In the recent decision of Pacific Diamond 88 Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd [2025] QCA 50, the Queensland Court of Appeal offered some illuminating perspectives on how arbitration clauses can interact with (and ultimately safeguard) the parties’ substantive rights when a contract’s payment and security mechanisms are under strain. Although the dispute at hand revolved largely around liquidated damages and set-off provisions, the Court’s reasoning provides a clear reminder of the “final safety net” that arbitration can represent for parties who wish to challenge a Superintendent’s certifications or the Principal’s contractual interpretations.

From the outset, Justice Bond observed that “in this form of contract disputes would ultimately be resolved by arbitration, although parties were permitted to have recourse to the courts in certain circumstances.” The judgment underscores that an arbitral process can be the ultimate recourse when a party seeks to contest Superintendent-issued certificates or claim extensions of time. Justice Bond explained that because the parties had deleted vital passages in the standard form contract (AS4902-2000) that would otherwise allow the Principal to set off liquidated damages progressively, the correct interpretation was that “the Principal would only be able to utilise any certified liquidated damages as part of the final certificate process.”

Where that final certificate process might yield a sum payable by the Contractor—or, conversely, reduce the amount payable to the Contractor—the aggrieved party retains the right to dispute the Superintendent’s certification through arbitration. Justice Bond phrased it succinctly:

“If the Contractor disputed that by giving notice pursuant to cl 37.4(d) on the basis that it should have been granted an extension of time, it might vindicate that position in arbitration obtaining a direction from the arbitrator that there should have been an extension of time.”

This statement highlights a crucial lesson: even if the Superintendent has issued a certificate imposing a monetary liability on the Contractor (or absolving the Principal from having to pay), that certificate does not necessarily settle the question once and for all. The presence of an arbitration clause in the contract—and the parties’ careful drafting around final certificates and dispute notices—means the Contractor (or the Principal) can still put those issues before an arbitrator, seeking an authoritative ruling about the correctness of the Superintendent’s or the Principal’s stance.

Justice Bond also pointed out the logical sequence under which arbitration would be triggered. Once the Superintendent’s final certificate is issued, the “final certificate shall be conclusive evidence” except in certain circumstances, including “unresolved issues the subject of any notice of dispute pursuant to clause 42, served before the 7th day after the issue of the final certificate.” That notice of dispute procedure, in turn, funnels the parties into arbitration if they cannot otherwise resolve their differences.

Practitioners should note, too, the Court’s observation that this approach—deferring any real monetary consequences of Superintendent certifications to the final certificate stage—does not leave a party permanently deprived of its entitlement. Instead, it reflects a commercial bargain that ensures the Principal can still seek the benefit of liquidated damages, but only when the project is sufficiently far along (or completed) such that final entitlements are being ascertained in a single accounting. Meanwhile, the Contractor retains a robust right to arbitrate any alleged missteps in certifying or quantifying that liability.

All told, Pacific Diamond 88 serves as a timely reminder that parties who strike out the more immediate set-off or recourse mechanisms in standard forms are not banishing themselves to a realm of indefinite uncertainty. Instead, as Justice Bond indicates, they are choosing to “unite in rejecting” a mid-project set-off process, and deferring the question of liability or entitlement until the end-game—knowing the law, and the arbitration clause in particular, will still allow them to test the Superintendent’s conclusions when it truly matters.

A recent decision in the Supreme Court of Tasmania, reported as [2025] TASSC 2, provides clear guidance on how principles of possession apply to cryptocurrency. The matter involved an appellant and a respondent who agreed that the appellant would invest ten thousand dollars of the respondent’s money in Bitcoin. A dispute later arose when the appellant retained some of the purchased cryptocurrency as a fee, rather than transferring all of it to the respondent. In considering whether the respondent could successfully bring claims in detinue and conversion, the court turned to a principle that remains vital in physical and digital property cases alike: it is trite law that a person is in possession of property if that person has actual control of the property and an intention to possess it.

In this dispute, the court examined whether the appellant maintained actual control over the relevant Bitcoin and intended to possess it as his own. Although Bitcoin is intangible, the court emphasized that its owner is the one who controls the private keys for the digital wallet in which the currency is held. Because possession for legal purposes depends on excludability and control, having sole access to the private keys is essentially equivalent to having physical custody of a tangible item. Moreover, the appellant did not disclose or prove any arrangement suggesting that the appellant lacked such control or that another entity actually had possession of the keys.

