputes to be settled under the ICC Rules and by an arbitral tribunal of three arbitrators to be constituted under the said rules’ and, additionally, providing ‘that the disputes would be submitted to SIAC’.^[70]  The clause provided:

8.         Governing Law and Arbitration

The conclusion of this agreement, its validity, construction, performance and settlement of the disputes shall be governed by the Laws of Singapore.

All disputes arising from the execution of or in connection with the contract shall be settled through friendly negotiation between both parties. In case no settlement can be reached, the disputes shall be submitted to the Singapore International Arbitration Centre for arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce in effect at the time of applying for arbitration by three (3) Arbitrators appointed in accordance with the said Rules. The venue of arbitration shall be Singapore. The arbitration award shall be final and binding upon both parties. The arbitration fees shall be born by the losing party except otherwise by the arbitration commission.^[71] 

34. Importantly, Value Advisory had written to the SIAC and ICC for clarification regarding the arbitration agreement.^[72]  The SIAC replied that it would not be able to administer the arbitration under the ICC Rules; the ICC replied stating that no other arbitration institution was permitted to administer arbitration under the ICC Rules.^[73]  In light of these responses, the arbitral tribunal had concluded that it had jurisdiction to adjudicate the disputes under the ICC Rules.^[74] 
35. In dismissing ZTE’s argument that the role performed by the ICC Court and its Secretariat ought to have been performed by the SIAC,^[75] Vibhu Bakhru J gave two reasons:
    1. first, the parties expressly agreed that arbitration shall be conducted under the ICC Rules.^[76]  Those rules indicate the ICC Court plays a ‘pivotal role in administration of the arbitration conducted under the ICC Rules’^[77] for which there ‘was little scope for SIAC to be substituted in place of the ICC Court’;^[78] and
    2. second, and more importantly, according to Vibhu Bakhru J, was the fact that the SIAC had declined to administer the arbitration conducted under the ICC Rules, and the ICC had confirmed that only it was authorised to administer arbitration pursuant to its rules.^[79]  In this respect, it was distinguishable from Insigma where the SIAC had said that it was prepared to administer an arbitration under the ICC Rules, with appropriate modifications and structural adaptations to replicate an ICC arbitration.^[80]  In those circumstances, and having regard to the primacy given to making arbitration clauses workable, it was open and appropriate for the arbitral tribunal to sever the part of the arbitration agreement requiring disputes to be submitted to the SIAC.^[81]  Although it was open to the Court to reconsider the validity of the arbitral tribunal’s decision in this regard, ZTE had provided no material to displace the finding by the arbitral tribunal in respect of its jurisdiction, or to show the proceedings were not otherwise in accordance with the arbitration agreement.^[82]

Submissions

36. There are four issues in dispute:
    1. first, whether the two arbitrations are domestic arbitrations to which the Commercial Arbitration Act 2011 (Vic) (CAA) applies or international arbitrations to which the International Arbitration Act 1974 (Cth) (IAA) applies;
    2. second, the proper construction of the arbitration agreement in cl 42.5(a) (construction question);
    3. third, whether either arbitration ought be stayed or the Resolution Institute be enjoined from taking any step in furtherance of the RI arbitration (stay question); and
    4. fourth, whether various documents in the proceeding are confidential.

Downer’s submissions

37. Downer makes three essential contentions:^[83]

First, the arbitration agreement requires that disputes be referred to arbitration to be conducted under the ICC Arbitration Rules, with the result that for an arbitration to be properly commenced a Request for Arbitration must be filed with the ICC.

Secondly, it follows that the Resolution Institute Arbitration was not properly commenced because it did not (and cannot) involve that critical step.

Thirdly, the Resolution Institute’s function under cl 42.5 is confined to the appointment of arbitrators in the absence of agreement and certain related preliminary steps.

Which Act applies?

38. When the arbitration agreement was made, the parties’ places of business were Australia and Germany.   Senvion, a German company, signed the agreement in Germany and ‘almost entirely’ performed its obligations internationally.^[84]  Senvion’s manufacture of the WTGs was done overseas and the WTGs were imported into Australia.^[85]  The parties agreed to ICC arbitration and required each arbitrator to be a foreign national.^[86]  It is submitted by Downer that the arbitration ‘is unarguably an international arbitration’ for the purposes of the Model Law and the IAA applies.^[87]
39. The Model Law covers the field to the exclusion of the law of a State.  Article 1(3) relevantly provides that an arbitration is international if the places of business of the parties are in different States or a substantial part of the obligations of the commercial relationship is to be performed outside the common place of business State.^[88]  It is submitted by Downer that whether there was an Australian subsidiary of Senvion Group is irrelevant, as Senvion Australia Pty Ltd was not a party to the EPC Contract.^[89]  It is said that the greater part of the contract price being in EUR and USD to be paid to Senvion is also consistent with there being an international place of business and performance.^[90]  Downer highlights that Senvion’s design facilities were in Germany and India, and manufacture was carried out in Germany, Portugal and Poland.  Further, it is said, there is no evidence that design, engineering, manufacture or procurement of the WTGs was thought to be done domestically.  Downer’s position is that these factors considered together mean either that the relevant place of business was outside Australia or, if not, a substantial part of the obligations were.^[91]

Construction question

40. The ICC Rules stipulate non-optional steps and powers not otherwise found in other arbitral institutions’ rules, or in ad hoc arbitrations conducted under the Model Law or UNCITRAL Rules.^[92]  Downer submitted that the effect of this is that ICC arbitrations have recognised and distinguishingly unique characteristics.^[93]  
41. Clause 42.5(a) appears to involve two inconsistent and irreconcilable concepts: an arbitration conducted by the Resolution Institute and an arbitration in accordance with the ICC Rules.^[94]  Downer’s position is that, given the ICC Rules require the involvement of the ICC in exclusive terms in certain respects, cl 42.5 cannot objectively require that the ICC‑specific tasks be carried out by the Resolution Institute.^[95]  Downer highlights that the Resolution Institute has confirmed it will not attempt to carry out these tasks and limited itself, instead, to the nomination and appointment of the arbitral tribunal.^[96]
42. Downer highlights that Insigma is distinguishable from the present case because the ICC Rules have been amended with the effect that only the ICC can administer an arbitration under the ICC Rules.^[97]  Moreover, it is said, and unlike Insigma, the Resolution Institute (being the relevant arbitral body) has stated in advance that it will not administer the arbitration under the ICC Rules.^[98]
43. Downer submitted that Value Advisory is instructive in the present applications for three reasons:
    1. first, although the arbitration agreement provided that disputes would be ‘submitted to the SIAC’, the Court concluded the approach in Insigma was inappropriate because the parties had agreed arbitration would be conducted by the ICC under the ICC Rules, and importantly the SIAC had declined to administer the arbitration under the ICC Rules with the ICC itself clarifying that only it was authorised to administer arbitration under its rules;^[99]
    2. second, there was a clear agreement to binding arbitration in Singapore under the ICC Rules with three arbitrators appointed pursuant to them.  This was sufficient to constitute a valid arbitration agreement, and the reference to disputes being submitted to the SIAC did not render the entire clause void;^[100] and
    3. third, the reference to SIAC could be severed from the arbitration agreement.  In doing so, the Court acknowledged the need for pragmatic approaches when interpreting arbitration agreements; going so far as to state that it is the ‘duty of the Court’ to make a seemingly unworkable arbitration clause workable within the limits of the law and without stretching such a clause beyond the boundaries of recognition.^[101]
44. Downer submitted that HKL Group is consistent with, and supports, its position in this case insofar as hybrid arbitration clauses may be enforced, provided the stated institution is willing and able to apply a different institution’s rules.^[102]  This is not the position in this case with respect to the Resolution Institute.  It is also submitted by Downer that Badprim is distinguishable on the basis that it can be inferred that it was concerned with the pre‑2012 amendments to theICC Rules.^[103]
45. It is said by Downer that the parties’ intention to resolve their dispute by ICC arbitration is explicit.^[104]  To the extent there is any ambiguity, it is said that the extrinsic evidence suggests the parties chose arbitration under the ICC Rules and that their inclusion was a material, deliberate change in the course of the drafting exercise, between commercially sophisticated international parties, and that the references to the Resolution Institute in the arbitration agreement were vestigial.^[105]
46. Downer submitted the reference to the Resolution Institute in cl 42.5(a) should either be read down to mean a reference to the appointment process only or be severed using the blue pencil test.^[106]  It is said by Downer that Squadron’s contention that the RI arbitration should continue without the involvement of the ICC creates ‘real and unsatisfactory uncertainty about what procedural rules are to be applied by the arbitral tribunal’,^[107] and neither Squadron, nor the Resolution Institute, have explained how the ICC Rules could properly be applied to the RI arbitration, save that the rules be applied with appropriate modifications, ‘whatever that means’.^[108]  Downer’s position is that any attempts by the Resolution Institute to effect the ICC Rules would be, to put it colloquially, ‘gutting the ICC Rules’.^[109]
47. It is said by Downer that the Resolution Institute’s position that the arbitration procedure will be determined by the arbitral tribunal makes the arbitration ad hoc and should not be accepted for the following reasons:^[110]
    1. first, it is ‘more than unlikely’ that it would have been the parties’ intention given the ‘contract characteristics’ and drafting history;^[111]
    2. second, sophisticated commercial parties are inherently unlikely to have specified the ICC Rules if they actually intended to leave determination of the applicable procedural rules to the arbitral tribunal;^[112]
    3. third, an ad hoc arbitration cannot fully apply the ICC Rules in practice, with the result that the procedure agreed by the parties is ignored in substantive respects.   Joinder being a critical issue in this case, it could not be effected without application to the ICC Secretariat;^[113]
    4. fourth, and as a result, Downer would be deprived of the ability of apportionment to Senvion under Pt IVAA of the Wrongs Act 1958(Vic) (Wrongs Act), notwithstanding the fact that the governing law of the EPC Contract is the law of Victoria and apportionment is properly a matter of substantive law;^[114]
    5. fifth, a businesslike interpretation of cl 42.5 is consistent with the inclusion of all contractual parties in the agreed dispute resolution process.^[115]  It is not in keeping with commercial common sense to allocate risk on a joint liability basis but provide for dispute resolution on a several basis:

Apart from the practical and policy factors reflected in the substantive law of apportionment, a several approach to dispute resolution results in a proliferation of proceedings and the real possibility of conflicting findings because, for example (as here), a claim against one Contractor alone in respect of the other Contractor’s part of the Works is likely to be differently defended in a proceeding to which all are parties.^[116]

6. finally, it is objectively unlikely that rational businesspeople would agree to constrain an arbitration by choosing less than the full operation of the ICC Rules, and the arbitration agreement should be interpreted consistently with commercial common sense.^[117]

48. It is said by Downer that Squadron appropriately recognises that questions regarding the Wrongs Act are to be left to the arbitral tribunal.  However, even if the parties were able to contract out of the apportionment regime, this does not entirely answer the question of whether Senvion is a necessary party to the arbitration:

The arbitration agreement is to resolve Disputes. Disputes are defined as ‘between the parties’. ‘Parties’ is defined as ‘Principal and the Contractor Entities’, with Senvion and Downer each being defined as a ‘Contractor Entity’. Further, ‘Contractor’ is defined as ‘the Contractor Entities’. Clauses 42.4 and 42.5 refer repeatedly to ‘the parties’ and ‘the Contractor’. A valid arbitration requires all parties to the arbitration agreement to be parties to arbitration, whichever construction of cl 42.5 is preferred and regardless of whether relief is sought against a party. That is the scheme of the arbitration agreement.^[118]

49. Downer submitted that a commercially sensible construction of the arbitration agreement ‘is inconsistent with an elective approach to disputes’ which would risk inconsistent findings and would require multiplicity of proceedings to determine rights between jointly liable contractors.^[119]
50. It is further said by Downer that Squadron does not address the limitations of the Resolution Institute.  Downer highlights that these limitations are material to the construction question.^[120]  It is said that, even if the approach in Insigma remains available, the Resolution Institute has ‘practically disavowed fulfilling the ICC’s role under the ICC Rules so that cannot work’.^[121]

The stay question

51. Downer submitted that the RI arbitration should be stayed for three reasons:
    1. first, Squadron invalidly referred the matter to arbitration by sending its originating process to the Resolution Institute.  The ICC Rules require the filing of a Request for Arbitration with the ICC;^[122]
    2. second, the RI arbitration does not include all the parties to the arbitration agreement.  This is not faithful to a commercial or businesslike construction of the agreement,^[123] which requires, by cl 42.5, all the parties to the arbitration agreement to participate for there to be a valid arbitration;^[124] and
    3. third, Downer will suffer significant prejudice in the event a stay is not granted:^[125]
       4. Downer will be exposed to substantial costs in engaging in parallel arbitrations arising from the same underlying dispute, including duplication of work and costs;^[126]
       5. there is a risk of inconsistent findings, which is ‘problematic to constrain given the potential knowledge and document gaps’;^[127] and
       6. Downer will be deprived of the statutory protections under Pt IVAA of the Wrongs Act.^[128]
52. Downer highlights that if its primary construction of cl 42.5 is accepted, then Squadron has not validly commenced its arbitration.^[129]  It is further noted by Downer that the arbitration agreement distinguishes between referral to arbitration (cl 42.4(f)) and commencement of arbitration (cl 42.5).^[130]  It is said, in any event, under the ICC Rules, arbitration commences upon the Request for Arbitration being received by the ICC Secretariat and not the notice being sent to the other party.  Downer’s position is that, if the Resolution Institute is supposed to substitute the ICC’s unique bodies, then, on Squadron’s case, it commenced arbitration second in time.^[131]  
53. Section 8 of the Cross-Border Insolvency Act inserts pt 5.3A of the Corporations Act into the Insolvency Model Law, with the result that rights to commence proceedings and the operation of a stay under Art 20 are subject to s 440D of the Corporations Act.^[132]  Downer highlights that Squadron has not made a claim against Senvion, has disavowed any financial interest in the administration of Senvion, is not even a contingent creditor of Senvion, and therefore lacks standing under s 440D of the Corporations Act and ss 90‑15 and 90‑20 of the Insolvency Practice Schedule (Corporations) (at sch 2 of the Corporations Act) to seek declarations or orders relating to a stay of the ICC arbitration as against Senvion.^[133]  It is highlighted, additionally, that Squadron effectively seeks to remove Senvion and its administrator as parties to the ICC arbitration, seemingly under the guise that the arbitration is stayed against them.^[134]  It is submitted by Downer that a stay of a proceeding against a party does not have the effect of removing that party from the proceeding; the proceeding remains extant, as it is not discontinued or dismissed, but cannot proceed or resume absent a Court order.^[135]
54. Downer submitted that arbitration proceedings do not attract the operation of s 440D of the Corporations Act as they are not proceedings ‘in a court’ and nor is an arbitrator ‘a court’ for the purposes of that provision.^[136]  Moreover, it is submitted by Downer that because Squadron does not seek relief against Senvion (as a defendant in administration), any stay under s 440D does not operate.^[137]  It is noted by Downer that it does not seek relief against Senvion.^[138]  It is further noted that joinder for the purposes of proportionate liability does not amount to making a claim against Senvion.^[139]
55. It is submitted by Downer that even if a s 440D stay did apply, the arbitrations would be proceedings for which leave to proceed should be granted for the following reasons:^[140]

a)         the relevant considerations in favour of a stay are the distraction of the administrators from their tasks in the limited time between the entry into administration and first meeting of creditors, and the possible interference with the pari passu distribution of assets among creditors. Such issues arise in neither arbitration;

b)         there is no evidence of urgency in the administration of Senvion, which has been proceeding for over 6 years, in contrast to the usual situation in Australia;

c)         Downer’s arbitration is capable of being dealt with without undue disruption or prejudice to the conduct of an overall administration of Senvion, and no evidence or submissions from Senvion or its administrators claim to the contrary;

d)         Senvion is represented by well-resourced international commercial lawyers of repute; and

e)         where it is at least arguable that an insolvent company is insured for claims against it, as Senvion seems to be, that is a proper basis for the grant of leave to proceed.

It is said that the above reasons also negate granting any application, if one were to be made, under s 447A of the Corporations Act.^[141]  

Confidentiality

56. Downer’s position is that the documents generated after the filing of the request for arbitration and any related information is confidential, either under s 23C of the IAA or its cognate provision in s 27E of the CAA.^[142]  Downer highlights that under both the IAA and CAA, ‘confidential information’ is defined as information that relates to the arbitral proceedings or an award made in the proceedings;^[143] being a broad definition.^[144]  Downer’s position is that the definition captures not only formal submissions and evidence but also correspondence between the parties relating to the arbitral proceedings and information regarding the nature and scope of the proceedings (e.g. the Dispute Notices).^[145]  
57. Downer observes that it would be contradictory if Parliament intended to honour the parties’ intention to keep their disputes out of the public domain but permit the detail of those disputes to be available through court proceedings emanating from the parties’ arbitration.^[146]
58. Downer submitted that if confidential information is to be disclosed, it must fall within one of the exceptions listed in s 23D of the IAA.  Downer’s position is that there is no need for the details of the underlying dispute to be disclosed, contrary to Squadron’s submission that disclosure is necessary.  Downer notes the question before the Court is not regarding the underlying dispute in respect of the WTGs but, rather, the construction of cl 42.5.  It is said that any disclosure should be limited to correspondence stating the parties’ position on that issue.^[147]

Squadron’s submissions

Which Act applies?

59. Squadron’s position is that any arbitration under the arbitration agreement is a domestic arbitration to which the CAA applies.^[148]  This is said to be so because the parties to the EPC Contract’s places of business which had the closest connection to the arbitration agreement, at the time it was entered into, were in Australia.^[149]  It is noted that Squadron and Downer are Australian registered companies with places of business in Australia, and that Senvion also had places of business in Australia.^[150]  Specifically, as at 21 December 2017 (the date the arbitration agreement was concluded):^[151]
    1. Senvion had a registered office in Australia, being 80 Collins Street, Melbourne VIC 3000 (the Collins Street address);
    2. Senvion had established subsidiaries — Senvion Australia Pty Ltd and Senvion Holdings Pty Ltd — in Australia;
    3. Downer exchanged correspondence during the tender phase with Senvion Australia Pty Ltd representatives, whose email signatures included the Collins Street address;
    4. Senvion had been, or was, involved in at least six projects in Australia; and
    5. although the EPC Contract was signed by representatives of Senvion based in Germany, it was executed ‘on behalf of Senvion GmbH (ABN 82 800 200 559)’.
60. Squadron highlights the fact that Senvion has been registered as a foreign company under the Corporations Act supports Squadron’s position because, under s 601CD, a foreign company is not permitted to carry on business in Australia unless it is registered.  It is said by Squadron that this supports the inference that Senvion, having been registered as a foreign company, carries on (or intended to carry on) business in Australia since becoming registered on 8 August 2012.^[152]
61. Squadron’s position is that, to the extent that Downer relies on matters that post‑date entry into the arbitration agreement, those matters should not be admitted because s 1(3)(a) of the CAA concerns the situation ‘at the time of the conclusion’ of the arbitration agreement.^[153]  
62. Squadron submitted that any arbitration commenced pursuant to the arbitration agreement is not an international arbitration as defined in Art 1(3) of the Model Law for the following reasons:^[154]
    1. in respect of Art 1(3)(a), the parties’ place of business that had the closest relationship to the arbitration agreement at 21 December 2017 were in Australia.  The closest relationship cannot mean where the arbitration agreement was signed;^[155]
    2. in respect of Art 1(3)(b)(i):
       7. the place of arbitration determined in the arbitration agreement is Melbourne; and
       8. the parties agreed that the arbitration agreement would be binding on the parties ‘except to the extent that the arbitrator has made an error of law or a breach of natural justice’ and, importantly, that any appeal to be instituted in respect of such matters would be ‘in the courts of Victoria’;
    3. in respect of Art 1(3)(b)(ii), at the time of contracting, the place where the parties anticipated the obligations the subject of their commercial relationship were to be performed, or with which the subject matter of any dispute under the EPC Contract is most closely connected, was Victoria (being the location of the project); and
    4. in respect of Art 1(3)(c), the parties did not expressly agree that the subject matter of the arbitration agreement relates to more than one country, as demonstrated by cl 45.5(b) of the EPC Contract by which the parties irrevocably submit to the exclusive jurisdiction of the Victorian courts.

