text:
In Australia, two regimes exist that regulate arbitration, depending upon whether the arbitration is characterised as international or domestic. Prior to 2010, there were significant differences between the policy settings for international and domestic arbitration. Therefore, in respect to cases prior to 2010, it is important to consider whether the arbitration in question was international or domestic. Australian cases relating to domestic arbitration, prior to this time, have often been the subject of international criticism where commentators did not understand that those cases related to domestic arbitration only.
There was, however, some legitimate criticism of cases that related to international arbitration where the Australian courts had failed to understand the policy setting stipulated by the New York Convention,[1] and the Model Law (as at 1985),[2] both of which had been incorporated into the law of Australia for the purposes of international arbitration.
By 2010, there was a ground swell of support for significant reform of the law relating to both international and domestic arbitration. Both regimes are now based on the Model Law (as at 2006).[3] However, there are subtle differences between the two regimes that are discussed below.
The 2010 reforms involved amendments of the existing International Arbitration Act 1974 (IAA),[4] and the repeal of the mid-1980s version of the Commercial Arbitration Act (the Old CAA) of each state and territory (except that relating to the Australian Capital Territory which retains the Old CAA) and enactment of a new Commercial Arbitration Act by each state and territory (collectively the CAA).[5] The principal reforms relate to:
- confidentiality;
- stays (for domestic arbitration);
- the capacity to contract out of the Model Law for international arbitration; and
- recourse against the award.
Before embarking on a detailed discussion of these issues, it is appropriate to first consider how Australian law distinguishes between international and domestic arbitration.
Characterisation of arbitration agreements - international v. domestic
Pursuant to Section 1(3) of the CAA an arbitration is domestic if at the time of the conclusion of the arbitration agreement the parties had their places of business in Australia and the Model Law (as given effect by the IAA) does not apply.
Article 1(3) of the Model Law provides that an arbitration is international (and therefore not domestic) if:
(a) the parties to an arbitration agreement have, at the time of conclusion of that agreement, their places of business in different States;[6] or
(b) one of the following places is situated outside the State in which the parties have their places of business:
(i) the place of arbitration if determined in, or pursuant to, the arbitration agreement;
(ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is most closely connected; or
(c) the parties have expressly agreed that the subject-matter of the arbitartion agreement relates to more than one country.
Accordingly, it is possible for an arbitration between two Australian entities to be regulated by the international regime.
In other common law countries, confidentiality has been a hallmark of arbitration, rooted in principles of self-determination and the parties' ability to choose to keep both their dispute and its resolution private and confidential.[7] The confidentiality associated with a private arbitration in those countries has meant that commercially sensitive information or awards will not be in the public domain.[8] The risk of reputational damage associated with publicly airing a dispute in open court is also avoided if the dispute is kept confidential.[9]
Prior to the enactment of the CAA in Australia, there was no presumption of confidentiality in Australia. In the 1995 case Esso Australia Resources Ltd v. Plowman (Minister for Energy and Minerals) ('Esso'),[10] the High Court of Australia held that there was no implied obligation of confidentiality in arbitration agreements. Confidentiality was an obligation only if expressly specified in the arbitration agreement.
In Esso, Plowman sought to disclose information Esso had provided during the course of the arbitration. Esso argued that the arbitration agreement contained an implied term of confidentiality, which meant that documents obtained during the course of the arbitration could not be disclosed to third parties. The High Court held by majority that while arbitration proceedings are private, they attract no greater confidentiality than a court proceeding, and that confidentiality is not a necessary attribute of such privacy.
In practice, parties could circumvent Esso by expressly agreeing that the arbitration was confidential as well as private.[11]
The Australian position following Esso was out of step with international commercial arbitration. Accordingly, some argued that this was an important reason why foreign disputants chose not to arbitrate in Australia.[12]
The CAA brought Australian domestic arbitration law back in line with international best practice by imposing a statutory duty of confidence. Section 27E of the CAA prohibits the parties and the tribunal from disclosing confidential information, subject to certain exceptions. Pursuant to Section 27E(1) the parties may agree to opt-out of the statutory duty.
The IAA, which deals with international arbitration, provided for confidentiality on an opt-in basis. However, in October 2015, the IAA was amended to mirror the duty of confidence required in respect of domestic arbitration.
As discussed above, the IAA gives effect to both the New York Convention and the Model Law (2006 version). The Model Law has, by virtue of Section 16 of the IAA, the force of law in Australia. Section 7 of the IAA enforces 'foreign' arbitration agreements,[13] and provides that a court must upon an application by a party to the proceedings stay any court proceedings within the ambit of the arbitration clause.
Article 8 of the Model Law relates to international arbitration as defined in the Model Law (as discussed above), which also stipulates that a court must, on application by a party to the proceedings, grant a stay of proceedings commenced contrary to the arbitration agreement. This article has been adopted in the domestic regime.
Both the international and domestic regimes are subject to the usual exception that a stay will not be granted if the arbitration agreement is 'null and void, inoperable or incapable of being performed'.
The issues that arise in respect of stays are twofold:
- Is the dispute the subject of the proceedings within the scope of the arbitration clause?
- Is the arbitration clause null and void, inoperable or incapable of being performed?
Is the dispute the subject of the proceedings within the scope of the arbitration clause?
This issue is to be resolved by a proper interpretation of the arbitration clause. Like in England and Wales, prior to Fiona Trust & Holding Corp v. Privalov,[14] Australian courts had read arbitration clauses strictly, including making distinctions between clauses that referred to arbitration disputes 'arising under', 'connected with' or 'relating to' the contract. This has in the past given rise to serious inconvenience where a court has stayed part of the proceedings that were held to fall within the scope of the arbitration clause, while allowing the balance of the dispute to proceed to litigation.[15]
However, by the 1990s, a line of authority developed that arbitration clauses should be construed widely,[16] so as to allow claims based on the contract and claims based on non-contractual remedies (arising from the same or similar facts) to be determined together in arbitration. The House of Lords decision in the Fiona Trust case arguably went further than this line of authority, and was accepted by the Western Australian Court of Appeal.[17]
However, the Fiona Trust case was recently considered by the New South Wales Court of Appeal in Rinehart v. Welker.[18] In that case the relevant arbitration clause provided that disputes 'under this deed' were to be referred to arbitration. Bathurst CJ referred to the decision of the High Court of Australia in Toll (FGCT) Pty Ltd v. Alphapharm Pty Ltd,[19] which stands for (inter alia) that the correct interpretation of a contract is to be determined objectively, by reference to what a reasonable person would have understood the words to mean. However, he went on to observe:[20]
That does not mean that the court is entitled to disregard clear and unambiguous language used by the parties to produce results which the surrounding circumstances may indicate are more commercial or business-like: Western Export Services Inc v. Jireh International Pty Ltd [2011] HCA 45; (2011) 86 ALJR 1. Resort may only be had to surrounding circumstance where the words in question exhibit uncertainty or ambiguity: Codelfa Construction Pty Ltd v. State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337 at 352.
He then referred to the line of authority that had developed since the mid-1990s, which supported a liberal interpretation of arbitration clauses, and then stated:[21]
That is not to say that the words of the clause can be given a meaning they do not have to satisfy a perceived commercial purpose. Such an approach would be inconsistent with the approach to construction of contracts to which I have referred above. As stated by French J in Paper Products the scope of disputes covered by an arbitration clause must depend on the language of the clause. Similar statements were made by Allsop P whilst a judge of the Federal Court, in Walter Rau and Comandate Marine Corp and in this court in Lipman Pty Ltd. Rather, the words of an arbitration clause should be, to the extent possible, consistent with the ordinary meaning of the words, liberally construed.
It follows that it is not appropriate for this court to adopt what Lord Hoffman described in Fiona Corporation as a 'fresh start' and construe clauses irrespective of the language in accordance with the presumption that the parties are likely to have intended any dispute arising out of the relationship into which they have entered to be decided by the same tribunal unless the language makes it clear certain questions were intended to be excluded. Whilst the presumption that parties intended the same tribunal to resolve all their disputes may justify a liberal approach consistent with the plain meaning of the words in question, the approach suggested by Lord Hoffman is contrary, in my opinion, to the approach laid down by the High Court as to the construction of commercial contracts.