An important dimension to the court’s reasoning was the fact that the appellant consistently acted as if he personally oversaw the Bitcoin and had sole authority regarding transfers. The respondent had trusted the appellant to invest the funds, and the court concluded that the appellant was the only individual capable of granting or denying access to the cryptocurrency. That exclusive ability to decide who received the Bitcoin, combined with evidence of the appellant’s intent to keep some of it as a fee, satisfied the requirement for possession as traditionally defined by case law. The intangible nature of Bitcoin did not undermine its status as property and did not invalidate claims that relied on principles of physical property law. The court made it clear that so long as something can be controlled, held, and excluded from others, it can be the subject of detinue and conversion.

The key lessons from this matter are straightforward. First, cryptocurrency is property and can be possessed in the eyes of the law. Second, a court will look closely at who actually controls the private keys. If a person has those keys and no one else can move the cryptocurrency without that person’s cooperation, that person is in possession. Third, to establish detinue, the respondent had to show that the appellant held the Bitcoin in a manner inconsistent with the respondent’s rightful claim and refused to return it after demands were made. Fourth, to demonstrate conversion, the respondent had to prove that the appellant’s actions were so inconsistent with the respondent’s ownership that it amounted to a denial of that ownership. In both these torts, actual possession by the appellant was crucial, and the court had little trouble concluding that he held the digital property under his sole control.

The judgment also touched on the appellant’s claim for a fee. The appellant insisted that a portion of the respondent’s Bitcoin constituted his fee, but the court determined that the appellant never secured express agreement that he could retain the cryptocurrency in that manner. Although it was recognized that the appellant was entitled to some compensation for his services, the judge refused to accept that the appellant could simply keep part of the digital currency as that fee. The judge took note of an original suggestion that any fee might be based on a “percentage over base,” meaning a fee on top of the ten thousand dollars. Since the respondent had wanted ten thousand dollars’ worth of Bitcoin, the court found it reasonable that an appropriate fee should be reflected in normal currency rather than in withheld cryptocurrency. The appellant’s unilateral decision to keep some of the Bitcoin was inconsistent with the respondent’s ownership rights, leading directly to liability.

Because the appellant maintained control over the private keys, the court found that he possessed the Bitcoin and was responsible for returning it upon demand. By refusing to do so, the appellant exposed himself to damages. The court observed that the demand and refusal elements had been established on several occasions. When the respondent requested the immediate transfer of the entire amount of Bitcoin, the appellant delivered only a portion. When further demands were made, the appellant again refused to hand over the remainder. These facts all supported the finding that the appellant both detained the currency unjustly (detinue) and dealt with it in a way inconsistent with the respondent’s rights (conversion).

The ruling demonstrates how digital assets, though intangible, are not beyond the reach of ordinary legal principles. The central premise continues to be that actual control plus the intention to possess qualifies as possession, no matter whether the subject property is a physical object or an electronic asset safeguarded by cryptography. The holder of the private keys enjoys the same kind of power that someone holding a physical item would have: it can be kept, transferred, or refused to others. Accordingly, courts can use familiar rules of property and tort to resolve disputes over cryptocurrency.

This matter reaffirms that individuals handling cryptocurrency for others should do so with clear agreements in place, especially regarding fees and possession. Failing to clarify whether any commission will be in cryptocurrency or in ordinary currency often sets the stage for these disputes. Above all, the court’s approach confirms that the law does not require tangibility for an asset to be owned and possessed, so long as those hallmarks of control and intention are in place.

The recent decision in Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd (No 2) [2024] NSWSC 1223 sheds light on the complex interplay between adjudication under the Building and Construction Industry Security of Payment Act 1999 (“SOPA”) and arbitration clauses in construction contracts. This case underscores the importance of meticulously drafted dispute resolution clauses and the strategic considerations parties must weigh when disputes arise in large-scale infrastructure projects.

The dispute centered on two adjudications under SOPA arising from contracts between the head contractor, Qube RE Services, and the subcontractor, Martinus Rail Pty Ltd, for work on the Moorebank Intermodal Terminal Project in Western Sydney. The adjudications obligated Qube to pay Martinus a total of $71 million. While Martinus sought to enforce these payments, Qube aimed to set aside the adjudications or, alternatively, stay their enforcement pending the determination of the parties’ rights through arbitration.

At the heart of the matter were significant delays in project completion. Martinus attributed these delays to Qube’s late and inadequate provision of designs and failure to grant timely site access. Qube, on the other hand, did not accept these explanations and eventually terminated the contracts, citing both cause and convenience. The validity of the termination for cause remains contested.

