CONTRACT – where applicants are subsidiaries of company registered in Russian Federation – where first respondent (QAL) operates alumina refinery in Gladstone under agreements with applicants and second to sixth respondents (Rio parties) – where pursuant to those agreements the Rio parties supply bauxite to the first applicant (ABC) and ship the bauxite to Gladstone on behalf of ABC, and QAL receives the bauxite and refines the bauxite into alumina on a toll basis on behalf of ABC and certain of the Rio parties and delivers the alumina to those parties – where Australian Government imposed sanctions against Russia and certain Russian business-people pursuant to the Autonomous Sanctions Regulations 2011 (Cth) (Russia Sanctions) as a result of Russia’s invasion of Ukraine – where QAL invoked provisions of agreements to cease receiving bauxite and producing alumina for ABC and delivering alumina to ABC – where the Rio parties invoked provisions of agreements and ceased supplying and shipping bauxite to ABC – whether the actions of QAL and the Rio parties are in breach of contracts with the applicants – whether imposition of Russia Sanctions rendered performance of the contracts by QAL illegal and was therefore a supervening illegality to excuse performance – whether imposition of Russia Sanctions was an event of force majeure for purposes of contractual provision to excuse performance
STATUTORY INTEPRETATION – Autonomous Sanctions Regulations 2011 (Cth) and Autonomous Sanctions Act 2011 (Cth) – whether delivery of alumina by QAL to ABC is a “sanctioned supply” within meaning of regs 4 and 12 of Autonomous Sanctions Regulations 2011 (Cth) – consideration of the definition of “sanctioned supply” in reg 4 of Autonomous Sanctions Regulations 2011 (Cth) – consideration of the elements of the definition and the time at which the elements must be satisfied – consideration of phrases “for use in” and “for the benefit of” – whether production of alumina by QAL for ABC and delivery of alumina by QAL to ABC involves indirectly making an asset available to, or for the benefit of, a designated person or entity within meaning of reg 14 of Autonomous Sanctions Regulations 2011 (Cth) – where designated persons have substantial indirect shareholding interests in ABC – consideration of the phrase “indirectly makes an asset available” and “for the benefit”
UNDERTAKING – whether undertaking to the Court proffered by applicants in respect of their future conduct should be accepted – whether declaratory and injunctive relief should be granted on the basis of an undertaking as to future conduct – whether Court has power to accept an undertaking as a foundation for granting declaratory and injunctive relief on a prospective basis – discretionary considerations – whether undertaking is sufficiently certain – whether compliance with undertaking removes risk of contravention of Russia Sanctions
Original article available at: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2024/2024fca0043
For more information, see the original judgement.