The approach taken in the Fiona Trust case by Lord Hoffman was put succinctly as follows:[22]
In approaching the question of construction, it is therefore necessary to inquire into the purpose of the arbitration clause. As to this, I think there can be no doubt. The parties have entered into a relationship, an agreement or what is alleged to be an agreement or what appears on its face to be an agreement, which may give rise to disputes. They want those disputes decided by a tribunal which they have chosen, commonly on the grounds of such matters as its neutrality, expertise and privacy, the availability of legal services at the seat of the arbitration and the unobtrusive efficiency of its supervisory law. Particularly in the case of international contracts, they want a quick and efficient adjudication and do not want to take the risks of delay and, in too many cases, partiality, in proceedings before a national jurisdiction.
If one accepts that this is the purpose of an arbitration clause, its construction must be influenced by whether the parties, as rational businessmen, were likely to have intended that only some of the questions arising out of their relationship were to be submitted to arbitration and others were to be decided by national courts. Could they have intended that the question of whether the contract was repudiated should be decided by arbitration but the question of whether it was induced by misrepresentation should be decided by a court? If, as appears to be generally accepted, there is no rational basis upon which businessmen would be likely to wish to have questions of the validity or enforceability of the contract decided by one tribunal and questions about its performance decided by another, one would need to find very clear language before deciding that they must have had such an intention.
A proper approach to construction therefore requires the court to give effect, so far as the language used by the parties will permit, to the commercial purpose of the arbitration clause. But the same policy of giving effect to the commercial purpose also drives the approach of the courts (and the legislature) to the second question raised in this appeal, namely, whether there is any conceptual reason why parties who have agreed to submit the question of the validity of the contract to arbitration should not be allowed to do so.
The second paragraph quoted above is of particular importance to Lord Hoffman's reasoning, specifically the question:
Could they [the businessmen who entered into the arbitration agreement] have intended that the question of whether the contract was repudiated should be decided by arbitration but the question of whether it was induced by misrepresentation should be decided by a court?
He concludes that it is not rational to read the clause narrowly. That is, having regard to the purpose of the clause, it is extremely unlikely that rational businesspersons would have wanted the resolution of a dispute to be dealt with by two different tribunals.
Since Rinehart was decided, the High Court has again considered the correct approach to contractual interpretation. In Mount Bruce Mining Pty Ltd v. Wright Prospecting Pty Ltd,[23] French CJ, Nettle and Gordon JJ observed:[24]
In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects secured by the contract.
With all due respect to the New South Wales Court of Appeal, the decision in Rinehart puts too much emphasis on what it contends is the plain meaning of the words (construed by lawyers having regard to old authority) rather than the likely (objective) meaning of the same words used by businesspersons, not schooled in the law. Accordingly, it is respectfully suggested that, in time, Rinehart will be regarded as an anomaly, inconsistent with the modern authority that had been developing since the mid-1990s.
The result is that it is likely that the logic of Lord Hoffman will be adopted in Australia because it is consistent with the High Court's requirement that clauses be construed in a manner consistent with what a reasonable businessperson would have understood them to mean.
Is the arbitration clause null and void, inoperable or incapable of being performed?
This exception was considered by the Supreme Court of New South Wales in Siemens Ltd v. Origin Energy Uranquinty Power Pty Ltd.[25] In this case, Siemens sought to recover amounts the subject of payment claims made under the Building and Construction Industry (Security of Payment) Act 1999 (the SOP Act).[26] Origin sought a stay under Section 8(1) of the relevant CAA arguing that the matter was the subject of an arbitration agreement.[27]
The parties fell into dispute about the payment claims in early 2009. At that time, under the terms of their existing contract, either party could refer an unresolved dispute to arbitration. However, in late 2010, they expressly agreed that all pre-existing disputes had to be resolved by arbitration.
The facts of this case are complex. However, in summary, the defendant sought a stay of proceedings brought pursuant to Section 15(2)(1) of the SOP Act. That legislation stipulated that the plaintiff could issue a payment claim pursuant to the legislation. The defendant had a limited time to respond to such a claim. If it did not do so, the plaintiff could recover the amount claimed as a debt due in any court of competent jurisdiction. The defendant failed to respond within time, but contended that its failure was induced by misleading and deceptive conduct, which, pursuant to other legislation[28] and authority,[29] entitled it to defend the claim. The defence was a matter which could not be dealt with by the adjudication regime prescribed by the legislation. Accordingly, the dispute could only be dealt with by a court or arbitration.
Ball J concluded that while the dispute fell within the ambit of the arbitration clause, it was not arbitrable. His conclusion is best explained by the contention that Section 15(2) is part of the mechanism which leads to adjudication, a quick interim decision which can be reversed by a court or arbitrator subsequently. While the dispute in the case related to whether the right of the plaintiff to sue in court for a statutory debt created by Section 15(2) had been adversely affected by misleading and deceptive conduct, his Honour had regard to the overall scheme of the legislation in concluding that the dispute was not arbitrable.
While the reasoning in this case can be criticised, it is unique. As the reasons in this case establish, for an arbitration clause to be held null and void, inoperable or incapable of being performed, a serious issue of public policy must arise.
The capacity to contract out of the Model Law for International Arbitration
In an unfortunate 2001 decision, the Queensland Court of Appeal held in Australian Granites v. Eisenwerk that where parties choose to have their disputes determined according to institutional rules, they implicitly choose to exclude the operation of the Model Law.[30] The decision created several difficulties, the most significant being that the lex arbitri became the relevant Old CAA. The important differences between the IAA and the Old CAA included:
- the granting of a stay of court proceedings was a matter of discretion for the courts; and
- there was, subject to leave being granted, a general right of appeal in respect of the merits of an award.
While Eisenwerk was rejected by the Supreme Court of New South Wales in Cargill International SA v. Peabody Australia Mining Ltd,[31] it was followed in other cases.[32] The effect of Eisenwerk was not consistent with the policy settings evident from the IAA. Accordingly, the federal parliament amended Section 21 of the IAA to provide that if the Model Law applies to an arbitration, the law of a state or territory does not apply to that arbitration. The amendment did not end the controversy, however, because the question remained about whether Eisenwerk applied to arbitration agreements struck before the amendment to Section 21.[33] To put the controversy beyond all doubt, the federal parliament gave the amended Section 21 retrospective effect in 2015.[34]
Recourse against the award
Prior to the law reform in 2010, the policy settings for domestic arbitration were very different to those for international arbitration. In domestic arbitration there was a general right of appeal. That right was subject to the court granting leave. The legislation contained the criteria for granting leave, which were similar in effect to the 'Nema Rules' established pursuant to the Arbitration Act 1979 in England and Wales.[35] Under the Old CAA it was not possible to contract out of the right of appeal until after the dispute had arisen. This was rarely, if ever, agreed. Accordingly, the default position was that there was a general right to have the merits of an award reviewed, if leave was granted. In addition, the award could be challenged pursuant to Section 42 of the Old CAA if the arbitrator had engaged in misconduct. Misconduct related to both extreme behaviour (such as fraud) and non-blameworthy conduct, such as falling into some technical jurisdictional error.
Pursuant to the new legislation an appeal is only possible in respect of a domestic arbitration if the parties so agree (which can be done at any time). Even where there is such an agreement, the right of appeal is subject to leave being granted by a court. The criteria for granting leave have been tightened.[36]
Where the parties to a domestic agreement have not agreed to make the award the subject of an appeal, recourse against the award is limited to those matters prescribed by the Model Law. Therefore, in this circumstance the position is the same as that for international arbitration.
In the context of international arbitration it is relevant to consider the extent to which:
- an Australian international award can be challenged in Australia; and
- an Australian court will refuse to enforce an international award from a non-Australian seat.
Setting aside an award made in Australia
When choosing a seat of arbitration it is important to understand the extent to which an award may, at the seat, be annulled or set aside by the local courts. This issue is not dealt with by the New York Convention, as it relates to enforcement of foreign awards (i.e., enforcement in a state that is not the seat).
Some jurisdictions have sought to distinguish themselves from others by allowing a merits review (i.e., an appeal), however, Australia has not adopted this approach. Instead, Article 34 of the Model Law entitles a party to seek to have an award set aside in limited circumstances, which largely mirror the grounds for refusing to enforce a foreign award in Article V of the New York Convention.
Article 34 of the Model Law provides that an award may only be set aside where:[37]
(a) the [applicant] furnishes proof that:
(i) a party to the arbitration agreement ... was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or ... the law of this State; or
(ii) the [applicant] was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present [its] case; or
(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration ...; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement [conflicted with a mandatory term of, or was not in accordance with, the Model Law]; or
(b) the court finds that:
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or
(ii) the award is in conflict with the public policy of this State.
Internationally, in the context of Article V of the New York Convention, the most controversial issue has been the circumstances in which a court will refuse to enforce an award because it is against public policy. Public policy may also result in the setting aside of an Australian international arbitration award and it is therefore important to consider that ground in further detail.
Setting aside an award on the grounds of public policy
In TCL Air Conditioner (Zhongshan) Co Ltd v. Castel Electronics Pty Ltd,[38] the defendant, an Australian company, commenced an arbitration against the plaintiff, a Chinese company, claiming breaches of a distribution agreement between them. An arbitral tribunal seated in Australia awarded Castel over $3 million, which was calculated by reference to the financial impact of the breaches on Castel's sales. TCL sought to set aside the award under Article 34 of the Model Law, and resist enforcement under Article 36 (as Castel had sought to enforce the award under Article 35) on two grounds: first, the arbitrators failed to provide it with procedural fairness such that the rules of natural justice were breached in connection with the making of the award, and second, the award was in conflict with, or contrary to, public policy in Australia.
TCL failed on both counts, with the Full Federal Court (Allsop CJ, Middleton and Foster JJ in agreement) making important findings concerning the nature of the application made by TCL, and what is required to prove a successful claim. Their Honours held:[39]
If the rules of natural justice encompass requirements such as the requirement of probative evidence for the finding of facts or the need for logical reasoning to factual conclusions, there is a grave danger that the international commercial arbitral system will be undermined by judicial review in which the factual findings of a tribunal are re-agitated and gone over in the name of natural justice, in circumstances where the hearing or reference has been conducted regularly and fairly. That danger is acute if natural justice is reduced in its application to black-letter rules, if a mindset appears that these rules can be 'broken' in a minor and technical way and if the distinction between factual evaluation of available evidence and a complete absence of supporting material is blurred.
In this particular case, the application made by the plaintiff was:[40]
a disguised attack on the factual findings of the arbitrators dressed up as a complaint about natural justice.
From a practical view, the court identified what is required to trigger the requirement, noting that:[41]
An international commercial arbitration award will not be set aside or denied recognition or enforcement under Arts 34 and 36 of the Model Law (or under Art V of the New York Convention) unless there is demonstrated real unfairness or real practical injustice in how the international litigation or dispute resolution was conducted or resolved, by reference to established principles of natural justice or procedural fairness. The demonstration of real unfairness or real practical injustice will generally be able to be expressed, and demonstrated, with tolerable clarity and expedition. It does not involve the contested evaluation of a fact-finding process or 'fact interpretation process' or the factual analysis of asserted 'reasoning failure', as was argued here.
In Emerald Grain v. Agrocorp, the plaintiff asked the Federal Court to set aside an award under Article 34(2)(b)(ii) of the Model Law on the ground that the award conflicted with public policy in Australia.[42] Section 19 of the IAA clarifies that an award will conflict with public policy for the purpose of Article 34(2)(b)(ii) if a breach of the rules of natural justice occurred in the making of the award.
The parties fell into dispute over a delivery of canola. Agrocorp commenced and won at arbitration. Emerald sought to have the award set aside for a breach of the rules of natural justice. It argued there was no evidence of probative value before the tribunal to make the findings made ('no evidence rule') and the tribunal based its findings on its own opinions and ideas without giving Emerald adequate notice to argue its case ('no hearing rule').[43]
The applicant failed on both counts with Pagone J confirming that the court must be vigilant not to allow a party to run a merits review through the backdoor.[44] His Honour further confirmed that an arbitral award will not be viewed in the same way as a reasoned court decision, as a court's role to ensure compliance with the rules of natural justice is supervisory only - there is no expectation that an arbitral award must analyse every argument put before the tribunal and identify all facts by reference to the supporting evidence.[45]
Enforcing foreign arbitration awards in Australia
The IAA provides that a foreign award may be enforced in a court of a state or territory or in the Federal Court, as if the award were a judgment or order of those courts.[46] Further, an Australian court (either federal or state or territory) can only refuse to enforce an award in limited circumstances.[47] These largely mirror the grounds contained in Article V of the New York Convention.
Section 8(1) of the IAA provides that a foreign arbitral award is binding on the parties to the arbitration agreement in pursuance of which it is made.[48] Section 8(3A) further provides that a court may only refuse to enforce a foreign arbitral award where a ground to resist enforcement is proved under Section 8(5) or Section 8(7).[49] These grounds largely reflect those in Article V of the New York Convention and Article 36 of the Model Law (which, in the context of setting aside an award, are the same as those in Article 34 of the Model Law, set out above).
There have now been numerous cases concerning the grounds to refuse enforcement. The logic from these cases will be applied equally in the context of setting aside an award because the basis for challenging the enforcement of an award and setting an award aside have effectively been the same since 2011.
Third parties to the arbitration agreement
Under Article V of the New York Convention and Section 8(5) of the IAA, a court may refuse to enforce a foreign award if a party proves (inter alia), to the satisfaction of the court, that it was not able to present its case or the award did not deal with a difference falling within the submission to arbitrate.[50] These grounds were the focus of the Victorian Court of Appeal in IMC Aviation Solutions Pty Ltd v. Altain Khuder LLC,[51] a case concerning the enforceability of a foreign award against an Australian company who was not a party to the arbitration agreement. However, this case was ultimately decided by reference to an issue which was considered a precondition to determining whether one of the grounds in Article V of the New York Convention had been made out, namely whether the awarded debtor was a party 'to the arbitration agreement in pursuance of which it was made' (Section 8(1) of the IAA). The case also considered the onus of proof which the award creditor needed to satisfy in respect of this precondition.
The respondent was incorporated in Mongolia.[52] It entered into an operations management agreement (OMA) with IMC Mining Inc (IMCM), a company incorporated in the British Virgin Islands. IMCM executed a consulting agreement with a related Australian company, IMC Mining Solutions Pty Ltd (IMCS) to perform some of its obligations under the OMA.
Altain terminated the OMA and commenced an arbitration in Mongolia under the OMA. An arbitral tribunal awarded in excess of $6 million to Altain with IMCM (a party to the arbitration agreement and arbitration) and IMCS (a non-party to the arbitration agreement and arbitration) named as entities responsible to pay the award to Altain.
Altain successfully enforced the award against both companies in the Supreme Court of Victoria.[53] During the hearing IMCS, which was not a party to the arbitration agreement or arbitration, argued that before it needed to address whether enforcement should be refused under Article V of the New York Convention (being Section 8(5) and (7) of the IAA and Article 36 of the Model Law), the award creditor had to prove that it was a party to the arbitration agreement.
At first instance, the judge held that the onus of proving that there was a ground justifying a refusal to enforce rested with the award debtor.[54] This burden, he noted, was a 'heavy' one, particularly in light of the pro-enforcement and pro-arbitration environment the IAA and New York Convention exemplify.[55]