The contracts contained elaborate dispute resolution clauses, mandating a multi-stage process that included negotiations, escalation to senior executives, and ultimately arbitration. Despite this, Martinus pursued adjudication under SOPA for payment claims, which resulted in favorable determinations totaling over $15 million in earlier proceedings and the substantial sums at issue in this case.

Qube challenged the adjudications on several grounds, alleging jurisdictional errors by the adjudicator, particularly in his failure to consider key submissions and arguments. One pivotal issue was whether the adjudicator went beyond his jurisdiction by addressing matters not properly before him, effectively nullifying previous court decisions, such as the earlier judgment by Rees J in December 2023.

Justice Parker, presiding over the case, found that jurisdictional error was established. He concluded that the adjudicator’s award went beyond the scope of the adjudication proceedings, as it included matters not raised in Martinus’s payment claims and did not adequately consider Qube’s submissions. This led to the partial setting aside of the adjudication determinations and associated judgments, specifically those components affected by the errors.

An essential aspect of the judgment was the court’s consideration of whether to grant a stay of enforcement of the adjudicated amounts pending arbitration. Qube argued that if the payments were enforced and they ultimately succeeded in arbitration, Martinus might be unable to repay the sums, causing irreparable prejudice. The court examined precedents such as Grosvenor Constructions v Musico and Veolia Water Solutions v Kruger Engineering, which acknowledge that while the SOPA regime is designed to be “pay now, argue later,” there are circumstances where a stay is appropriate to prevent injustice.

However, Justice Parker refused the stay application, emphasizing that granting a stay would undermine the legislative intent of SOPA to ensure prompt payment to contractors, thereby supporting their cash flow. The court noted that Martinus was trading profitably and that there was insufficient evidence to suggest a significant risk of insolvency that would prevent repayment if required. The decision reflects a cautious approach, balancing the need to uphold the statutory scheme against the potential for prejudice to the paying party.

This case illustrates the nuanced challenges that parties in construction contracts may face, particularly concerning dispute resolution mechanisms and financial considerations during litigation. The elaborate dispute resolution clauses in the contracts, which culminated in arbitration, highlight the necessity for clearly defined mechanisms to resolve disputes. Parties must be acutely aware of how these contractual provisions interact with statutory remedies like SOPA adjudication. Understanding this interplay is crucial, as it can significantly impact the strategies employed when a dispute arises.

Moreover, the case underscores the strategic use of adjudication and arbitration. While adjudication under SOPA offers a quicker route to payment, especially for contractors seeking to maintain cash flow, arbitration provides a comprehensive forum for resolving more complex disputes, including those involving substantial claims and counterclaims. Parties need to carefully consider which avenue is more appropriate for their situation, weighing factors such as the urgency of payment, the complexity of the dispute, and the potential for prolonged litigation.

The judgment also brings to light the jurisdictional limits of adjudicators. Adjudicators must operate strictly within the confines of the matters properly before them. In this instance, the adjudicator’s failure to consider key submissions and his inclusion of matters not raised in the payment claims led to a finding of jurisdictional error. This serves as a reminder that both parties and adjudicators must ensure procedural compliance to avoid determinations being set aside.

Financial considerations, particularly the risk of insolvency, play a significant role in such disputes. When seeking a stay of enforcement, the applying party must provide compelling evidence of the other party’s inability to repay, going beyond mere speculation about financial difficulties. The court’s refusal to grant a stay in this case demonstrates the high threshold required to override the statutory intent of SOPA, which aims to protect contractors’ cash flow and ensure prompt payment.

In the recent case of Australian Securities and Investments Commission v Bit Trade Pty Ltd [2024] FCA 953, the Federal Court delivered a pivotal judgment that resonates deeply within the cryptocurrency industry. The court scrutinized the nature of Bit Trade’s “Margin Extension” product, ultimately finding that it constitutes a credit facility under Australian law. This finding has significant implications for crypto exchanges operating in Australia, particularly regarding regulatory compliance.

Bit Trade, trading as Kraken in Australia, offers a platform where customers can purchase and sell digital assets, including cryptocurrencies. One of their offerings is the “Margin Extension” product, which allows customers to receive extensions of margin—in the form of digital assets or legal tender—to make spot purchases and sales of digital assets on the Kraken Exchange.

The crux of the case revolved around whether the Margin Extension product is a financial product requiring a target market determination (TMD) under Part 7.8A of the Corporations Act 2001 (Cth). The Australian Securities and Investments Commission (ASIC) alleged that Bit Trade contravened sections 994B(1) and (2) of the Act by issuing this product to retail clients without first making a TMD.

