The Michael Wilson & Partners Limited case will test the
operation of a foreign arbitral award made after an Australian
The High Court of Australia has a prime opportunity to provide
much-needed clarification of general principles of international
arbitration law. The opportunity comes at a time when there is a
significant movement in Australia to promote international
The High Court has granted a foreign law firm, Michael Wilson
& Partners Limited (MWP), special leave to
appeal from a decision of the NSW Court of Appeal on questions
regarding the status of foreign arbitral awards in Australia.
The trial, which was heard in 2009, related to the alleged
diversion of profits and business opportunities by three
Australians employed by MWP to work on energy and resources
projects in Kazakhstan. The trial judge awarded more than $8
million against two of the Australians, partly on the basis that
they were accessories to breaches of fiduciary duties by the third
man who the judge found to be the "backbone" of the
conspiracy. MWP pursued the third Australian separately in an
arbitration in London, where he was later found liable, but on a
more limited basis than the two Australians in NSW.
The focal point of the High Court appeal is whether it is an
abuse of process for MWP to hold a better result in NSW against the
accessories than it obtained against the principal in the London
arbitration and will test the operation of a foreign arbitral award
made after an Australian judgment.
If the High Court follows leading English authorities such as
Sun Life v Lincoln National, the legal result would be clear: an
arbitral award is not in its nature available to third parties for
any purpose, so the two Australians found by the NSW Court to have
accessorial liability could not rely on a private and confidential
arbitral award to which they are not party to later defeat their
In addition, the High Court will consider whether there was an
apprehension that the senior NSW judge who heard a trial was biased
and whether the defendants waived their opportunity to complain
about apprehended bias.
The High Court is expected to hear the matter in June this year.
Clayton Utz partner Sid Wang acts for MWP.
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