IMCS, which was not a party to the arbitration agreement or the arbitration, appealed. The other award debtor, IMCM, did not. One of the key grounds of appeal concerned the question of onus.[56] IMCS argued that the legal onus fell on the award creditor to prove that it was a party to the arbitration agreement. If this was not established then there was no entitlement to enforce and therefore it was unnecessary to consider whether any of the grounds for a refusal to enforce had been made out. Altain argued that once the award creditor had produced to the Court duly authenticated originals or certified copies of the award and arbitration agreement (a precondition to enforcement stipulated by Section 9 of the IAA, consistent with Article IV(1) of the New York Convention), the onus shifted to the award debtor.
The majority confirmed that the award creditor, in its capacity as the party invoking the court's jurisdiction, bears the evidential onus of satisfying the court, on a prima facie basis, that the court has jurisdiction to make the order to enforce the foreign arbitral award.[57] Once this is precondition met, the court may refuse to enforce an award where the award debtor proves a ground to support its claim.[58]
Further, there could be no prima facie proof that IMCS was a party to the arbitration agreement if, on the face of the arbitration agreement and award, the person against whom the award was made was not a party to the agreement.[59] This is consistent with the House of Lords decision in Dallah.[60]
In a dissenting judgment, the Chief Justice determined that Section 8(3A) circumscribes the defences open to an award debtor once the 'preliminary burden' has been met;[61] that is, the threshold question under Section 8(1). Her Honour was not persuaded by the overseas decisions on point (which supported the majority) and construed the IAA according to the strict rules of statutory interpretation to arrive at a different position.
While the court was split, the reasoning of the majority seems more appealing: it is based on similar approaches taken internationally, and consistent with the purposes of the IAA and international arbitration generally. It is therefore likely to be followed, or at least be persuasive, in future cases heard in the region.
The majority also made interesting findings in relation to onus. At first instance, Croft J held that the award debtor faces a heavy onus to prove that one of the grounds for refusing enforcement was made out.[62] The majority held that the reasoning was incorrect; in the absence of express words to the contrary, the appropriate onus is the balance of probabilities.[63] Croft J, their Honours held, unnecessarily imposed a higher burden than that required under these provisions.
Resisting enforcement on the grounds of public policy
As is addressed above, a party can apply to have an award set aside on the ground that it offends public policy under Article 34(2)(b)(ii) of the Model Law. In addition, Section 8(7)(b) of the IAA provides the same ground to resist enforcement of a foreign arbitral award. It is the equivalent to Article V(2)(b) of the New York Convention. While the exception under the New York Convention was only intended to apply in narrow and exceptional circumstances, unfortunately it has been applied in wider circumstances than expected in some jurisdictions.
To clarify the operation of the public policy exception in the IAA, the federal legislature inserted Section 8(7A) into the IAA. This section provides, non-exhaustively, that the enforcement of a foreign award is against public policy if the making of the award is induced or affected by fraud or corruption, or a breach of the rules of natural justice occurred in the making of the award. In 2014, the Full Federal Court in TCL Air Conditioner (Zhongshan) Co Ltd v. Castel Electronics Pty Ltd determined that, in the context of Article V of the New York Convention, Article 34 and Article 36 of the Model Law, and lastly, Section 8(7A) of the IAA, the public policy is very much restricted to fundamental issues of justice and morality.[64] This sets a high bar to relief and rests comfortably with the approach adopted in the leading United States decision of Parsons.[65] It has been, and will continue to be, a persuasive case for decisions that follow.[66]
* Andrew Stephenson is a partner and Lindsay Hogan is a senior associate at Corrs Chambers Westgarth.
[1] Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature 10 June 1958, 330 UNTS 3 (entered into force 7 June 1959) ('New York Convention').
[2] UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985).
[3] UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended by the United Nations Commission on International Trade Law on 7 July 2006) ('Model Law').
[4] International Arbitration Act 1974 (Cth).
[5] Commercial Arbitration Act 2010 (NSW); Commercial Arbitration (National Uniform Legislation) Act 2011 (NT); Commercial Arbitration Act 2013 (QLD); Commercial Arbitration Act 2011 (SA); Commercial Arbitration Act 2011 (TAS); Commercial Arbitration Act 2011 (VIC); Commercial Arbitration Act 2012 (WA).
[6] Meaning in this context, countries, and not to be confused with Australian states.
[7] L. Kratky Doré, 'Public Courts Versus Private Justice: It's Time to Let some Sun Shine in on Alternative Dispute Resolution' (2006) 81 Chicago-Kent Law Review 463, 468.
[8] Professor Dame H. Genn, 'Why the Privatisation of Civil Justice is a Rule of Law Issue', (36th F A Mann Lecture, Lincoln's Inn 19 November 2012), 10.
[9] J. Galatas, 'The Role and Attitude of the Courts in Australian in Relation to International Commercial Arbitration' (2005) 1 The International Construction Law Review 27, 47.
[10] (1995) 183 CLR 10. See also J. Galatas, 'The Role and Attitude of the Courts in Australian in Relation to International Commercial Arbitration' (2005) 1 The International Construction Law Review 27.
[11] J. Galatas, 'The Role and Attitude of the Courts in Australian in Relation to International Commercial Arbitration' (2005) 1 The International Construction Law Review 27, 49.
[12] J. Galatas, 'The Role and Attitude of the Courts in Australian in Relation to International Commercial Arbitration' (2005) 1 The International Construction Law Review 27, 49.
[13] Being agreements where the procedure of the arbitration is governed by the law of a convention country; the procedure of the arbitration is governed by a non-convention country and a party to that agreement is a person who, at the time of the arbitration agreement, was ordinarily resident in Australia; a party to the arbitration agreement is a convention country; or the parties to the arbitration agreement are ordinarily resident in a convention country (being a country other than Australia).
[14] [2007] 4 All ER 951 (Fiona Trust).
[15] See for example Allergan Pharmaceuticals Inc v. Bausch Lomb Inc [1985] FCA 507 and Hi-Fert Pty Ltd v. Kuikiang Maritime Carriers Inc (1998) 159 ALR 142.
[16] See for example, the decision of Gleeson CJ (subsequently Chief Justice of the High Court of Australia - the final court of appeal in Australia) in Francis Travel Marketing v. Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at [165]; Comandate Corp v. Pan Australian Shipping Pty Ltd (2006) 157 FCR 45 at [164]; Walter Rau Neussel Oelund Fett AG v. Cross Pacific Trading [2005] FCA 1102 at [41]-[42]; Global Partners Fund Ltd v. Babcock & Brown Ltd (in liq) [2010] NSWCA 196 at [60]-[65] per Spigelman CJ, Giles and Tobias JJA agreeing - interestingly, Spigelman CJ expressly referred to Fiona Trust at [63] in support of the liberal interpretation proposed in that case; Lipman Pty Ltd v. Emergency Services Superannuation Board [2011] NSWCA 163 at [6] to [8].
[17] See Paharpur Cooling Towers Ltd v. Paramount (WA) Ltd [2008] WASCA 110 at [39].
[18] [2012] NSWCA 95 (Rinehart).
[20] [116].
[21] [120] (references omitted).
[22] [6]-[8].
[24] [47].
[25] Siemens Ltd v. Origin Energy Uranquinty Power Pty Ltd (2011) 80 NSWLR 398.
[26] Building and Construction Industry (Security of Payment) Act 1999 (NSW).
[27] Commercial Arbitration Act 2010 (NSW).
[28] Trade Practices Act 1974 (Cth) Section 52.
[29] Bitannia Pty Ltd v. Parkline Constructions Pty Ltd (2006) 67 NSWLR 9.
[30] Australian Granites Ltd v. Eisenwerk Hensel Bayreuth Dipl.-ing Burkhardt GmbH [2001] 1 Qd R 461 (Eisenwerk).
[31] Cargill International SA v. Peabody Australia Mining Ltd (2010) 78 NSWLR 533.
[32] See for example Lightsource Technologies Australia Pty Ltd v. Pointsec Mobile Technologies AB (2011) 250 FLR 63.
[33] See for example Castel Electronics Pty Ltd v. TCL Air Conditioner Co Ltd (2012) 201 FCR 209 cf Rizhao Steel Holding Group v. Koolan Iron Ore (2012) 43 WAR 91.
[34] Civil Law and Justice Legislation Amendment Act 2015 (Cth).
[35] Established in Pioneering Shipping Ltd v. BTP Tioxide, the Nema [1981] 2 All ER 1030.
[36] See Section 34A.
[37] Model Law Article 34(1)-(2).
[38] TCL Air Conditioner (Zhongshan) Co Ltd v. Castel Electronics Pty Ltd (2014) 232 FCR 361.
[39] [54].
[40] [54].
[41] [55].
[42] Emerald Grain Australia Pty Ltd v. Agrocorp International Pte Ltd (2014) 314 ALR 299.
[43] [5].
[44] [10].
[45] [16].
[46] International Arbitration Act 1974 (Cth) Section 8(2)-(3).
[47] International Arbitration Act 1974 (Cth) Sections 8(3A), 8(5), 8(7).
[48] International Arbitration Act 1974 (Cth) Section 8(1).
[49] International Arbitration Act 1974 (Cth) Section 8(3A).
[50] An equivalent ground is contained in Article 36(1)(a)(iii) of the Model Law.
[52] The facts are set out in the joint judgment of Hansen JA and Kyrou AJA at [79]-[115].
[53] Altain Khuder LLC v. IMC Mining Inc (2011) 276 ALR 733.
[54] [60]-[61] (at first instance).
[55] [61]-[62], [88] (at first instance).
[56] [125].
[57] [134].
[58] [134].
[59] [138].
[60] Dallah Real Estate and Tourism Holding Company v. Ministry of Religious Affairs of the Government of Pakistan [2011] 1 AC 763.
[61] [40].
[62] [61]-[62], [88] (at first instance).
[63] [192].
[65] Parsons & Whittemore Overseas Co Inc v. Societe Generale de l'Industrie du Papier (RAKTA) 508 F 2d 969 (2d Cir 1974).
[66] See for example Sauber Motorsport AG v. Giedo Van Der Garde BV and Others (2015) 317 ALR 786.


