FEDERAL COURT OF AUSTRALIA

Trina Solar (US), Inc v Jasmin Solar Pty Ltd (No 2) [2016] FCA 399

ORDERS

THE COURT ORDERS THAT:

1.    On or before 6 May 2016, the appellant file and serve an outline of submissions in accordance with s 5 of Practice Note APP 2.

2.    On or before 17 May 2016, the respondent file and serve an outline of submissions in accordance with s 5 of Practice Note APP 2.

3.    On or before 20 May 2016, the appellant file and serve an outline of submissions in reply in accordance with s 5 of Practice Note APP 2.

4.    On or before 20 May 2016, the appellant file and serve the appropriate number of copies of the appeal book, such appeal book to be constituted by the pleadings and any affidavit that was before the primary judge, and the primary judge’s reasons.

5.    The matter be fixed for hearing on Tuesday, 24 May 2016.

6.    The parties, through their lawyers, are to confer as to the resolution of any issues that may be related to the appeal other than the proper law to govern the question of who is a party to the arbitration agreement by Friday, 29 April 2016. By that date, the parties are to inform the Court, through the associate to the Chief Justice, as to whether any party wishes to agitate any issue (other than the above issue as to proper law) before the appeal court, other than by consent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1    In this matter leave to appeal has been granted from the decision of a judge of the Court to grant leave to serve upon a United States company (the appellant) an originating motion, statement of claim and associated documents: Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd [2015] FCA 1453.

2    The matter has come before me for case management in the appeal list. Ms Lubett and Mr Heuzenroeder appeared for the appellant and respondent respectively.

3    In the matter below, Ms Lubett was led by Mr D. B. O’Sullivan QC. Mr Heuzenroeder was not led. I am informed by counsel that Mr Shane Doyle QC is now to lead Ms Lubett and Mr Norman O’Brien QC is to lead Mr Heuzenroeder. Neither Mr Doyle nor Mr O’Brien have undertaken any substantive work in the matter, but both have accepted briefs. The relevance of this paragraph will become evident shortly.

4    On the last occasion this matter was before the Court, a judge of this Court (who granted leave) indicated that there should be a degree of expedition. Neither party had sought expedition of the matter prior to that. The matter concerns an international commercial arbitration in the United States, and the claim of the respondent that it is entitled to commence proceedings in this Court, notwithstanding the fact of the existence of the international commercial arbitration and award thereunder in the United States. The Court was and is of the view that expedition is required.

5    I have discussed with the parties the question of programming the matter for a hearing in late May 2016. I said I would make programming orders today after hearing the parties. I will list the matter for 24 May 2016.

6    The matter is a confined one and a question of law only. The question at issue is what place is to be taken by Australian law as the lex fori to decide who are the parties to an arbitration agreement. The respondent (Jasmin Solar Pty Ltd) succeeded in establishing before the primary judge that the appropriate private international law analysis was that Australian law, as the lex fori, is the appropriate law to ascertain who are the parties to a contract. The contract was a United States contract identifying New York law as the governing law.

7    The appellant, Trina Solar (US), Inc put the submission before the primary judge and will put the submission before the appeal court that New York law is the relevant law to determine who are the parties to the arbitration agreement. The arbitrator has already decided that New York law will apply. The arbitrator apparently has also decided that Jasmin Solar is liable under the award.

8    Before the primary judge, the respondents to the application (which included the appellant) led evidence of New York law. The applicant below (the respondent on appeal) did not lead evidence as to New York law, but has intimated in these proceedings that it wishes to rely upon evidence before the appeal court. That evidence, it is said, will be to the effect that the conclusion that Jasmin Solar is a party to the arbitration agreement is contestable, even under New York law.

9    This morning I had the parties before me in a case management hearing. I raised the question as to the true issue of the appeal and why it was necessary for the respondent to lead evidence as to New York law (and spend money on its preparation) when the primary judge had only dealt with the matter on the basis of the importance of the lex fori.

10    Should the appeal court find that his Honour was incorrect in so concluding, the question would then arise as to whether his Honour should consider the evidence as to New York law.

11    I have required the parties to confer as to whether there is any issue about the matter being remitted to the primary judge should error be shown as to his use of the lex fori in his analysis. If the parties are agreed that the matter should be remitted to the primary judge for contest as to New York law, then the only matter before the appeal court is the private international law analysis of the primary judge as to the role of the lex fori.

12    In the circumstances, I think it appropriate to programme this matter for hearing on 24 May 2016, with a view to restricting the appeal to the primary question dealt with by the primary judge, that is, the role of the lex fori to the analysis. If that is the substance of the appeal, it should take no longer than two hours with appropriate outline of submissions.

13    If the parties wish to agitate matters beyond the correctness of the primary judge’s choice of law analysis, I will have them identify what further issues that Full Court needs to dispose of, and another case management hearing will be scheduled to determine whether those matters should go forward on the appeal.

14    Restricting the matter to this issue, the appeal book can be comprised only of relevant pleadings and associated matters that were before the primary judge and the primary judge’s reasons. The programming orders that I will make may not suit all counsel’s convenience. Be that as it may, the matter should be disposed of with some despatch. There was some suggestion that senior counsel for the appellant could not look at the matter before 9 May 2016. Unfortunately, the expedition requires that the appellant’s submissions be filed before then. I have given the appellant over two weeks to file submissions on a confined point of principle. That should be adequate.

15    In these circumstances, I propose to make the following orders:

1.    On or before 6 May 2016, the appellant file and serve an outline of submissions in accordance with s 5 of Practice Note APP 2.

2.    On or before 17 May 2016, the respondent file and serve an outline of submissions in accordance with s 5 of Practice Note APP 2.

3.    On or before 20 May 2016, the appellant file and serve an outline of submissions in reply in accordance with s 5 of Practice Note APP 2.

4.    On or before 20 May 2016, the appellant file and serve the appropriate number of copies of the appeal book, such appeal book to be constituted by the pleadings and any affidavit that was before the primary judge, and the primary judge’s reasons.

5.    The matter be fixed for hearing on Tuesday, 24 May 2016.

6.    The parties, through their lawyers, are to confer as to the resolution of any issues that may be related to the appeal other than the proper law to govern the question of who is a party to the arbitration agreement by Friday 29 April 2016. By that date, the parties are to inform the Court, through the associate to the Chief Justice, as to whether any party wishes to agitate any issue (other than the above issue as to proper law) before the appeal court, other than by consent.

Associate:

Dated:    19 April 2016