i-law

International Construction Law Review

COHABITATION: DO ARBITRAL RULES AND ARBITRAL STATUTES GO TOGETHER? “IMPLIED” OPTING-OUT OF THE MODEL LAW IN SINGAPORE AND AUSTRALIA AND WHAT IT MIGHT MEAN.

JONATHAN KAY HOYLE

Senior Associate, International Arbitration Group, Clayton Utz, Sydney 1

INTRODUCTION

In late 1995, Toyo Engineering Corporation (“TEC”) entered into a contract with Mobil to engineer and construct an upgrade of the facilities at the Mobil oil refinery in Altona, in the Australian state of Victoria. Consequent upon this, TEC, in April 1996, entered into a sub-contract with John Holland Proprietary Limited (“JH”) for certain engineering services in respect of the upgrade.
Under the sub-contract, TEC and JH agreed to refer all disputes arising under it to arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce (“ICC Rules”).2 The parties initially chose Tokyo as the place of arbitration but ultimately changed this to Singapore.
Towards the end of 1996, a dispute arose. The dispute was referred to the ICC and in due course an arbitral tribunal was constituted to hear the dispute.3 There was a hearing in Vancouver in November 1998 followed by final submissions in January 1999. The arbitral tribunal subsequently handed down an award (“Award”) in October 2000.4

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