Construction question

63. Squadron says the fundamental question in these proceedings is ‘what arbitral institution did the parties choose to conduct or administer their disputes, and pursuant to what arbitral rules?’^[156]  
64. It is submitted by Squadron that Downer’s claims regarding the Wrongs Act can be appropriately dealt with by the arbitral tribunal, once appointed.^[157]  In any event, it says, those claims are misguided.^[158]  Squadron’s position is that the Court should make a determination as to whether Downer can seek to apportion liability against Senvion because Downer cannot, in actuality, reduce its liability to Squadron via apportionment against Senvion.^[159]  It is noted that Downer and Senvion are partners for the purposes of s 24AP(c) of the Wrongs Act.^[160]  It is said by Squadron that, as a result, the Court should disregard all propositions advanced by Downer based on assertions of benefit to it if Senvion was joined to any arbitral proceedings.^[161]
65. Squadron submitted that Downer seeks to rewrite the text of cl 42.5(a) by contending that the clause requires the Resolution Institute to play a role in tribunal appointment under cls 42.5(d)–(g) of the arbitration agreement and that the arbitration be conducted under ICC Rules with the ICC itself administering it.^[162]  Squadron’s position is that cl 42 provides ‘a tiered regime of negotiation, limited expert determination or mediation and then arbitration’,^[163] which ‘is not difficult’ because:^[164]

(a)        an arbitration is commenced by the step of one party serving upon the other an Arbitration Notice [that being the text of cl. 42.4(f)], and not the ICC Secretariat receiving a Request for Arbitration;^[165]

(b)        the Resolution Institute, having received notice of the dispute, is to assist the parties to appoint an arbitrator, firstly by providing lists of potential arbitrators (if the parties cannot agree) [cl.42.5(d)] and ultimately selecting and appointing should there be no agreement [cl.42(g)];

(c)        the ICC as an institution (be it the institution, the ICC Court, or the Secretariat) is not mentioned in the Arbitration Agreement; and

(d)        an arbitrator / arbitral tribunal appointed (with the assistance of, or directly by, the Resolution Institute in accordance with cl 42.5) is to then conduct the arbitration utilising the procedural steps found in clause 42.5 (written evidence in chief, oral evidence etc) and otherwise ‘in accordance with the ICC Rules of Arbitration – the procedural rules – current at the time of the reference to the arbitration’, but plainly with any modifications necessary to remove functions that could only be carried out by the ICC, the ICC Court (or any person connected with the ICC Court, such as the President, Secretariat or Secretary General). In substance, administration is left to the arbitrator(s) appointed by or with the assistance of the Resolution Institute.

66. Squadron submitted that the validity of a hybrid arbitration clause, such as 42.5(a), is not contingent on the willingness and capacity and capability of the designated institution to administer an arbitration in accordance with the agreed rules.^[166]  It is said cl 42.5(a) makes clear that the parties agreed that any administrative steps are to fall to the arbitral tribunal appointed by or with the Resolution Institute’s assistance, regardless of what the ICC might seek to achieve by inclusion of Arts 1(2) and 6(2) in the ICC Rules.^[167]  In those circumstances, Squadron submits, the distinction between ‘conduct’ and ‘administer’ is irrelevant;^[168] as is any reliance by Downer on the drafting history of cl 42.5(a), which should not be admitted in evidence as it is not extrinsic evidence of the circumstances surrounding the drafting of the arbitration agreement.^[169]  It is said by Squadron that it is speculation.^[170]  
67. Squadron said what cl 42.5(a) does is clear on its face: it selects a hybrid mechanism by which the parties have chosen an arbitration administered and conducted by the Resolution Institute with such rules of the ICC as are applicable,^[171] and insofar as the ICC Rules can sit compatibly with the Resolution Institute.^[172]  Squadron submitted there is nothing prohibiting the parties from selecting the substance of the ICC Rules and choosing not to adopt Art 1(2), by which the ICC has tried to retain sole conduct of arbitrations involving the ICC Rules.^[173]
68. Squadron’s position is that the approach in Insigma in terms of construing an arbitration agreement by reference to what an institutional tribunal subsequently says it will or may do regarding ‘conducting’ an arbitration is not admissible by virtue of Codelfa Constructions Pty Ltd v State Railway Authority (NSW).^[174]Further, it is said that it is no answer to distinguish Insigma on the grounds it concerns the ICC Rules pre‑insertion of Art 1(2), as the approach has continued to be applied after implementation of the 2012 ICC Rules.^[175]  In any event, it is submitted by Squadron that Downer’s construction of what the Resolution Institute has said it can and cannot do is not quite right; it is said the Resolution Institute has made clear that it has the capability and resources to take on administered arbitrations if required, though it has noted it does not replicate the structural functions of the ICC.^[176] 
69. Squadron submitted that Value Advisory, like Insigma, turned on its own facts, and, as a result, is not ‘on-point for the present contest’.^[177]
70. Ultimately, it is said by Squadron, the arbitration agreement can be upheld and an appropriate commercial construction given to cl 42.5 by reading the words actually used and leaving the arbitral tribunal to adjust the ICC Rules through appropriate modifications to the procedure provided therein.^[178]

The stay question

71. Squadron’s position is that the chronology demonstrates that the ICC arbitration was commenced after the RI arbitration:^[179]

(a)        The RI Arbitration originates from a Dispute Notice issued by Squadron on 13 May 2025, pursuant to cl. 42.2 of the EPC Contract.

(b) The ICC Arbitration originates from a Dispute Notice which Downer purported to issue 17 days later, on 30 May 2025. That Dispute Notice was not valid because each of the Disputes identified therein was an existing Dispute covered by Squadron’s Dispute Notice dated 13 May 2025.

(c)        On 28 August 2025, Squadron commenced the RI Arbitration by issuing an Arbitration Notice to the Contractor’s Representative pursuant to cl. 42.4(f).

(d) The following day, Downer purported to commence the ICC Arbitration by issuing an Arbitration Notice to Squadron and Senvion and filing a Request for Arbitration with the ICC Secretariat.

72. Squadron submitted that it is ‘perverse’ for Downer, the party commencing arbitration second, to contend that the RI arbitration gives rise to duplication, multiplicity or abuse of process.  It is said that any such duplication, multiplicity or abuse of process lies in Downer’s camp by virtue of it instituting the ICC arbitration.^[180]  Squadron maintains that it issued the RI arbitration in accordance with cl 42.4(f), and instituting it was not an abuse of process.^[181]
73. Additionally, it is said by Squadron that the commencement of the ICC arbitration was inconsistent with the automatic stay against proceedings concerning Senvion, as provided by Art 20(1)(a) of the Insolvency Model Law, and given force of law by virtue of s 6 of the Cross‑Border Insolvency Act, due to Senvion’s foreign insolvency and Downer’s decision to join Senvion to the ICC arbitration.^[182]  
74. It is said by Squadron that the stay of individual actions or individual proceedings provided by Art 20(1)(a) of the Insolvency Model Law extends to arbitral proceedings, as the provision is understood as a matter of international law.^[183]  It is further said that Art 20(2) of the Insolvency Model Law provides for statutory modification by a contracting party of the automatic stay created by Art 20(1).^[184]  In those circumstances, a question arises as to whether s 16 of the Cross‑Border Insolvency Act evinces an intention by Parliament to depart from the accepted international meaning to be given to Art 20(1) which extends to the commencement of arbitral proceedings, by virtue of pt 5.3A of the Corporations Act which uses the terminology of the ‘court’ but does not refer to arbitral proceedings.^[185]  It is said by Squadron that although pt 5.3A has been held not to require an automatic stay of domestic arbitral proceedings,^[186] no decision has considered the interaction between pt 5.3A and the Cross‑Border Insolvency Act in the context of arbitration and the need to give effect to the Insolvency Model Law.^[187]  Squadron notes that the second reading speech regarding pt 5.3A is silent on the question of cross‑border insolvencies.^[188]  Squadron’s position is, in the absence of a clear statutory intention, the ordinary international meaning should be given to the operation of the Cross‑Border Insolvency Act and, therefore, from the recognition of Senvion’s administration in Germany as a foreign main proceeding in 2019, the commencement of arbitral proceedings against Senvion has been stayed.^[189]  
75. Squadron’s alternative position is that the Court should exercise its discretion and order the purported arbitral proceedings ‘commenced against Senvion’ be stayed pursuant to Art 21(1) of the Insolvency Model Law, as given statutory force by s 6 of the Cross‑Border Insolvency Act.  In the further alternative, Squadron submits, by operation of s 471B of the Corporations Act and s 90‑15 of the Rules.^[190]