Bit Trade contended that the product was exempt under regulation 7.8A.20 of the Corporations Regulations, arguing that it did not involve a “deferred debt” as required by subparagraph (a) of regulation 2B(3) of the ASIC Regulations. They asserted that obligations arising from the Margin Extension did not constitute a debt because they might not involve an obligation to pay money.

However, the court disagreed. Justice Nicholas meticulously analyzed the Terms of Service (TOS) under which the Margin Extension product was offered. He highlighted that the provision of a Margin Extension in national currency, such as Australian or US dollars, indeed gives rise to a “deferred debt”.

From the judgment:

“The provision of a Margin Extension in national currency (including in Australian or US dollars) gives rise to a ‘deferred debt’ which is incurred by the customer when they are provided with the Margin Extension and which becomes payable upon the customer ceasing to be eligible to receive the Margin Extension.“

This finding was pivotal. It established that the Margin Extension is a credit facility involving credit of a kind referred to in subparagraph (a) of regulation 2B(3) of the ASIC Regulations. Consequently, the exception under regulation 7.8A.20 did not apply.

Justice Nicholas further elaborated:

“By issuing the Product to retail clients without having first made a target market determination for the Product, Bit Trade contravened s 994B(1) of the Corporations Act when read with s 994B(2).“

The court’s reasoning hinged on the interpretation of “debt” within the regulatory framework. Bit Trade argued that “debt” implies an obligation to pay money and that cryptocurrency is not money. Therefore, obligations to return cryptocurrency do not create a debt. However, the court noted that the Margin Extension could be provided in national currency, and obligations arising from such transactions do constitute a debt.

Justice Nicholas emphasized:

“An obligation to pay an amount of cryptocurrency of some type is not an obligation to pay a sum of money and therefore cannot be a debt… However, in circumstances where a Margin Extension is provided by Bit Trade in a national currency… this amounts to ‘a conditional but unavoidable obligation to pay a sum of money at a future time.’“

The judgment underscores the importance of understanding how financial regulations apply to products offered in the crypto space, especially when traditional financial concepts like “debt” intersect with digital assets. The court’s interpretation aligns with the view that when a product involves an obligation to repay in national currency, it falls within the ambit of a credit facility under the regulations.

For crypto exchanges and service providers, this case serves as a cautionary tale. Offering products that involve financial accommodations in national currency without adhering to regulatory requirements can lead to significant legal repercussions. The need for a target market determination is not merely a procedural formality but a critical compliance requirement designed to protect consumers.

The court’s decision also reflects a broader trend of regulators and courts applying existing financial laws to the evolving crypto industry. While cryptocurrencies themselves may not be considered money in the traditional sense, products and services involving them can still be subject to financial regulations when they intersect with national currencies or create obligations akin to traditional financial instruments.

In conclusion, the Federal Court’s judgment in ASIC v Bit Trade reinforces the necessity for crypto businesses to diligently assess their products against the regulatory landscape. The provision of margin extensions in national currency creates a deferred debt, categorizing the product as a credit facility requiring compliance with specific provisions of the Corporations Act.

As the crypto industry continues to mature, adherence to regulatory obligations becomes ever more critical. Exchanges must ensure that they are not only innovative in their offerings but also compliant with the laws that govern financial products. This case highlights that the intersection of crypto and traditional finance is not a legal vacuum; existing laws can and will be applied to new technologies and products.

The judgment serves as a reminder that while cryptocurrencies may challenge traditional notions of money and finance, the legal frameworks in place are adaptable. Businesses operating in this space must stay informed and proactive in their compliance efforts to navigate the complex regulatory environment successfully.

The decision reaffirms the principle that innovative financial products are not beyond the reach of existing legal and regulatory frameworks. Companies must ensure that their offerings are compliant, thereby safeguarding both their operations and their customers.

The judgment in Silverstream SEZC v Titan Minerals Ltd from the Supreme Court of Western Australia shines a light on a vital and often misunderstood aspect of dispute resolution—the interaction between expert determination and arbitration. The case pivots around the refusal of a stay of proceedings sought by Titan Minerals Ltd (“Titan”), based on a clause in a set of royalty agreements that mandated disputes related to the calculation of royalties be referred to expert determination. What emerges from the court’s reasoning is a nuanced understanding of the differences between these two forms of alternative dispute resolution (ADR) and the conditions under which courts should intervene.