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subset: commoncrawl


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On Thursday May 10th, Raising Cane's Chicken Fingers, in Highlands Ranch Colorado at 1108 Corporal Max Donahue Lane, will be donating 15% of all sales, from 4-10PM, to Quiet Grace Mission. All you have to do is mention us, and the fundraiser, when you go to eat there and they will use your sale to go toward the fundraiser.
100% of what we raise will go to the family of Presley Mae (pictured above). She is a little warrior and is battling SMA, Spinal Muscular Atrophy. Her family needs as much love and support as we can give so please spread the word. If you can't go to the fundraiser, please donate whatever you can via their GoFundMe page here -
You can also read more about the specifics of what Presley has to go through just to do simple things you and I might take for granted. I know we all see things, almost daily, we'd like to donate to and that it can be overwhelming. This is a chance to make a real difference for a little girl who doesn't have a choice in what she is facing.
Thank you to everyone for the support and please SHARE this far and wide! Keep Presley, and her family, in your daily prayers!
God's Grace- Pastor Rob
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January 2020


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Ms. JD Celebrates: Bobbi Liebenberg, Former Chair of the ABA Commission on Women in the Profession
By Ms. JD Editor • March 09, 2012•Features
Editor's Note: This post by Bobbi Liebenberg is part of our birthday celebration! Bobbi was the President of the ABA Commission on Women in the Profession when we co-founded the Ms. JD Fellowship. To support programs like the fellowship, give Ms. JD a birthday present! Just click here.
Ms. JD is now a precocious six year old, and I am delighted to join in the celebration of its founding. It has already established itself as one of the leading national organizations for women law students and young women lawyers. Its blog and Library are "go-to" resources, and its national conferences, scholarship and Network have provided invaluable assistance and guidance to countless young women as they begin their journey on a legal career.
During my three-year tenure as Chair of the ABA Commission on Women in the Profession, one of our initiatives of which I am the most proud is the creation of the Ms. JD Fellowship Program. The Commission partnered with Ms. JD to identify 20 very talented and promising third year women law students from around the country who had already demonstrated a strong commitment to gender equality. The unique Fellowship Program provides for a year long, one-on-one mentorship of each of the law student Fellows by women who have received the Commission's highest honor, the prestigious Margaret Brent Award, or who have served on the Commission. It was envisioned that mentoring by these distinguished trailblazers would inspire the Fellows to likewise blaze new trails of their own and become future leaders of the profession. Over the past two years, the Commission mentors have provided sage career advice and have opened many doors for their Fellowship mentees. I am confident that this program, now entering its third year, will continue to thrive and create a pipeline of young women lawyers who will not only achieve success for themselves, but will also help other women in the profession to advance and ultimately change the face of the profession.
I look forward to collaborating with Ms. JD on many future programs and initiatives in furtherance of our shared goal of achieving true equality for women in the legal profession, the justice system and society at large. Once again, congratulations Ms. JD!
Roberta D. Liebenberg, Partner
Former Chair, ABA Commission on Women in the Profession
Fine Kaplan and Black
1835 Market Street, Suite 2800
Philadelphia, PA 19103
1 Comments
Bobbi may remember meeting me at the ABA Commission on Women Conference in Philadelphia. I am the author of the Best Friends at the Bar book series for young women lawyers and law students. I applaud all of the work that Bobbi has done with the ABA and with Ms. JD. I am proud that my law alma mater, GULC, was a founding member. The work is so important, and I am glad to be joining Ms. JD as a panelist at the national conference in October 2012.
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The Force Priestesses, also known as the Five Priestesses, were a group of mysterious Force-sensitives who held the secret to immortality.
During the Clone Wars, Jedi Master Yoda encountered the Force Priestesses on a planet in the heart of the galaxy, where they put him through a series of trials. The Priestesses represented serenity, joy, anger, confusion, and sadness, respectively, and nothing was found behind their white masks.
The Priestesses existed in a state between the living Force and the cosmic Force, and they could manifest themselves before the living at will.
The trials they put Yoda through forced him to face the personification of his hubris, resist great temptation, and finally, travel to Korriban, the homeworld of the Sith, to pass the ultimate test, which was beyond the Priestesses' control.
When Yoda's trials were complete, the Priestesses deemed the Jedi Master able to retain his identity after death.
Behind the scenesEdit
The Five Priestesses first appeared in the Star Wars: The Clone Wars television series' sixth season.
- Star Wars: The Clone Wars – "Destiny" (First appearance)
- Star Wars: The Clone Wars – "Sacrifice"
- "Launch Pad"—Star Wars Insider 148 (First mentioned) (As Five Priestesses)
- "Destiny" - The Clone Wars Episode Guide on StarWars.com (backup link)
- "Sacrifice" Episode Guide - The Clone Wars on StarWars.com (backup link)
- Force planet in the Encyclopedia (content now obsolete; backup link)
- Moraband in the Encyclopedia (content now obsolete; backup link) (First identified as Force Priestesses)


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These Memes Perfectly Describe The Struggle For UL Students Who Have School During Cold Weather
No matter how cold or severe the weather may be, UL rarely shuts down it's campus—and these memes perfectly describe the struggle for students.
We will continue to add more memes as more rainy, snowy, wintery, etc. days fail to stall operations on campus at the University of Louisiana at Lafayette. Feel free to submit your own, and share these with all your fellow students and friends that attend UL.
If they have class, they at least deserve to have a good laugh about it—right?
Feel free to send us your memes on our official Twitter @1079isHot.


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The Rapid City Council is considering a five-year utility rate plan which may result in higher water bills for Rapid City residents next year. According to KOTA News, a recent water and water reclamation utility rate study found that although Rapid City water is safe, the cost of maintaining the high quality of the water has become expensive.
The city council will discuss the utility rate plan at its October 16 meeting and may vote on the plan on November 6.
To read more news about Rapid City, visit the Black Hills Knowledge Network's online news archive or community profile.


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The Financial District in New York, more popularly known as FiDi, is home to the most iconic panoramas. The New York skyline and its familiar distance to the sea have been featured in TV shows and movies for decades. FiDi is also the birthplace of the city itself. Here are some of the reasons why many New Yorkers call Fidi home.
World-Class Architecture
The financial district is home to some of the most interesting turn-of-the-century architecture in the United States. From the classical old-world buildings of Wall Street to the modern imposing glass of the One World Observatory, it is the perfect combination of contrast that takes people's breath away. The architecture of FiDi is what gives the neighborhood a style unique to New York.
High-End Luxury Service
FiDi condos in New York are equipped with luxury, high-end services that are expected of its location. State-of-the-art gyms, resident lounges, valets, roof decks with barbecues, children playrooms and so much more fill-out these high-rises, and residents have access to a hotel-like concierge who can assist them with all their needs.
The Heartbeat of New York
Residents living in the financial district find that to be at the city center means to live in the city center. Easy access to world-renowned landmarks, bridges, piers, parks and pizza joints make owning a condo in Fidi an unforgettable New York experience.
Visit the historic Broad Exchange Building in New York City at the heart of Manhattan's exciting financial district. Schedule a tour or call (646) 585-1262 today!


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The World of Legal Services is Changing
LegalShield offers individuals, families and businesses access to lawyers that allow them to get the legal help they need for a small monthly fee they can afford. Our company has been around for over 47 years and has over 4.5 million individual and business members.
We are committed to making certain our members get the legal help they need, so we partner with quality attorneys that can serve our members when we cannot.
There is zero revenue split or commission. There is no marketing fee. As such, this opportunity is completely legitimate and legal. We want to send you case referrals. For free.
How It Works
Do a great job for your new clients and you'll continue to get more referrals.
It really is that simple.
Take 10 minutes to fill out our online
Get approved within a few days.
Get free referrals.
What Our Current Lawyers Are Saying
Practicing law, as we all know is a difficult profession. My relationship with my Ohio provider firm has been extremely beneficial both financially and professionally. It has been a pleasure to be a LegalShield referral attorney, not only will I continue in that role, but I would strongly encourage any attorneys looking to advance their practice to consider coming on board.
Frequently Asked Questions
What are the requirements to join the network?
Have at least two years of experience as a licensed lawyer.
Have current, certified malpractice insurance.
Have no disciplinary actions against you.
Is there a fee split, revenue share, referral fee or marketing fee?
No. See next question for more information.
How much does it cost to be part of the network?
There is no fee to join. There is no fee to maintain your membership. There is no commission or revenue split.
We need to help our members and we're happy to connect them to reputable lawyers when we can't help them directly.
All of our legal plans include a 25% discount off standard hourly rates. When you apply, you let us know your standard hourly rates and then offer referred members the same 25% discount we do.
How many referrals will I get?
LegalShield serves members across the entire US and all Canadian provinces and territories. We have thousands of cases come in every single day. However, as you can imagine, we don't know exactly when cases that need to be referred out will come in or how many there will be in any particular location or area of law.
It's impossible to say how many case referrals you will get. We can't make any specific promises.
Is there anything I can do to increase the number of referrals I receive?
Like any referral relationship, if you stay in contact and do great work when we send you cases, you're more likely to be top of mind next time something pops up that fits your area.
What type of cases will be offered to me?
When you join the LegalShield referral network, you will provide information about the nature of your practice, areas of expertise, average fees, etc. We will refer only cases that match your desired client profile.
Is this legal in my jurisdiction?
Yes. You may have read articles about situations that sound similar and how they violated revenue sharing rules or were otherwise illegal.
As mentioned, there is no money changing hands. We are simply referring clients to you that we can't help. If you engage with any referral we send, it's no different than a person contacting you because their friend recommended you.
Do I have to take the cases you refer to me?
No. You can refuse any referral, for any reason. Out of town? Fine. Not a fit for your skills? Fine. Client load maxing you out that month? Fine.
You are under no obligation to accept any referral and there will be no hard feelings. We understand not everything is a fit and we'll try you again next time.
How are conflicts handled?
Before accepting a case, you should screen for conflicts. If a conflict arises during representation, the matter can be referred to someone else.
Does LegalShield interfere with my independent professional judgment while representing a client?
No. If you accept a referral from LegalShield, you work with the client just like you work with any of your other clients.
How do I make arrangements to represent a client?
You form the lawyer client relationship on your terms, the same as you always do. You can require an in-office conference, a written fee agreement or an up front retainer. Whatever the situation merits, in your opinion, is fine.
How do the referrals come to me?
We conduct initial consultations to determine if there is a real legal need. If there is a need for a lawyer and we can't help directly, we'll contact you by email or phone to discuss the case and forward any documents we may have collected. We can contact you directly, another lawyer at your firm, an administrator you assign or whomever you deem best equipped to field referrals.
Will LegalShield judge my performance?
Since client satisfaction is paramount, LegalShield will survey members referred to you regarding their experience and share the feedback with you. LegalShield intends for this feedback to be constructive and to make your practice stronger.