Confidentiality

76. Squadron highlights ‘confidential information’ in relation to arbitral proceedings may be disclosed by a party, under s 27F(7) of the CAA or its cognate provision in s 23D(7) of the IAA, in circumstances where disclosure is necessary for the purposes of the CAA or the IAA and disclosure is no more than reasonable for that purpose.^[191]  It is said by Squadron that the orders sought by Downer should not be made for three reasons:^[192]
    1. the exception in s 27F(7) of the CAA is satisfied, in that the parties have disclosed the information in issue for the purposes of applications under the CAA or IAA, and that disclosure is reasonable as it is only what is necessary;
    2. there are no exceptional circumstances justifying suppression of the information in issue — the proceedings before the Court have a legitimate purpose;^[193] and
    3. in any event, not all the information in issue is ‘confidential information’ within the meaning of s 2 of the CAA or s 15 of the IAA.
77. Additionally, it is said by Squadron that the starting point for the parties’ respective applications must take into account s 28 of the Open Courts Act 2013 (Vic), which ‘rightly presumes that open justice is the default’.^[194]

Analysis

78. Although I have ultimately decided the question of which Act applies is better left to the arbitral tribunal once appointed, it is worth briefly responding to one of Squadron’s submissions in respect of Senvion and its place of business.
79. A, perhaps, complicating factor in determining which Act applies, which Squadron submits supports its position that the CAA applies, is that Senvion has been registered as a foreign company in Australia since 8 August 2012 and that the EPC Contract was signed on behalf of ‘Senvion GmbH (ABN 82 800 200 559)’.  The inference to be drawn from Senvion’s registration as a foreign company, Squadron submits, is that Senvion ‘carries on’ (or more accurately ‘carried on’), or at least intended to carry on, business in Australia, citing s 601CD of the Corporations Act which prohibits a foreign company from carrying on business in Australia unless, relevantly, registered under div 2, pt 5B.2 of the Corporations Act.  It follows, according to Squadron, that Senvion had its place of business in Australia.
80. What is left unacknowledged by Squadron is the fact that compliance with these provisions is essentially a procedural step, or gateway, to carrying on business in Australia.   As already stated, s 601CD of the Corporations Act is a prohibition on foreign companies carrying on business without the necessary registration.  It does not follow that a foreign company which becomes registered is, necessarily, carrying on business in Australia, nor does it follow that such a company has its place of business in Australia for the purposes of s 1(3)(a) of the CAA.  Noting that the expression ‘carrying on business’ and its cognates may have different meanings in different contexts, and accordingly that care must be taken to understand the context in which the requirement is being considered,^[195] whether a company carries on business is ultimately a question of fact to be determined in all the circumstances of the particular case.^[196]
81. For completeness, and as was outlined above, Squadron submitted registration as a foreign company and the inclusion of Senvion’s ABN when executing the EPC Contract were further factors which, when considered with a number of other factors, demonstrated that the place of business which has the closest relationship to the arbitration agreement, so far as Senvion is concerned, is Australia.  As a general observation, some of the factors identified by Squadron, such as having a registered office in Australia, are requirements of registration for a foreign company,^[197] and would not per se be indicia that Senvion was carrying on business in Australia, let alone that it had its place of business here.  In those circumstances, it may be that the IAA applies by virtue of Art 1(3)(a) and ss 16 and 21, however, it is, as already stated, ultimately a question to be determined in all the circumstances by the relevant arbitral tribunal once appointed.

Construction question

82. The arbitration agreement at issue in these proceedings is located within the broader cl 42 dispute resolution clause, and amongst a suite of detailed and sophisticated dispute resolution procedures.  Relevantly, referral to arbitration may only occur if the contingency of a failed mediation arises, as can be seen by reference to the following provision:^[198]

42.4     Mediation

…

(f)        If a Dispute referred to mediation under this clause 42.4 has not been resolved within 60 Business Days of referral in accordance with clause 42.2(d), either party may refer the Dispute to arbitration in accordance with clause 42.5 by a written notice to the other party (Arbitration Notice).

83. The arbitration agreement is in the following terms:^[199]

42.5     Arbitration

(a) Arbitration pursuant to this clause 42.5 will be conducted by the Resolution Institute in accordance with the ICC Rules of Arbitration current at the time of the reference to arbitration and as otherwise set out in this clause.

(b)        The seat of the arbitration will be Melbourne, Australia and the proper law of the arbitration will be the State of Victoria.

(c)        The parties agree that:

(i) they have entered into the arbitration agreement under this clause 42 for the purposes of achieving a just, quick and cheap resolution of any Dispute;

(ii)        any arbitration conducted pursuant to this clause will not mimic court proceedings of the seat of the arbitration and the practices of those courts will not regulate the conduct of the proceedings before the arbitrator;

(iii)       in conducting the arbitration, the arbitrator must take into account the matters set out in clauses 42.5(c)(i) and 42.5(c)(ii);

(iv)      where the amount in dispute is less than $25,000,000 one arbitrator will be appointed by agreement between the parties; and

(v)        where the amount in dispute is $25,000,000 or more three arbitrators will be appointed by agreement between the parties.

(d)        If the parties fail to agree the on the arbitrator(s) in accordance with 42.5(c)(iv) or 42.5(c)(v) (as relevant) within 10 Business Days after the relevant Arbitration Notice was delivered, either party may notify the Resolution Institute that they have been unable to agree the arbitrator(s) and the Resolution Institute must promptly provide the parties with:

(i)         where the amount in dispute is less than $25,000,000 and one arbitrator is to be appointed, a list of not less than 6 potential arbitrators; and

(ii)        where the amount in dispute is $25,000,000 or more and three arbitrators are to be appointed, a list of not less than 10 potential arbitrators.

(e)        All evidence in chief will be in writing unless otherwise ordered by the arbitrator.

(f)         Within 7 Business Days following receipt of the list of arbitrators from the Resolution Institute in accordance with clause 42.5(e), the parties must notify each other and the Resolution Institute of any potential arbitrator, who:

(i)         was an ex-employee of a party or of an entity related to a party; or 

(ii)        has a conflict of interest in relation to the arbitration, and each party must provide the other and the Resolution Institute with a list of those remaining arbitrators in order of preference.

(g)        Within 5 Business Days of receipt of the party’s lists by the Resolution Institute in accordance with clause 42.5(f), the Resolution Institute will appoint the arbitrator(s), giving each party’s preferences equal consideration.

(h)        The arbitrator must:

(i) be legally qualified and have appropriate skills and qualifications to determine the Dispute;

(ii)        be impartial;

(iii)       unless the parties agree otherwise, not be a national or resident of Australia;

(iv)       not be an employee or ex-employee of a party or of an entity related to a party; and

(v)        not be connected with the performance of this agreement.

(i)         All evidence in chief will be in writing unless otherwise ordered by the arbitrator.

(j)         Discovery will be governed by the substantive and procedural rules and practices adopted by the Federal Court of Australia at the time of arbitration.

(k)        The oral hearing will be conducted in English and as follows:

(i) the oral hearing will take place in Melbourne, Australia and all outstanding issues must be addressed at the oral hearing;

(ii)        the date and duration of the oral hearing will be fixed by the arbitrator at the first preliminary conference. The arbitrator must have regard to the principles set out in this clause 42.5 when determining the duration of the oral hearing;

(iii)       oral evidence in chief at the hearing will be permitted only with the permission of the arbitrator for good cause;

(iv)       the oral hearing will be conducted on a stop clock basis with the effect that the time available to the parties will be split equally between the parties so that each party will have the same time to conduct its case unless, in the opinion of the arbitrator, such a split would breach the rules of natural justice or is otherwise unfair to one of the parties;

(v)        not less than 20 Business Days prior to the date fixed for the oral hearing, each party will give written notice of those witnesses (both factual and expert) of the other party that it wishes to attend the hearing for cross examination; and

(vi)       in exceptional circumstances, the arbitrator may amend the date of hearing and extend the time for the oral hearing in clause 42.5(k)(ii).

(l)         Unless otherwise ordered, each party may only rely upon one expert witness in respect of any recognised area of specialisation.

84. As a general observation, and noting it does nothing more than act as a descriptor, I am satisfied that cl 42.5(a) is a hybrid arbitration clause in the sense that the agreement contained therein states that the arbitration rules of one arbitral institution (the ICC) are to be utilised by another arbitral institution (the Resolution Institute) in the conduct of an arbitration.^[200]  The question is, relevantly, whether it can be upheld according to its terms.  For the reasons advanced by Squadron, the answer to that question is ‘yes’.  The terms of cl 42.5(a) make abundantly clear the parties’ intention to arbitrate: 

Arbitration pursuant to this clause 42.5 will be conducted by the Resolution Institute in accordance with the ICC Rules of Arbitration current at the time of the reference to arbitration and as otherwise set out in this clause.

Moreover, it is, in my view, quite clear from its terms and context in the EPC Contract that the arbitration agreement between the parties, and its terms and extent, lies substantially within the provisions of cl 42.5.  Consequently, I reject Downer’s submissions insofar as they are contrary to this position. 

