Category: ADR

Arbitration: The Australian approach to the interpretation of arbitration agreements

In Rinehart v Hancock Prospecting, the High Court underlined that arbitration clauses are to be interpreted in accordance with orthodox contractual interpretation principles, but missed the opportunity to clarify whether the liberal presumptive approach to the interpretation of arbitration agreements laid down by the House of Lords in Fiona Trust is good law in Australia.

Review of ‘competence’ decisions under s 16(9) of the CAA by Courts – hearing de novo

Arbitral tribunals have the ‘competence’ to make rulings on their own jurisdiction under s 16 of the CAA (and Model Law).  However, within 30 days after the ruling, a party can seek a review of that decision by asking the Court to decide the matter (s 16(9)).  The Supreme Court of Victoria has held, by reference to international authorities, that such a review is by way of hearing de novo. 

Trust dispute no bar to arbitration

Arbitration – scope of arbitration agreement – whether a dispute as to an alleged breach of trust constitutes a “matter” within the scope of an arbitration agreement – proper approach to construction of arbitration agreement – whether the arbitration agreement incapable of being performed – application for stay of proceedings under s 8 of Commercial Arbitration Act 2012 (WA)