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Former Big Brother house guest Judd Daughtery and I are back with week 2 recaps for Big Brother 18! 2 weeks down, and another newbie voted out! Bye Jozea! However, there are some twists to this years show that might make things even more interesting. We dive into this past week, and Judd gives an in house view on what's going down. We've included predictions for the coming week, and once again we don't see eye to eye. What should Judd and I wager? Our week 3 recap should include another former Big Brother house guest!


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Step inside Whisky House Vision, one of The Scotch Malt Whisky Society's 12 partner bars in Japan
Whisky House Vision has been delighting Tokyo's single malt enthusiasts for the past 24 years. Unfiltered spoke to owner Nobuhide Kobayashi and bar manager Wataru Kobayashi to find out more about this suburban gem and their passion for whisky.
What's your background in whisky and how did the concept for Whisky House Vision come about?
NK: While I was still a teenager I started working as a barman and by the time I turned 20, I opened this whisky bar. This year will be its 24th year. When I started out, Tokyo's malt whisky culture was just on the start line, especially if you were out in the suburbs. At that time there were only about 10 bars that had a selection of more than 100 whiskies. I was struggling a little with how to demonstrate whisky's culture to our customers, but affordability and accessibility are key, and I haven't changed the concept since then. It's no more than 1,000 yen (£6.90) per glass, even for a rare whisky. Through this approach, our bar gained the trust from our customers that we offer whisky for a reasonable price and this has allowed us to last for 24 years – and hopefully for many more years to come.
Where does your passion for whisky come from?
NK: When I opened Whisky House Vision, "whisky" was just seen as a blended spirit but, from my point of view, I thought that single malt was the drink where everyone could more easily understand the differences in character between the whiskies, and I thought that the costumers would love that. The simple truth is I enjoy turning people into fans of whisky.
WK: I always think about how customers can learn to enjoy whisky, that's my main passion as a bartender.
Tell us about the design and layout
NK: We've been in the same building for 24 years and our concept of "whisky is the design" hasn't changed. Now there are 700 bottles surrounding us, and whisky lovers tell us they love this space.
What about your whisky collection?
NK: When I opened this bar it was the 90s and at that time most of the whiskies we had had been distilled in the 80s. At that time, the whisky quality wasn't so good but as time passed, the quality of the whisky changed. So by our 10th year in business we stopped selecting what we would call "old bottles". Also, once you open a bottle the quality starts to deteriorate. So we have a rule to offer only bottles that we opened this year. This is a small, modest rule, but for us it's really important.
How many SMWS bottlings do you generally have?
WK: When we became the Society's partner bar, we started with 48 bottles, and now we have about 100. Sticking to our rule of offering only whisky from a bottle we opened this year, we always have new bottles on our shelf.
What does being an SMWS partner bar mean to you?
WK: Becoming a partner bar gave a positive impression to our regular customers and at the same time it was a great opportunity to introduce the SMWS to those who didn't know about it. The Society's system of flavour profiles is easy to understand and helps to introduce customers to the SMWS.
What kind of reaction do you get to the SMWS bottlings?
NK: The SMWS has been bottling whisky at cask strength, unfiltered, and without adding any spirit caramel for the last 35 years. Now other bottlers are following in the Society's footsteps and doing the same thing. But a good product has to be a natural thing. Please continue to release high quality product for whisky fans!
WK: I have the impression that SMWS bottles are for young people who are just starting to drink whisky. The code, title, and also the unique palate and nose that differs from a distillery's official bottlings make it especially fun and interesting.
How's the overall whisky scene in Tokyo right now?
WK: These days, there are lots of whisky events in Tokyo, so there are plenty of opportunities to try different whiskies. Our bar has a limited price per glass so lots of young people come and they really enjoy the variations of SMWS.
NK: If I compare things with the old days, there has been in increase in the number of drinkers with whisky knowledge. This clearly isn't a bad thing but, because of the increase in knowledge, it's making for a shortage of malt and it's becoming harder to find. So now I want emphasis the culture and style of drinking. When it comes to this, the SMWS flavour profiles and inspiration from the bottle name reminds me about the 'old days'. I want to pursue that way of 'cool' drinking.
Finally, what makes your bar a special place for whisky lovers?
WK: As a specialty bar, we have a wide enough range of bottlings to be able to satisfy any customer's wishes. Moreover, we're the place to come to find out more information about whatever whisky you end up choosing.
Whisky House Vision is at 1-11-8 Kayojojimamoto-cho, Musashino-shi 180-0004 Yaeuma, Tokyo, Japan. Tel: + 81 422 20 2023. See https://atcf.jp/vision
Whisky House Vision is one of 12 SMWS partner bars in Japan and more than 100 around the world where members can are guaranteed a warm welcome and often a discounted price on SMWS drams by producing your membership card. For more information, visit www.smws.com/about/venues


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I am very active in my LINKEDIN account. I just published my latest medical article there and want to share it here:
Cyclist Frenchman Robert Marchand set a new world record when he cycled 22.547 kilometers (about 14 miles) in an hour — at the age of 105. "I am not here to be champion. I am here to prove that at 105 years old you can still ride a bike," Marchand said.
Longevity is associated to genetic factors, but a healthy attitude and lifestyle contribute greatly to your lifespan.
"The most difficult problem is to get enough old people, especially those aged 100 or more, to take part in such a study. Interestingly, the genetic effects are much more evident in 100-year-olds than in 95-year-olds", notes the first author of the report, Dr. Friederike Flachsbart of the Institute of Clinical Molecular Biology at Kiel University.
A research group in the Faculty of Medicine at the Christian-Albrechts-University in Kiel (CAU) has now confirmed this assumption by comparing DNA samples taken from 388 German centenarians with those from 731 younger people.