85. A plain and intelligible reading of those words is available, and there is no ambiguity in respect of them.  A reasonable person in the position of Squadron or Downer would have understood cl 42.5(a) to be the selection of a hybrid mechanism by which arbitration is to be conducted by the Resolution Institute, with such of the ICC Rules as do not involve administration by the ICC.  It is simply inconceivable that sophisticated commercial parties, advised by well‑resourced lawyers, would have been unaware of the fact that the ICC Rules and the ICC’s associated unique functions would be incapable of exact adoption and replication by the Resolution Institute.  Additionally, there was little by way of context to the insertion of the ‘ICC Rules’ into cl 42.5(a), or indeed in the drafting of cl 42.5 generally.^[201]  What evidence was presented does not shed any light on the issue of construction.  It is speculative at best and does not rise to the level that Downer submits it does; that is, that the inclusion of the ICC Rules was a deliberate change in the course of the contractual drafting process. 
86. The broader mechanics of the arbitration agreement are important.  Arbitration is commenced by one party referring a ‘dispute’ to arbitration in accordance with cl 42.5 by giving written notice to the other.^[202] Upon receiving notice of the dispute, the Resolution Institute is to then assist the parties to appoint an arbitrator, by first, providing lists of potential candidates if the parties cannot agree,^[203] and second, ultimately selecting and appointing an arbitrator or arbitrators in the event there is no agreement.^[204]  The Resolution Institute is to then conduct the arbitration in accordance with the ICC Rules,^[205] evidently culling those rules that require ICC administration, and utilising the procedural steps as otherwise found in cl 42.5.^[206]
87. In any event, if the Resolution Institute proposes to have no role other than the nomination and appointment of arbitrators, and refused to conduct the arbitration, there is no reason why the appointed arbitral tribunal cannot apply what ICC Rules remain possible.  As is discussed below, despite the addition of Arts 1(2) and 6(2) to the ICC Rules, I am not satisfied that an arbitral institute such as the ICC can so restrict party autonomy as to prevent the parties from agreeing to conduct hybrid arbitration if they are so inclined, despite the inherent limitations to such a method and the self‑evident procedural issues, amongst many other things, that may arise from their choosing to do so.
88. Clause 42.5(a) is not, and by way of comparison noting that each arbitration clause falls to be interpreted on its own terms, a clause such as that in issue in HKL Group.  That clause relevantly provided:

Any dispute shall be settled by amicable negotiation between two Parties. In case both Parties fail to reach amicable agreement, all dispute out of in connection with the contract shall be settled by the Arbitration Committee at Singapore under the rules of The International Chamber of Commerce of which awards shall be final and binding both parties. Arbitration fee and other related charge shall be borne by the losing Party unless otherwise agreed.^[207]

89. Although Tan AR upheld the clause, it seems at least arguable that the clause could have been interpreted as merely setting out the three elements of the parties’ dispute resolution procedure: first, failing successful negotiation, disputes would be resolved by arbitration; second, that the arbitration be seated in Singapore; and third, that the ICC Rules would apply.^[208]  Alternatively, reference to the ‘Arbitration Committee’ could have been a more general reference to the ICC’s Court of Arbitration.^[209]  
90. The clause in issue in these proceedings is not open to the same criticism.  The arbitration agreement makes clear that:
    1. arbitration pursuant to cl 42.5 will be conducted by the Resolution Institute;
    2. arbitration will be in accordance with the ICC Rules current at the time of the reference to arbitration;
    3. the seat of arbitration is Melbourne; and
    4. the proper law of the arbitration is Victorian.
91. The terms of cl 42.5(a) are clear and indicate that, for whatever reason, the parties have elected to conduct a hybrid arbitration, selecting the Resolution Institute to conduct the arbitration in accordance with the ICC Rules, as they were at liberty to do.  
92. In regard to the construction of cl 42.5(a) itself, Downer’s submissions essentially boiled down to the proposition that it is objectively unlikely that rational businesspeople would agree to constrain an arbitration by choosing anything less than full operation of the ICC Rules.   Although never expressly stated, it seemed the necessary implication from this was that the ICC is the appropriate institution to conduct the arbitration.  It is simply impossible to read the terms of cl 42.5(a) in such a fashion.  The ICC as an arbitral institution is not mentioned; the Resolution Institute is squarely nominated.  As touched on above, cl 42.5 also makes clear the Resolution Institute is to have a role in the appointment of arbitrators in the event the parties cannot agree.  Specifically:
    1. pursuant to cl 42.5(d), in the event that the parties fail to agree within 10 business days after the relevant Arbitration Notice is delivered, either party may notify the Resolution Institute of their failure to agree and the Resolution Institute must promptly provide the parties with a list of potential arbitrators; and
    2. pursuant to cl 42.5(g), the Resolution Institute will appoint the arbitrators within five business days of receipt of the parties’ preferences.
93. In this respect, the role played by the Resolution Institute in the nomination and appointment process is, on Downer’s construction, entirely unexplained.  Why would the Resolution Institute be delegated this particular task when the ICC Rules, by virtue of Arts 12 and 13, already provide a procedure for the appointment of arbitrators in the absence of the parties’ agreement?  Delegation to the Resolution Institute in circumstances where the parties cannot agree is, to paraphrase Downer, to constrain the arbitration by choosing less than the full operation of the ICC Rules.  
94. There was also some flirtation with a semantic point that cl 42.5(a) utilises the phrase ‘conducted’ rather than ‘administered’.^[210]  Use of the phrase ‘conducted’ is, in my view, entirely consistent with the finding above regarding what sophisticated commercial parties would understand cl 42.5(a) to mean.  That is, by use of the word ‘conducted’, the parties can be taken to recognise the limitations of a non‑ICC arbitral tribunal conducting an arbitration in accordance with the ICC Rules.  The Resolution Institute in this regard could not ‘administer’ an arbitration in accordance with the ICC Rules, but it could ‘conduct’ one utilising such of the ICC Rules as are compatible with its structure and capabilities, and do not require administration by the ICC. 
95. The submission made by Downer regarding Senvion being a necessary party to the arbitration also warrants some analysis.   Contrary to Downer’s submission, the scheme of the arbitration agreement does not unequivocally require all the parties to the arbitration agreement to be parties for an arbitration to be valid.   The starting point is to repeat the observation that cl 42 creates a detailed and sophisticated dispute resolution regime.  Clause 42.1(a) bears repeating:

If a Dispute arises between the Contractor, the Principal, the Contractor’s Representative, the Principal’s Representative or the Superintendent, then the Dispute will be dealt with in accordance with this clause 42.^[211]

96. ‘Dispute’ is defined as:

Dispute means any dispute, difference or disagreement arising between the parties relating to the interpretation of this Agreement or any matter arising out of, or in connection with, this Agreement or the Works.^[212]    

97. In a section of the EPC Contract titled ‘Details’, which is a prelude to the recitals and, indeed, cl 1, dealing with definitions and interpretations, the ‘Parties’ are defined as ‘Principal and the Contractor Entities’.^[213]  The ‘Principal’ is listed as Squadron; with Senvion and Downer each listed as a ‘Contractor Entity’.^[214]  Further, ‘Contractor’ is defined in cl 1.1 as ‘the Contractor Entities’.^[215]  Importantly, cl 1.2(a) states:

In this Agreement, unless expressly stated otherwise:

(a)        words importing the singular include the plural and vice versa.

98. There is a slight tension between the definition of ‘Dispute’ and cl 42.1(a) in that ‘Dispute’, as defined in cl 1.1, is given a definition as ‘between the parties’ who are in turn defined as, ultimately, Squadron, and Senvion and Downer.  Clause 42.1(a), however, alters the expansive definition of ‘Dispute’ in that it specifies a contingency (‘If a Dispute arises’) as between the Contractor (Senvion or Downer), the Principal (Squadron), the Contractor’s Representative (relevantly, a person appointed by Senvion, and a person appointed by Downer, pursuant to cl 34.1(a)), the Principal’s Representative (relevantly, a person appointed by Squadron pursuant to cl 33.1(a)) or the Superintendent (defined as the person specified by the Principal in a notice provided to the Contractor under clause 2.1(f)).  Transplanting the definition of ‘Dispute’ into cl 42.1(a) produces the following clause:    

If any dispute, difference or disagreement arising between the parties relating to the interpretation of this Agreement or any matter arising out of, or in connection with, this Agreement or the Works arises between the Contractor, the Principal, the Contractor’s Representative, the Principal’s Representative or the Superintendent, then the Dispute will be dealt with in accordance with this clause 42.

