DOWNER UTILITIES AUSTRALIA PTY LTD V MURRA WARRA ASSET CO PTY LTD and Others

79 VR 619·Croft J
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79 VR 619
DOWNER UTILITIES AUSTRALIA PTY LTD V MURRA WARRA ASSET CO PTY LTD and Others Supreme Court of VictoriaCroft J 10 December 2025, 18 February 2026[2026] VSC 48Arbitration — Arbitration agreement — Construction — Parties to contract commencing separate arbitrations before different tribunals — Hybrid arbitration clause providing for arbitration to be ‘conducted by the Resolution Institute in accordance with the ICC Rules of Arbitration’ — Workability of hybrid arbitration clauses — Jurisdiction of arbitral tribunal — Whether arbitrator entitled to apply Kompetenz-Kompetenz principle to determine authority to arbitrate — Which of two arbitration proceedings should continue.

When a German company, Senvion, entered into administration in Germany in 2019, this led to disputes between Downer, Murra Warra Asset Co Pty Ltd (known as Squadron), and Senvion regarding a wind turbine project in Victoria. Clause 42.5 within the relevant contract provided for a ‘hybrid arbitration’ agreement (the arbitration agreement), in which the rules of one arbitral institution, the International Chamber of Commerce (ICC), were to be applied by another (the Resolution Institute).

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