At the heart of the dispute, Silverstream SEZC (“Silverstream”) accused Titan of breaching several royalty agreements by failing to maintain mining properties in good standing, thus forfeiting the entitlements that generated the royalties. Titan responded by tendering alternative royalties and sought to stay the court proceedings, arguing that the dispute over the valuation of these substituted royalties should be determined by an expert, as stipulated in the agreements. However, Justice Solomon, presiding over the case, disagreed and dismissed the application for a stay, offering a rich commentary on the broader relationship between expert determination and arbitration.

Expert determination is a consensual process where parties agree to have an independent expert resolve specific technical issues. This process is typically informal, speedy, and effective for disputes requiring specialized knowledge, such as those involving technical valuations. However, unlike arbitration, which is governed by a legislative framework—such as the Commercial Arbitration Act 2012 (WA) in this case—expert determination does not automatically trigger a stay of proceedings. This is because expert determination, by its nature, is intended to resolve specific, often narrow technical issues, while arbitration can address the entirety of a dispute.

Justice Solomon made a critical distinction between the scope of disputes appropriate for expert determination versus those suitable for arbitration. He underscored that while arbitration is a comprehensive dispute resolution mechanism, designed to deal with all facets of a conflict, expert determination is more limited in scope, typically confined to particular technical or factual issues. The court emphasized that even if a dispute concerning the valuation of royalties might be subject to expert determination, this did not preclude the court from addressing other issues, such as breaches of contract and the appropriate remedies for such breaches.

The court’s refusal to grant the stay was rooted in its interpretation of the royalty agreements, specifically Clause 9, which mandated expert determination for disputes regarding the calculation of gross revenue or royalties. Justice Solomon noted that the current dispute was not genuinely about the calculation or valuation of the royalties—at least not yet—but rather about whether Titan had breached its obligations under the agreements by failing to maintain the mining properties in good standing. Since this issue did not fall within the scope of Clause 9, it was not appropriate to stay the proceedings in favor of expert determination.

Justice Solomon also considered the broader principles governing the exercise of discretion in staying proceedings. He observed that courts generally respect the parties’ agreements to resolve disputes in a specified manner, but only when the dispute actually falls within the scope of the agreed process. Where a dispute does not lend itself to expert determination or where the dispute encompasses issues beyond the expertise of the appointed expert, a court should be cautious in granting a stay. This aligns with the principle that parties should be held to their bargains only when the agreed process is suitable and just for resolving the dispute.

A key takeaway from the judgment is the emphasis on the specificity of the issues being referred to expert determination. The court acknowledged that expert determination is designed to resolve technical questions—for instance, the fair market value of royalties derived from mining operations—but it is not equipped to handle broader legal questions, such as whether a party has breached its contractual obligations. As Justice Solomon noted, staying proceedings in such a scenario could result in duplication of effort and potentially multiplicity of proceedings, which runs contrary to the principles of efficient dispute resolution.

The judgment also illustrates the importance of evidence and procedural fairness in the context of expert determination. Silverstream had sought substantiation for the valuation of the replacement royalties tendered by Titan, which Titan had not provided. The court found that without such substantiation, it was premature to characterize the dispute as one solely about valuation and, consequently, premature to refer the matter to expert determination.

In a broader comparative perspective, this judgment serves as a reminder that while both expert determination and arbitration are valuable tools in the arsenal of ADR, they serve distinct purposes. Arbitration is a more formal and expansive process, suitable for resolving entire disputes, while expert determination is a more limited mechanism, typically employed for resolving specific technical issues. Courts, therefore, play a crucial role in determining the appropriate scope and application of these processes, ensuring that disputes are resolved in a manner that is both fair and efficient.

The Silverstream decision reinforces the idea that not all disputes are apt for expert determination, particularly when the issues at hand extend beyond mere technical calculations and touch upon broader legal rights and obligations. In such cases, the courts retain a vital oversight function, ensuring that parties are held to their agreements only when it is just and appropriate to do so.

The High Court of Australia’s ruling in CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28 marks a significant development in the jurisprudence surrounding the finality of arbitral awards and the extent to which courts can intervene in arbitral proceedings. This decision centers on whether an arbitral tribunal, after issuing an interim award, could revisit issues that were argued to be conclusively settled by that interim award. The Court’s ruling provides important guidance on the application of the functus officio doctrine and the standard of judicial review for setting aside arbitral awards under the Commercial Arbitration Act 2012 (WA).