99. The scope of cl 42.1(a), in my view, leaves open the distinct possibility that a ‘Dispute’ may arise as between all or any of the parties when read with cl 1.2(a).  There is not, on my view, a express statement in cl 42.1(a) or the definition of ‘Dispute’ that requires a dispute or disagreement to arise as between all parties to the EPC Contract.  Indeed, cl 1.2(a), when deployed in the context of cls 42.4 and 42.5, has the result that nothing in cl 42 requires all of Squadron, Senvion, and Downer to be parties to an arbitration conducted in accordance with cl 42.5 to be valid.  Critically, the definition of ‘Dispute’ as pressed for by Downer, as requiring all parties to a dispute or disagreement (regardless of whether the dispute or disagreement is only as between two of them) to be parties to an arbitration for it to be valid, is inherently uncommercial.  
100. Downer’s submissions regarding the ICC Rules stipulating non‑optional steps and powers not otherwise found in other arbitral institutions’ rules, and the ICC’s involvement in exclusive terms in certain respects, can be accepted.  As too can the proposition that ICC arbitrations are viewed as having recognised and unique characteristics.  However, to acknowledge this does not make good Downer’s broader submission that cl 42.5(a) should be read down to mean the Resolution Institute’s only role is in respect of the appointment process, or otherwise severed.  It simply does not engage with the fact that the parties, advised by lawyers, agreed to cl 42.5(a) in the terms that they did.  Furthermore, whilst it can be accepted that the Resolution Institute, or the arbitral tribunal it appoints, will have to apply a stripped back version of the ICC Rules as a result of the role the ICC has in administering arbitrations pursuant to its rules, to use this as a justification for reading down cl 42.5(a) or severing the reference to the Resolution Institute would be for the Court to usurp the parties’ autonomy and rewrite their agreement. 
101. As to Downer’s attempts to distinguish the cases on hybrid arbitration clauses on the basis that, in the present proceedings, the Resolution Institute has stated in advance that it will not administer the arbitration under the ICC Rules, this argument does not, in my view, accurately state what the Resolution Institute conveyed to the parties.  Specifically, the Resolution Institute’s letter dated 26 August 2025 is in response to Ashurst’s 15 August 2025 request for confirmation of the Resolution Institute’s position in relation to an arbitration clause nominating it to conduct the arbitration pursuant to the ICC Rules.  The Resolution Institute notes Insigma, references the insertion of Arts 1(2) and 6(2) in the ICC Rules, states that it is ‘not aware’ of a decision which considers the impact of these changes on a hybrid clause, and acknowledges it does have the capability and resources to take on administered arbitrations ‘if required’ but also that it ‘does not replicate the same structural functions as the ICC’.^[216]  The Resolution Institute concludes, sensibly, by suggesting the parties consider amending their arbitration agreement to provide for arbitration under the Resolution Institute Rules.^[217]  
102. Review of the various correspondence cited in support of the proposition that the Resolution Institute has confirmed it will limit itself only to the nomination and appointment of the arbitral tribunal reveals that the Resolution Institute’s position has evolved since its initial response on 26 August 2025:
     1. Ashurst’s 12 September 2025 letter requests confirmation whether the Resolution Institute is willing and able to perform the functions set out in the arbitration agreement ‘insofar as they relate to the nomination and appointment of arbitrators’.^[218]  The Resolution Institute’s response dated 15 September 2025 confirms that it is both willing and able to perform the functions described in the arbitration agreement.^[219]
     2. Ashurst’s 17 September 2025 letter states that Ashurst understands the Resolution Institute’s position is limited to nominating and appointing functions and does not extend to ‘administering the arbitration in the sense provided for by the ICC Rules’ and requests its understanding accurately reflects that position.^[220]  Ashurst made a further request for clarification by way of its 23 September 2025 letter as to whether the Resolution Institute has any role beyond the nomination and appointment of arbitrators.^[221]  The Resolution Institute’s eventual response on 26 September 2025 states that it considers it has ‘no further role in the arbitration process other than providing the shortlist of at least 10 arbitrators … considering feedback on that shortlist, and to make an appointment if and when that is needed’, whilst also stating that it considers ‘it is appropriate for the arbitral tribunal, once appointed to determine jurisdiction and the validity of the arbitration thereafter’.^[222]  
     3. In its 9 October 2025 letter, the Resolution Institute states that its role ‘is limited to that of nominating body’ and that its function ‘is administrative only and does not involve determining the validity or enforceability of the contract or notice of dispute, or the jurisdiction of any arbitral tribunal’, whilst maintaining that such matters are properly to be determined by the arbitrator or a court.^[223]
103. Whilst the Resolution Institute may fairly be said to have indicated it will limit itself to a nominating body, on my review, it has not directly said it will not conduct the arbitration.  In any event, and as Squadron submitted, the willingness of the Resolution Institute to administer the arbitration in accordance with the ICC Rules is not determinative.  Whilst the limitations of which rules the Resolution Institute will be able to adapt are clear, it is not apparent why it cannot conduct an arbitration in accordance with the ICC Rules appropriately modified, to the extent those rules can be.   The parties may find that many of the ICC Rules cannot apply to their arbitration, there being either no functional equivalent to ICC bodies in the Resolution Institute or an inability of the Resolution Institute to adapt such rules as are required.  But difficulties of adaptation and modification aside, as Prakash J remarked in Jay‑Tech Marine, ‘there is no rule of law that prevents the parties doing exactly what they did’.^[224]  Downer’s submission that an ad hoc arbitration cannot fully apply the ICC Rules in practice, with the result that the procedure agreed by the parties is ignored in substantive respects, somewhat misses the point.  In agreeing to the Resolution Institute conducting an arbitration in accordance with the ICC Rules, this is, objectively, what the parties contemplated. 
104. Similarly, I do not consider that the cases can be distinguished on the basis of the insertion of Arts 1(2) and 6(2) into the ICC Rules.  As Tan AR highlighted in HKL Group (No 2), the power of an arbitral body’s rules to bind the parties emanates from the consent of the parties themselves.^[225]  Articles 1(2) and 6(2) cannot and do not usurp the contractual freedom of the parties to be bound by the result of an arbitration conducted by a non‑ICC institution adopting and applying such of the ICC Rules as it can, as they have here.^[226]  To the extent it might be thought the parties have, by agreeing to use the ICC Rules, contractually agreed to be bound by Arts 1(2) and 6(2), the very nature of the ICC Rules and the exclusive roles retained to the ICC begets the fact that a non‑ICC institution will not be able to apply all of the ICC Rules.  I do not consider that the ICC Rules have the capacity to override party autonomy, so intrinsic to the arbitral process,^[227] in this regard.  
105. Value Advisory also does not assist Downer.  To the contrary, Downer’s suggestion that the reference to the Resolution Institute in cl 42.5(a) should be read down to mean a reference to the appointment process only would be to stretch an already workable arbitration clause beyond the boundaries of recognition.^[228]  Similarly, the suggestion that the reference to the Resolution Institute should be severed serves no utility.  The clause is workable without severance.  
106. As Squadron rightly contends, Downer’s claims regarding the Wrongs Act are appropriately dealt with by the arbitral tribunal once appointed.  Given that those claims do not need to be answered by this Court to resolve Squadron and Downer’s applications, it would be inappropriate to express any view on them as this would impinge on the Kompetenz‑Kompetenz of the arbitral tribunal.^[229]
107. Finally, I did not understand Squadron to contend that cl 42.5 objectively requires the Resolution Institute to carry out various of the ICC specific tasks under the ICC Rules.  To the extent that might have been contended, the Resolution Institute has made it clear that it does not offer the same structural functions as the ICC. 

Confidentiality

108. I am satisfied that confidentiality orders should be made along the lines of those proposed by Downer.  The phrase ‘confidential information’ is given a broad definition in both the CAA and IAA as, and not relevantly differently, ‘information that relates to the arbitral proceedings or to an award made in those proceedings’^[230] and ‘information that relates to the proceedings or to an award made in the proceedings’,^[231] respectively.  As Downer submitted, there is little guidance on what this means other than to say that the definition is a wide one.  I am satisfied that the various paragraphs of the affidavits for which Downer seeks confidentiality orders relate to the underlying dispute the subject of the arbitration, and that they, therefore, contain information that relates to the ‘arbitral proceeding’ or to the ‘proceeding’ (without deciding which of the CAA and IAA applies).
109. Both the CAA and IAA emphasise the private nature of arbitration, and the limitations on disclosure imposed on the parties.^[232]  Squadron’s submissions that disclosure was necessary for the purposes of the CAA and IAA can be accepted insofar as they relate to disclosures to the Court.  But the matter before the Court does not relate to the underlying dispute the subject of arbitration between the parties.  Rather, it is a question regarding the construction of cl 42.5 which, necessarily, requires various disclosures of information relating to the underlying dispute to provide relevant context and background, and form the basis of submissions by the parties.  In those circumstances, I agree with Downer’s submission that it would be contradictory if Parliament intended to honour the parties’ intention to keep their disputes out of the public eye but permit, effectively, a loophole by virtue of disclosing confidential information through related court proceedings.  The Court should not be made a vehicle for the backdoor disclosure of confidential information.  To permit the disclosure of confidential information relating to the underlying dispute subject to arbitration would open up the potential for an abuse of process.  In light of previous discussion, it appears that the IAA may apply, however, in any event, it is unnecessary to decide because, pursuant to the inherent power of the Court, I propose to make orders along the lines sought by Downer.   

The remaining issues

110. Although considerable time was spent on the remaining issues, particularly on the stay question, I consider that it is better dealt with by the arbitral tribunal once appointed.  Kompetenz-Kompetenz requires nothing less.  It would, as stated earlier, be inappropriate for the Court to express any views on matters which are appropriately within the remit of the arbitral tribunal.

Conclusion and orders

111. Pursuant to s 36 of the Supreme Court Act 1986(Vic), and having regard to the preceding reasons, I propose to make declarations along the lines sought by Squadron that:
     1. cls 42.4 and 42.5 of the EPC Contract, on their proper construction, provide that:
        9. an arbitration is commenced by one party serving upon the other an Arbitration Notice under cl 42.4(f);
        10. if the parties are unable to agree on the arbitrator(s) to determine the dispute within 10 Business Days of service of an Arbitration Notice, either party may approach the Resolution Institute pursuant to cl 42.5(d) to assist with the appointment of the arbitrator(s);
        11. the Resolution Institute may assist the parties in appointing the arbitrator(s) pursuant to cls 42.5(f) and (g);
        12. under cl 42.5(a), the arbitrator(s) appointed by the parties’ agreement, or otherwise by the Resolution Institute, then conduct the arbitration in accordance with the ICC Rules to the extent possible, and insofar as those rules do not set out functions that can only be carried out by the ICC Court of Arbitration (or any person connected with the ICC Court of Arbitration, such as the President, Secretariat or Secretary General); and
        13. the ICC, the ICC Court of Arbitration or any person connected with the ICC Court of Arbitration (such as the President, Secretariat or Secretary General) has no role to play under these provisions in the conduct of this arbitration.
     2. Squadron has validly commenced an arbitration against the defendant, by serving upon the defendant an Arbitration Notice dated 28 August 2025.
     3. In filing a Request for Arbitration with the ICC Secretariat on 29 August 2025, the defendant did not commence an arbitration for the purposes of these provisions.
     4. The arbitration purportedly commenced by the defendant by the filing on 29 August 2025 of the Request for Arbitration with the ICC Secretariat was contrary to the agreement of the parties under cl 42 of the EPC Contract.
112. As already stated, I propose also to make confidentiality orders along the lines proposed by Downer.  The parties are to bring in orders to give effect to these reasons and identify paragraphs of the judgment that ought be redacted in order to uphold the confidentiality orders.  
113. Both Squadron and Downer have had some success on their respective applications.  If costs cannot be agreed, the parties may file written submissions along with the draft orders, and the issue of costs will be dealt with on the papers.
114. Finally, it bears stating, the parties are, of course, free to resolve the matter in a practical way, one which avoids the ‘procedural gymnastics’^[233] of the Resolution Institute conducting a hybrid arbitration by applying the ICC Rules.