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The ideas listed below challenge everyone -- members of the community, teachers, HIV/AIDS educators and members of the faith, business, and health communities -- to use their creativity to inform themselves and their peers about the AIDS epidemic.
In addition, the Centers for Disease Control and Prevention (CDC) has identified numerous programs that work -- HIV/AIDS-related programs that have been proven statistically to work. For information on HIV/AIDS-related programs, call CDC's Division of Adolescent and School Health (DASH) at (770) 488-3168. Information on DASH can be found at www.cdc.gov/nccdphp/dash/.
In the Community
Work with state and local health departments to involve your community in HIV/AIDS awareness.
- Develop workshops for parents on the role they play in shaping their children's behavior.
- Organize community panels about sensitive and taboo issues and develop materials to help facilitate discussions in these settings.
- Find out what social and cultural norms increase vulnerability to HIV in your community (e.g. social pressure for boys to have sex early).
- Use the sample proclamation and officially declare World AIDS Day in your community.
- Observe a "Day Without Art," to signify the loss of artists to AIDS and to increase awareness of AIDS.
- Organize an HIV/AIDS fund-raising walk or run.
- Distribute HIV/AIDS Fact Sheets and red ribbons to the community to wear on World AIDS Day.
- Hold a toy or food drive to help children affected by HIV/AIDS.
- Contact a local book store to co-sponsor an event.
- Ask Congress to increase HIV/AIDS funding.
- Decorate Christmas trees with red ribbons and tags with the names of community residents who have died of AIDS.
- Organize musical performances and educational seminars for all age groups.
- Contact The NAMES Project and bring panels from The AIDS Memorial Quilt to your community, (415) 882-5500.
- Set up a special display of books and resource materials about HIV/AIDS at your local library.
- Volunteer or make a donation to an AIDS program.
In the Classroom
The classroom provides numerous opportunities to educate students about HIV/AIDS.
- Place a question box in classrooms where students can ask anonymous questions that will be answered by teachers at appropriate times.
- Start a peer education program where students can educate other students about HIV/AIDS.
- Invite a young adult with HIV or a health practitioner who works with HIV as a guest speaker.
- Train young people as peer educators on life skills, sexual health, and AIDS education.
- Encourage teachers to assign homework for children to interview their parents and relatives on the topic of HIV/AIDS.
- Develop a pen-pal exchange for children and young people infected and affected by HIV/AIDS in different cities and countries.
- Show videos in which other teens talk about their personal experiences with HIV/AIDS. [See "HIV/AIDS Education Videos."]
- Distribute information on HIV testing and prevention. [See "Factsheets."]
- Distribute "Myth Versus Reality" and "HIV/AIDS Quiz" from this book.
- Create tabletop displays with World AIDS Day messages and place them in cafeterias and dining halls.
- Write an article or letter to the editor of the school paper; include statistics about the prevalence of HIV and AIDS in your school or community.
- Encourage students to work with younger students in local middle and elementary schools to challenge social norms that put them at risk for HIV.
- Organize discussions about sensitive and taboo issues; develop materials to facilitate discussions.
- Use cross-curriculum planning to incorporate HIV/AIDS materials into courses.
* Show films or hold a film festival/discussion about films dealing with HIV/AIDS, such as the following:
- Jeffrey (R)
- The Cure (PG-13)
- It's My Party (R)
- Roommates (NR)
- Fotos del Alma (NR)
- Playing by Heart (R)
- Longtime Companion (R)
- Kids (R)
- Boys on the Side (R)
- Common Threads (NR)
- Philadelphia (PG-13)
- A Mother's Prayer (PG-13)
- Love! Valour! Compassion! (R)
- Bloodbrothers, The Joey DiPaolo Story (NR)
- Silverlake Life: The View from Here (NR)
Colleges and Universities
There are many ways to be involved with HIV/AIDS programs on your college campus.
- Invite a local HIV testing center/clinic to your campus on December 1 or ask the campus student health center to test at no charge for the day. Contact the National Association of People with AIDS at (202) 898-0414.
- Coordinate with popular restaurants to give out free condoms; pass out literature focusing on the high correlation between HIV transmission and alcohol consumption.
- Have free condoms available in bathrooms.
- Organize HIV/AIDS workshops with student educators in an informal setting such as a student center or residence hall lounge. Distribute information on HIV testing and prevention. [See Fact Sheets in this booklet.]
- Co-host seminars with medical and/or law schools.
At Work
At work, launch a Business Responds to AIDS program or a Labor Responds to AIDS program. [Contact CDC's National Prevention Information Network, (800) 458-5231, or the National AIDS Fund Workplace Resource Center, (202) 408-4848.]
- Establish December 1 as a day to address issues of HIV/AIDS at your workplace.
- Educate employees on the protection of people with HIV/AIDS and on non-discrimination laws.
- Insert World AIDS Day messages with bills or paychecks and print on packaging materials..
- Form a team to raise money for a local AIDS Walk.
- Plan a training session on HIV/AIDS discrimination.
In Faith Communities
In your faith community, encourage a long-term commitment to HIV/AIDS.
- Present the "Interfaith Declaration" to your church council. Propose that your church community make a similar declaration.
- Participate in or establish a collaboration with interfaith observances of World AIDS Day in your community.
- Hold a candlelight service of remembrance for those affected by HIV/AIDS; contact your local AIDS ministry program and coordinate with them.
- Join with other congregations and ring your steeple bell 20 times at 2:00 pm on December 1 to signify the 20 years of the epidemic. [For more details, contact the Council of Religious AIDS Networks at firstname.lastname@example.com.]
- Check the partial listing of national interfaith contacts in "Faith Communities and HIV/AIDS" for materials and ideas for collaborations.
- Encourage your religious leaders to speak about HIV/AIDS in sermons, and invite an individual living with HIV/AIDS to share his or her story.
- Have your youth group volunteer at an HIV/AIDS program or clinic.
- Observe a moment of silence during services for those who have died of AIDS.
- Contact the national office of your religious affiliation or organization to ask for information regarding HIV/AIDS programs and policies.
- Start an AIDS ministry within your congregation or with others in your community.
- Start a service program. Members of your congregation can work with a local AIDS group to provide meals, transportation, shelter, companionship or other services to people living with HIV/AIDS.
- Ask associations of people living with HIV/AIDS to talk with young people about their experience with HIV.
For more suggestions, see "HIV/AIDS Education Videos."
In Government
Governments should participate in World AIDS Day. Effective HIV prevention programs can benefit from high-level political commitment.
- Provide your community with statistics on HIV infection rates in your area, and use these numbers as a call to action. (Contact your health department.)
- Hold meetings with district leaders to brief them on the World AIDS Day theme, I Care . . . Do You? Youth and AIDS in the 21st Century.
- Sponsor a World AIDS Day information session to discuss HIV prevention, education and treatment needs in your community. Personally invite student groups and various community organizations.
- Develop policies that address unmet needs, especially those of traditionally underserved populations, including African Americans, Hispanic/Latinos, Native Americans, young people, men who have sex with men, injection drug users, rural communities, women, the homeless and the incarcerated.
- Adopt a proclamation (see "Sample Proclamation") urging citizens to take part in World AIDS Day activities and observances.
- Encourage your communities to join the White House in dimming their lights as a visual demonstration expressing national and worldwide commitment to stop the spread of HIV/AIDS. For details, check the White House Office of National AIDS Policy's Web site www.whitehouse.gov/onap.
- Prepare a press package describing World AIDS Day events locally and in your state.
- Invite speakers to your State Capitol or City Building to speak on HIV/AIDS.
- Advocate for local, state and national policies that promote the rights of all people who are living with, affected or orphaned by HIV/AIDS.
In Health Care Settings
In health care settings, the campaign against HIV/AIDS should continue not only on World AIDS Day, but throughout the entire year.
- Organize training sessions with employees and health professionals on such topics as dealing with AIDS issues and communicating with patients.
- Distribute free condoms to patients making office visits.
- Develop a questionnaire for an HIV risk history.
- Copy, display and distribute reading material and Fact Sheets about AIDS in the office regularly.
- Offer routine HIV prevention counseling and free testing services on World AIDS Day.
- Organize workshops and assemblies on HIV/AIDS at local schools to educate students and teachers.
- Contact AIDS service organizations serving various ethnic and racial groups and ask that they make a presentation to your staff regarding cultural competence and sensitivity about HIV.
- Mobilize the communication department in your institution to develop World AIDS Day messages to be distributed throughout the institution and surrounding communities.
- Encourage local health centers to set aside special times to provide health services to young people.
- Have trained peer counselors serve as links between young clients and health care personnel.
- Design a specific area where patients can confidentially obtain condoms and information about HIV and other STDs.
- Play an HIV/AIDS educational video in your waiting room.


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The following article, written by Nate Todd, appears on axs.com.
Last summer, fall and into 2017, a series of earthquakes devastated Central Italy. To help with the restoration efforts, a benefit concert has been announced for Aug. 20 — almost a year to the day from when the first and most deadly earthquake struck — at the picturesque Sferisterio di Macerata open-air stadium, and the organizers have enlisted the help of some serious star power. As Pitchfork reported, Thom Yorke and Jonny Greenwood of Radiohead will be performing as a duo for the benefit. Radiohead are currently on tour in support of their latest album, A Moon Shaped Pool.
Read more at axs.com.
Like us on Facebook to receive more sports, entertainment and food & wine news.


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Another crazy/adorable house from New Zealand!
God love 'em down there with their summer Christmas, multitudinous sheep, and Middle Earth stuff.
The "Boot House" is actually rented out as a couples' vacation getaway so you can give your sweetie "the boot" for an anniversary gift. 🙂
But who wouldn't be thrilled to spend a night in this amazing creation?
Hosts Judy & Steve offer their Boot House in the Tasman region of New Zealand as a "luxury retreat" for romantic weekends.
Judy & Steve Richards
Steve designed and built the Boot himself in 2001 as a guest house. It has been charming visitors ever since.
Have a look inside….
The interior feels almost southwestern with the warm adobe finish, curving walls and kiva fireplace.
The Boot has one bedroom and one bathroom:
Breakfast is delivered in the morning right to the door!
Wondering what is behind the "sole" wall outside the shoe?
A garden patio with a chiminea fireplace!
Isn't it clever?
If you are planning a trip to New Zealand's Tasman Bay area on the South Island, rates for a cozy night in the Boot House start at $230.
Check out the The Boot's website for all the details.