Background

The dispute between CBI Constructors Pty Ltd (“CKJV”) and Chevron Australia Pty Ltd arose from a contract related to the Gorgon Project, a major offshore oil and gas development. CKJV, under the contract, supplied staff for the project, and a dispute emerged over the reimbursement of staff costs. CKJV argued that Chevron underpaid, while Chevron counterclaimed that it had overpaid.

The arbitration was conducted under the UNCITRAL Arbitration Rules and was bifurcated into separate hearings on liability and quantum. The arbitral tribunal issued an interim award in December 2018 (the “First Interim Award”), addressing all liability issues. The tribunal concluded that CKJV was entitled only to actual costs, rejecting CKJV’s claim for higher contractual rates.

Following this, CKJV sought to advance a new argument—the “Contract Criteria Case”—which pertained to how the “actual costs” should be calculated. Chevron objected, arguing that the tribunal was functus officio and thus lacked the authority to address any further liability issues. Despite these objections, the tribunal issued a second interim award (the “Second Interim Award”), allowing CKJV’s new argument to proceed.

Chevron then applied to the Supreme Court of Western Australia to set aside the Second Interim Award, arguing it exceeded the tribunal’s jurisdiction. The Supreme Court and the Court of Appeal agreed with Chevron, finding that the tribunal was functus officio and had overstepped its jurisdiction by revisiting liability issues settled by the First Interim Award. CKJV appealed to the High Court of Australia.

The High Court’s Decision

The High Court was tasked with determining two central issues:

1. Whether the tribunal was functus officio after issuing the First Interim Award, thus precluding it from addressing the Contract Criteria Case in the Second Interim Award.
2. Whether the Supreme Court of Western Australia applied the correct standard of review in setting aside the Second Interim Award.

Functus Officio and the Scope of Tribunal Authority

The High Court’s analysis began with the principle of functus officio—the idea that once a tribunal has issued a final decision on a matter, it cannot revisit that decision. However, the Court found that this principle did not apply in the manner the lower courts had concluded. The Court stated, “The end result is that the search for a justification for a conclusion by a court that the First Interim Award rendered the arbitral tribunal functus officio with respect to the matters the subject of that award fails.” This meant that the tribunal retained jurisdiction to issue the Second Interim Award.

The Court emphasized that the First Interim Award, while final on the issues it addressed, did not cover all aspects of the dispute. Specifically, it did not conclusively resolve how the “actual costs” should be calculated, leaving room for further determination. As such, the tribunal was within its rights to address the Contract Criteria Case in the Second Interim Award.

The Court highlighted that “an award can be ‘final’ in a number of ways or senses,” and in this instance, the First Interim Award was final only concerning the issues it explicitly resolved. The tribunal’s decision to entertain the Contract Criteria Case in the Second Interim Award did not overstep its jurisdiction.

Judicial Review and the Standard of Intervention

On the second issue, the High Court scrutinized the standard of review applied by the Supreme Court. CKJV had argued that the courts should defer to the tribunal’s interpretation of its own jurisdiction. However, the High Court found that the courts were entitled to conduct a de novo review when jurisdictional questions arose. The Court affirmed that “the correctness standard has been adopted” in such cases, meaning the courts should independently assess whether the tribunal exceeded its jurisdiction.

However, the High Court ultimately determined that the tribunal had not exceeded its jurisdiction in issuing the Second Interim Award. As a result, the Court concluded that the Supreme Court had erred in setting aside the award, as there was no basis for concluding that the tribunal acted beyond the scope of the arbitration agreement.

Implications for Arbitration Practice

The High Court’s decision in CBI Constructors Pty Ltd v Chevron Australia Pty Ltd reinforces the finality of arbitral awards while also acknowledging the flexibility of tribunals to manage the arbitration process, including issuing multiple awards on different aspects of a dispute. The ruling clarifies that tribunals are not functus officio in relation to issues that remain unresolved, even after an interim award has been made.

This case also underscores the limited scope of judicial intervention in arbitration. Courts are empowered to review arbitral awards, but only within strict confines. The High Court’s emphasis on the de novo standard for reviewing jurisdictional issues reaffirms that while courts have a role in overseeing arbitration, their intervention is appropriately circumscribed to ensure that the arbitration process remains efficient and final, consistent with the parties’ agreement.

In summary, the decision serves as a reminder that while arbitration provides a final and binding resolution to disputes, the tribunal’s authority is not extinguished by interim decisions unless those decisions fully resolve the issues in question. This ruling will likely influence the conduct of future arbitrations, particularly in how parties and tribunals structure interim awards and approach unresolved issues.