^[1]              Court Book (CB) A0006–0016.

^[2]              CB A0001–0005, A0017–0018.

^[3]              Affidavit of Jeremy Ian Chenoweth dated 10 October 2025, [10], CB B0002.

^[4]              Affidavit of Jeremy Ian Chenoweth dated 10 October 2025, [11], CB B0002.

^[5]              Affidavit of Jeremy Ian Chenoweth dated 10 October 2025, [12]–[13], CB B0003.  For completeness, the EPC Contract defined Murra Warra Asset Co Pty Ltd as the Principal, however, that company is currently owned by Squadron.  For convenience, Squadron will be referred to as the Principal.

^[6]              See generally Downer’s submissions dated 2 December 2025, [11]–[12].

^[7]              See generally Downer’s submissions dated 2 December 2025, [13].

^[8]              See generally Downer’s submissions dated 2 December 2025, [14].

^[9] Re Senvion GmbH (No 2) [2019] FCA 1732, Order 4 (Anastassiou J).

^[10]             [Redacted].

^[11] Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514, 534 [44] (Kiefel CJ, Gageler, Nettle and Gordon JJ); Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45, 87 [162] (Allsop J); Oil Basins Limited v Esso Australia Resources Pty Ltd [2025] VSC 34, [62] (Croft J) (Oil Basins); noting the decision was upheld apart from in relation to indemnity costs in Oil Basins v Esso Australia Resources [2026] VSCA 6 (McLeish, Lyons and Kenny JJA). 

^[12]             Inghams Enterprises Pty Ltd v Hannigan (2020) 379 ALR 196, 211–13 [59]–[66] (Bell P); Rinehart, 548 [83] (Edelman J).

^[13]             (2020) 149 ACSR 387. 

^[14] ASSK Investments, 391 [29] (citations omitted); relevantly upheld on appeal, see AMA Group Ltd v ASSK Investments [2021] NSWCA 45,[35] (Bell P, with Leeming J agreeing at [74] and Emmett AJA agreeing at [82]).

^[15] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 179 [40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).

^[16]             Bernard Hanotiau, ‘The Arbitration Agreement’ in David Joseph and David Foxton (eds), Singapore International Arbitration: Law & Practice (LexisNexis, 2^nd ed, 2018), 59 [12.1].

^[17]             [2022] Bus LR 55.

^[18]             Flashbird, 63 [31] (Lord Hamblen JSC, on behalf of the Board); see generally Carlos Molina Esteban, ‘Hybrid (institutional) arbitration clauses: party autonomy gone wild’ (2020) 36(4) Arbitration International 475, 476, 486–8.

^[19]             Carlos Molina Esteban, ‘Hybrid (institutional) arbitration clauses: party autonomy gone wild’ (2020) 36(4) Arbitration International 475, 489.

^[20]             Carlos Molina Esteban, ‘Hybrid (institutional) arbitration clauses: party autonomy gone wild’ (2020) 36(4) Arbitration International 475, 489.

^[21]             [2005] SGHC 91. 

^[22] Jay-Tech Marine, [4].

^[23] Jay-Tech Marine, [5].

^[24] Jay-Tech Marine, [7].

^[25] Jay-Tech Marine, [17].

^[26] Jay-Tech Marine, [18]–[19].

^[27] Jay-Tech Marine, [19], [21].

^[28]             [2009] 3 SLR(R) 936.

^[29] Insigma, 940 [4]. 

^[30]             Insigma, 945–6 [23], 948 [29].

^[31] Insigma, 950 [34].

^[32] Insigma, 948 [31].

^[33] Insigma, 941 [9].

^[34] Insigma, 944 [18]–[19].

^[35] Insigma, 950–1 [35], 953 [40].

^[36] Insigma, 952–3 [37]–[40].

^[37]             Insigma, 955–6 [43].

^[38]             [2013] SGHCR 5. 

^[39] HKL Group, [1].

^[40] HKL Group, [2].

^[41] HKL Group, [9].

^[42] HKL Group, [11]. 

^[43] HKL Group, [13]–[14].

^[44] HKL Group, [13]–[16].

^[45]             HKL Group, [17]–[27].

^[46] HKL Group, [27].

^[47] HKL Group, [28].

^[48] HKL Group, [29].

^[49] HKL Group, [38] (emphasis in original) (emphasis added).

^[50]             [2013] SGHCR 8. 

^[51] HKL Group (No 2), [2].

^[52]             HKL Group (No 2), [2], [5]–[6].

^[53] HKL Group (No 2), [6]–[8].

^[54]             HKL Group (No 2), [10]–[11].

^[55] HKL Group (No 2), [4]–[5].

^[56]             Svea Court of Appeal, T 2454–14, 23 January 2015 (Judges of Appeal CS and AK, and Judge of Appeal PS (dissenting, in part)). For completeness, the copy of this decision provided in the parties’ Agreed List of Authorities notes that it is an unofficial translation.

^[57] Badprim, 1–4 (Judges of Appeal CS and AK).

^[58] Badprim, 1 (Judges of Appeal CS and AK).

^[59] Badprim, 2 (Judges of Appeal CS and AK).

^[60] Badprim, 2–3 (Judges of Appeal CS and AK).

^[61] Badprim, 13 (Judges of Appeal CS and AK).

^[62] Badprim, 13–14 (Judges of Appeal CS and AK).

^[63] Badprim, 14 (Judges of Appeal CS and AK). 

^[64] Badprim, 16 (Judge of Appeal PS).

^[65] Badprim, 16 (Judge of Appeal PS).

^[66] Badprim, 16–18 (Judge of Appeal PS).

^[67]             3 July 2017, Delhi High Court, 2017 DHC 3217.

^[68] Value Advisory, [1].

^[69] Value Advisory, [2].

^[70] Value Advisory, [7].

^[71] Value Advisory, [38].

^[72] Value Advisory, [8].

^[73] Value Advisory, [8], [43].

^[74] Value Advisory, [20].

^[75] Value Advisory, [41].

^[76] Value Advisory, [44], [46].

^[77] Value Advisory, [45].

^[78] Value Advisory, [46].

^[79] Value Advisory, [47].

^[80] Value Advisory, [49]. 

^[81] Value Advisory, [52]–[54].

^[82] Value Advisory, [55]–[56].

^[83]             Downer’s submissions dated 2 December 2025, [7]–[9].

^[84]             Downer’s submissions dated 2 December 2025, [18].

^[85]             Downer’s submissions dated 2 December 2025, [18].

^[86]             Downer’s submissions dated 2 December 2025, [18].

^[87]             Downer’s submissions dated 2 December 2025, [19].

^[88]             Downer’s submissions in reply dated 4 December 2025, [1].

^[89]             Downer’s submissions in reply dated 4 December 2025, [2].

^[90]             Downer’s submissions in reply dated 4 December 2025, [2].

^[91]             Downer’s submissions in reply dated 4 December 2025, [3]. 

^[92]             Downer’s submissions dated 2 December 2025, [34].

^[93]             Downer’s submissions dated 2 December 2025, [34]–[35].

^[94]             Downer’s submissions dated 2 December 2025, [37].

^[95]             Downer’s submissions dated 2 December 2025, [38]. 

^[96]             Downer’s submissions dated 2 December 2025, [38]–[40], [57].

^[97]             Downer’s submissions dated 2 December 2025, [36], [43]; T52.28–53.20.

^[98]             Downer’s submissions dated 2 December 2025, [43]; T51.11–52.25.

^[99]             Downer’s submissions dated 2 December 2025, [45].

^[100]           Downer’s submissions dated 2 December 2025, [46].

^[101]           Downer’s submissions dated 2 December 2025, [47].

^[102]           T63.17–24.

^[103]           T64.10–25.

^[104]           Downer’s submissions dated 2 December 2025, [50].

^[105]           Downer’s submissions dated 2 December 2025, [51], [53]; T31.31–35.2.

^[106]           Downer’s submissions dated 2 December 2025, [55]. 

^[107]           Downer’s submissions dated 2 December 2025, [59].

^[108]           Downer’s submissions dated 2 December 2025, [59]. 

^[109]           T66.3–5.

^[110]           Downer’s submissions dated 2 December 2025, [60].

^[111]           Downer’s submissions dated 2 December 2025, [61].

^[112]           Downer’s submissions dated 2 December 2025, [62]. 

^[113]           Downer’s submissions dated 2 December 2025, [63]; T55.12–27.

^[114]           Downer’s submissions dated 2 December 2025, [64]; citing Tesseract International Pty Ltd v Pascale Construction Pty Ltd (2024) 418 ALR 539.

^[115]           Downer’s submissions dated 2 December 2025, [65].

^[116]           Downer’s submissions dated 2 December 2025, [66].

^[117]           Downer’s submissions dated 2 December 2025, [67].

^[118]           Downer’s submissions in reply dated 4 December 2025, [8] (citations omitted; emphasis in original). 

^[119]           Downer’s submissions in reply dated 4 December 2025, [9].

^[120]           Downer’s submissions in reply dated 4 December 2025, [10].

^[121]           Downer’s submissions in reply dated 4 December 2025, [11]. 

^[122]           Downer’s submissions dated 2 December 2025, [69].

^[123]           Downer’s submissions dated 2 December 2025, [70].

^[124]           T44.6–30; T67.10–16.

^[125]           Downer’s submissions dated 2 December 2025, [71].