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Friday, 3 April 2015
Thomas Wines Sweetwater Shiraz 2013
I reckon Andrew Thomas could charge double and still get it. This is class at a neat price.
Gentle peppery spice and very attractive purple flower florals. Buckets of juicy red berry fruit wrapped by savoury tones. Hunter earth ringing true.
Every time I go back those purple flower and powerful violet aromas create a sense of uplift and vibrance. The finish is long and laced with a dusting of spice before some dark plums bump in to tease before moving to dried herbs.
Still a little tight with its best years ahead. Give it another year or two when it will slip on its party suit. A wine which will easily kick on for 10 years.
Generous. Luscious. Delicious.
Region: Hunter Valley
Source: Sample
Follow me @Qwine
Subscribe to: Post Comments (Atom)


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Rutschblock Cord
- Item #GGG0016
- Length
- 18 ft 10 in
- Recommended Use
- backcountry touring
- Manufacturer Warranty
- 1 year limited
Tech Specs
What do you think about this product?
January 29, 2019
Wire tangles and too short
- Familiarity:
- I've used it several times
I got this hoping that it would work for cornice cuts. First off, for any application, it's a pain to work with. The wire holds a ton of memory and it gets tangled very easily. Secondly, despite the description, it's far too short for safe cornice cutting. Oh, and for what it is, it's a bit heavy. Thumbs down.
Patrick Fink
December 7, 2018
Be Prepared in the Backcountry
- Familiarity:
- I've used it several times
This is a vital tool for separating the backside of your snow columns and performing accurate ECT in your pits. Very simple and straight forward, and you get the high quality that G3 is known for in the avalanche community. When it comes to being safe in the backcountry, you may as well have all the tools at your disposal to make safe, responsible decisions. Get a buddy, dig a pit, isolate your columns with this Rutschblock Cord, and be safe and smart! Have fun too while you're at it.
Jimmy Moore
September 26, 2018
Easy Peasy Lemon Squeazy!
- Familiarity:
- I've used it once or twice and have initial impressions
Finally, I don't have to just use cordelette to make my test blocks. I personally haven't had a chance to use mine yet (turns out doing avalanche tests on dry grass doesn't work too well) but I have used this before, and it's beyond helpful! The only downside is that this cord tends to get tangled in its pouch, but that's really just a nitpick. If you want to do some full Rutschblock testing, pick this up for sure!
Zak Ricklefs
March 30, 2016
Durable & Light
This cord works great and is easy to use for cutting blocks or cornices. It's also light and seems well constructed. It's a great addition to my backcountry kit.
Than Volk
March 2, 2016
Awesome tool
- Familiarity:
- I've used it several times
Have used it for half a season, great addition.
April 1, 2014
Cool Addition
- Familiarity:
- I've put it through the wringer
Great cord - super durable and gets the job done. I gave mine to a friend and resumed using 4 mm cord with small knots in it. I like cord because it compacts down small and doesn't wreck my carbon probe. Don't get me wrong, this item is great, it's just not necessary for me.
Mike Cushing
January 3, 2012
Stability tests...
Works great for stability tests.... Solid durable tool.
Mike Traslin
March 21, 2011
Worth the coin!
I mainly got this for cornice bombs, and it does that job with ease, but I also use it for block testing. It cuts through layers of crud and ice with minimal effort. I decided to do a little modification to the crimped copper stoppers that hold the coils in place. I took a small jewelers file and rounded the edges so the cord would be less harsh on my probe. I didn't mind doing this as the coils are what cuts the ice and snow and as I said above it still does that with ease. It come with a nice clip to keep the cord coiled and the bad can be filled with snow to give it some swing weight. A great tool for you back country kit!
Sean Mumm
January 5, 2010
Cool Tool
I haven't had a chance to use this yet, so I may need to update once I have. I got a couple of these for stocking stuffers, and they look to be well made and helpful for cutting through harder layers of snow. G3 has put together a nice, lightweight package with this Rutschblock Cord and stuff sack. It looks like it will get the job done. I'll be glad to keep one in my pack and try to get myself to do stability tests more often.
Merebea Danforth
December 7, 2009
Useful cord
Useful cord, does a great job sawing through cornices and getting the job done. Does what it is meant to do, however if you are doing a rutschblock test, you really need 2 people and 2 probes to get this cord to cut correctly. Great and strong, no problems where I've had a p-cord break before.
Brian Muller
vince coleman
September 21, 2010
I would hope if your in the back-country, looking to get some turns, You would actually be with at least 1 other person.
October 12, 2009
Works better than rope
Since I ski in the Southwest, we get a lot of wind/sun crusts and the knotted rope just failed when sawing through these layers....This thing put an end to that. I've seen reviews knocking the cord because of damage to poles...and I can see that this would be the case if you are using carbon fiber poles in conjunction with this cord to carve out a block....but since I use aluminum poles...no problem. The only complaint I have is that it tangles easily given it's permanent storage inside the provided sack....the sack forces you to coil the cord rather tightly and it can be a pain to undo any tangles. I would suggest storing it in bigger loops somewhere inside your pack rather than the sack it comes with...this will make it easier to handle.
James Foulks
February 4, 2009
G3 cord VS knoted rope
The G3 cord works fine if you know how to use it properly. Either your poles were cheap and or they were damaged& ready to break. Previously I carried a nylon cord that had knots, it works just fine in snow with soft layers- almost every season ends up with buried ice layers though. If theres been rain or a sun crust formed and got buried which is usaully the case, the nylon cord sucks- good luck getting through ice with a knoted cord!
John E.
January 28, 2009
The very first Rutschblock I tried this on, the cord broke. It also broke a probe pole and messed up another one. I then switched to my nylon cord with knots tied in it, and it worked much better. So save your money and use 4 mil nylon cord with knots tied about every 8 inches. Then put a loop in both ends and you are ready to go.
Greg Wiggins
September 16, 2008
G3 Rutschblock Cord - simple and effective
I bought this for a friend as a birthday present. He loves it as it's really easy to use and light. Another piece of back country gear that you must have.
Richie Olivier
December 31, 2007
Cool Cord
Works great but doesn't coil back up the way it came, which is ok 'cause it needs to be straighter to work anyway.
Uncle Ben
December 19, 2006
Save your money
This cord failed at one of the loop ends the first time I used it. Also it trashed both probes - one probe was carbon fiber & it got shredded and snapped due to the damage. Save your money and buy a 4mm cord & put knots every half meter! This is what the guides use & b/c this option is more versatile, cheaper & it won't damage your probes.
James Keevel
July 26, 2005
Rutschblock Cord
This is a fun tool to use in avalanche awareness. I brought mine to use for a class and my teacher liked it so much, I purchased one for him too. Fun snow toys that will help save you from avalanches!
Patty Shenk
February 23, 2011
brown noser!
April 28, 2005
Rutschblock Cord
This is a great fun tool for backcountry. I climb and really need to know the snowpack of the area I am going into. This is a great tool for me to see how much it will take to avalanche an area. That way I can decide if this slope is good or not to traverse. It gives me options to be safe in the backcountry. I purchased my cord a couple of years ago and my mountaineering guide liked it so much, I purchased this one for him as a present.
Patty Shenk
March 18, 2004
Fast Rutschblock method
Using this cord simplifies cutting out Rutschblocks. The only stipulation is that two people in your group have probes to put in the back corners of the Rutschblock. While everyone has shovels, transceivers, not everyone carries a probe, which makes using this cord tough. So consider who you'll be skiing with and whether they carry a probe. Also the cord produced slight wear on my probe when I used it...It was mostly comestic.
July 16, 2003
Useful Snow Study Accessory
Not exactly an essential item, but if you have an extra $19 and want to encourage yourself to do more stability tests, then it's a good purchase.
Jonathan S. Shefftz


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RTE's List of the Greatest Irish Overlooks Mna Na hEireann
Byline: Warren Swords
IT is meant to be the search for our greatest ever citizen, but RTE television's historical series appears to have overlooked the contribution of women, with only three females making the longlist of 40 candidates. While popstar mentors, footballers and crooners are represented in thei rdroves, women make up less than 8pc of the top 40.
And so despite being acclaimed as some of the greatest Irish figures in history, regardless of sex, there is no room on the list for Countess Markievicz, Maud Gonne, Grainne O'Malley or Lady Gregory.
Instead, the public are being asked to choose the greatest Irish figure of all time from a list that ranges from Charles Haughey to Louis Walsh and from Daniel O'Connell to Daniel O'Donnell.
The show is an Irish interpretation of the BBC series Great Britons.
An RTE spokeswoman said: 'The shortlist of 40 was derived from an MRBI poll, which will be put to a vote on a dedicated website. The five most popular will be the subject of an hourlong documentary, each charting the individual's impact and contribution to Irish life, as interpreted and championed by a well-known personality.' The show is already facing criticism, however, for airbrushing women from our history. The list includes a diverse range of men from poets to politicians, entrepreneurs to entertainers, revolutionaries to rock stars, as well as authors and humanitarians.
The public were excluded from choosing people like Mary McAleese or even Bertie Ahern, as those who currently hold public office were banned from the list. Including them would apparently breach RTE's election rules if there were an election before the programmes air in the autumn.
Perhaps reflecting society's obsession for all things celebrity, an abundance of actors and pop singers make the list at the expense of not only Ireland's greatest but some of the world's greatest scientists and artists.
The controversial list virtually ignores Irish women in all walks of life, despite them attaining greater success in their field than many of their male counterparts on the list.
There's no room for Maureen O'Hara, for instance, although she is considered an icon of Hollywood's golden age. Yet Colin Farrell and Liam Neeson are included in the Top 40.
Bono, Christy Moore, Ronan Keating and Stephen Gately all make the list, but inexplicably there is no room for Sinead O'Connor or Enya, Ireland's biggest-selling solo artists.
The heroes of 1916 and the Civil War feature prominently. James Connolly, Eamon de Valera, Sean Lemass and Padraig Pearse's roles in the Easter Rising and the foundation of the State ensured their places in the Top 40.
However, their female comrades, women like Countess Markieviecz and Maud Gonne who fought alongside the men in the struggle for independence, are ignored. …