^[126]           Downer’s submissions dated 2 December 2025, [72].

^[127]           Downer’s submissions dated 2 December 2025, [73].

^[128]           Downer’s submissions dated 2 December 2025, [74].

^[129]           Downer’s submissions in reply dated 4 December 2025, [6].

^[130]           T43.25–46.5.

^[131]           Downer’s submissions in reply dated 4 December 2025, [7].

^[132]           Downer’s submissions in reply dated 4 December 2025, [12].

^[133]           Downer’s submissions in reply dated 4 December 2025, [12]–[13].

^[134]           Downer’s submissions in reply dated 4 December 2025, [21].

^[135]           Downer’s submissions in reply dated 4 December 2025, [21] ; citing ROFA Sport Management AG v DHL International (UK) Ltd [1989] 1 WLR 902, 911 (Neill, Ralph Gibson and May LJJ agreeing). 

^[136]           Downer’s submissions in reply dated 4 December 2025, [15]; citing Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd (2011) 285 ALR 207, [12] (Hammerschlag J) (Larkden) and Re THO [2016] NSWSC 509, [13]–[18].  For completeness, the reference to Larkden at [12] is erroneous.  The point is actually made by Hammerschlag J at [42].  Further, I observe that neither pinpoint, in either authority, specifically states that an arbitrator is not ‘a court’ for the purposes of s 440D of the Corporations Act.

^[137]           Downer’s submissions in reply dated 4 December 2025, [15]. 

^[138]           Downer’s submissions in reply dated 4 December 2025, [16]. 

^[139]           Downer’s submissions in reply dated 4 December 2025, [17]; citing Woods v De Gabriele [2007] VSC 177, [66]–[69] (Hollingworth J) and Timbercorp Finance Pty Ltd (in Liq) v Ehrenreich [2016] VSC 208, [28]–‍[29] (Judd J); cf Edwards v Kyriackou [2009] VSC 492.

^[140]           Downer’s submissions in reply dated 4 December 2025, [18].

^[141]           Downer’s submissions in reply dated 4 December 2025, [19].

^[142]           Downer’s submissions dated 2 December 2025, [80].

^[143]           Downer’s submissions dated 2 December 2025, [81].

^[144] Mango Boulevard Pty Ltd v Whitton [2018] FCA 399, [16] (Rangiah J).

^[145]           Downer’s submissions dated 2 December 2025, [83].

^[146]           Downer’s submissions dated 2 December 2025, [84]. 

^[147]           Downer’s submissions in reply dated 4 December 2025, [4]. 

^[148]           See generally T91.1–96.31.

^[149]           Squadron’s submissions dated 2 December 2025, [7].

^[150]           Squadron’s submissions dated 2 December 2025, [11].

^[151]           Squadron’s submissions dated 2 December 2025, [14]. 

^[152]           Squadron’s submissions dated 2 December 2025, [15].

^[153]           Squadron’s submissions dated 2 December 2025, [16]. 

^[154]           Squadron’s submissions dated 2 December 2025, [19].

^[155]           T93.1–3.

^[156]           Squadron’s submissions dated 2 December 2025, [47].

^[157]           Squadron’s submissions dated 2 December 2025, [52].

^[158]           Squadron’s submissions dated 2 December 2025, [48], [52]–[54].

^[159]           Squadron’s supplementary submissions dated 10 December 2025, [2].

^[160]           Squadron’s supplementary submissions dated 10 December 2025, [3]–[10]. 

^[161]           Squadron’s supplementary submissions dated 10 December 2025, [2], [14]–[16].

^[162]           Squadron’s written submissions dated 2 December 2025, [61]–[62].

^[163]           Squadron’s written submissions dated 2 December 2025, [66].

^[164]           Squadron’s written submissions dated 2 December 2025, [67].

^[165]           Section 21 of the CAA states that ‘[u]nless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent’. Squadron submits that the parties have agreed, pursuant to cl 42.4(f), that an arbitration is to be commenced by issuing an Arbitration Notice.

^[166]           Squadron’s submissions dated 2 December 2025, [68], [70], [72].

^[167]           Squadron’s written submissions dated 2 December 2025, [69]. 

^[168]           Squadron’s written submissions dated 2 December 2025, [68]–[69].

^[169]           Squadron’s written submissions dated 2 December 2025, [73]–[74].

^[170]           Squadron’s written submissions dated 2 December 2025, [74].

^[171]           T80.28–81.31.

^[172]           T83.14–19.

^[173]           T83.31–84.9.

^[174]           (1982) 149 CLR 337. 

^[175]           Squadron’s submissions in reply dated 4 December 2025, [2] ‘Reference [43]’; citing HKL Group Co Ltd v Rizq International Holdings Pte Ltd [2013] SGHCR 5, [28] (Tan AR). 

^[176]           T87.3–9; T90.3–20.

^[177]           Squadron’s submissions in reply dated 4 December 2025, [10].

^[178]           Squadron’s submissions in reply dated 4 December 2025, [6], [9].

^[179]           Squadron’s submissions dated 2 December 2025, [42] (footnotes omitted). 

^[180]           Squadron’s submissions dated 2 December 2025, [43], [49]. 

^[181]           T97.1–22.

^[182]           Squadron’s submissions dated 2 December 2025, [77]–[79].

^[183]           Squadron’s submissions dated 2 December 2025, [80], [82]–[84]; citing the Guide to Enactment and Interpretation of the UNCITRAL Model Law on Cross‑Border Insolvency, [180], which relevantly states that ‘Subparagraph 1 (a), by not distinguishing between various kinds of individual action, also covers actions before an arbitral tribunal’; Nordic Trustee ASA & Anor v OGX Petroleo e Gas SA (Em Recuperacao Judicial) & Anor [2016] EWHC 25; and Cosco Bulk Carrier Company Limited v Armada Shipping SA [2011] 2 All ER (Comm) 481. 

^[184]           Squadron’s submissions dated 2 December 2025, [85]–[86].

^[185]           Squadron’s submissions dated 2 December 2025, [87].

^[186]           Citing Naidenov, in the matter of Quoterite Pty Ltd (administrators appointed) [2023] FCA 1169; In the matter of THO Services Ltd [2016] NSWSC 509. 

^[187]           Squadron’s submissions dated 2 December 2025, [88].

^[188]           Squadron’s submissions dated 2 December 2025, [89].

^[189]           Squadron’s submissions dated 2 December 2025, [89]–[90].

^[190]           Squadron’s submissions dated 2 December 2025, [92]–[93].

^[191]           Squadron’s submissions dated 2 December 2025, [21].

^[192]           Squadron’s submissions dated 2 December 2025, [22]. 

^[193]           Citing EBJ21 v EBO21 (2021) 290 FCR 325, [71]–[73] (Stewart J); Rinehart v Welker (2011) 93 NSWLR 311, [45] (Bathurst CJ and McColl JA).

^[194]           T24.11–12.

^[195] Tiger Yacht Management Ltd v Morris & Ors (2019) 268 FCR 548, 559 [50] (The Court) (Tiger Yacht); see generally Re TCL Airconditioner (Zhongshan) Co Ltd (No 2) (2019) (2019) 369 ALR 192, 194–9 [12]–[24] (McKerracher J). 

^[196] Tiger Yacht, 559 [50]; citing Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (2018) 259 FCR 514, 538 [99].

^[197]           See, for example, Corporations Act s 601CT.

^[198]           CB C1688.

^[199]           CB C1689–90.

^[200]           Bernard Hanotiau, ‘The Arbitration Agreement’ in David Joseph and David Foxton (eds), Singapore International Arbitration: Law & Practice (LexisNexis, 2^nd ed, 2018), 59 [12.1].

^[201]           Affidavit of James Lucek-Rowley dated 7 November 2025, [19]–[21], CB B0061.

^[202]           EPC Contract, cl 42.4(f). 

^[203]           EPC Contract, cl 42.5(d).

^[204]           EPC Contract, cl 42.5(g).

^[205]           EPC Contract, cl 42.5(a). 

^[206]           EPC Contract, cl 42.5(a). 

^[207] HKL Group, [1]. 

^[208]           This point is made in Christopher Bloch & Anthony Cheah Nicholls, ‘ICC Hybrid Arbitrations Here to Stay: Singapore Courts’ Treatment of the ICC Rules Revisions in Articles 1(2) and 6(2)’ (2014) 31(3) Journal of International Arbitration 393, 400.

^[209]           Christopher Bloch and Anthony Cheah Nicholls, ‘ICC Hybrid Arbitrations Here to Stay: Singapore Courts’ Treatment of the ICC Rules Revisions in Articles 1(2) and 6(2)’ (2014) 31(3) Journal of International Arbitration 393, 400.

^[210]           T34.24–35.16.

^[211]           CB C1686.

^[212]           CB C1512 (emphasis added). 

^[213]           CB C1501.

^[214]           CB C1501.

^[215]           CB C1508.

^[216]           CB C2227.

^[217]           CB C2228.

^[218]           CB C2277.

^[219]           CB C2298.

^[220]           CB C2320–1.

^[221]           CB C2364.

^[222]           CB C2391.

^[223]           CB C2423.

^[224] Jay-Tech Marine, [17].

^[225] HKL Group (No 2), [10].

^[226] HKL Group (No 2), [10].

^[227] Oil Basins, [56].

^[228] Value Advisory, [38].

^[229]           See generally Oil Basins, [29], [54], [56]–[68].

^[230] CAA s 2(1) ‘confidential information’.

^[231] IAA s 15(1) ‘confidential information’. 

^[232] CAA s 27F; IAA s 23D; see generally John Hockley, Clyde Croft, William KQ Ho and Kieran Hickie, Australian Commercial Arbitration (LexisNexis, 2^nd ed, 2021) 188 [s 27F.5].

^[233]           HKL Group.

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