Category: ADR

Functus – the risks of bifurcation

The Western Australian Court of Appeal upholds a primary judge’s decision that an arbitral tribunal’s interim award on liability meant that the tribunal was functus officio and prevented it considering additional liability issues in a bifurcated arbitration.

Intermediate appellate court holds proportionate liability inapplicable in arbitration

The effect of a very significant judgment of the South Australian Court of Appeal is that unless there is an express agreement to the contrary, ordinarily parties to an arbitration agreement will not be subject to the proportionate liability regimes that apply throughout Australia (with the possible exception of the Queensland regime).

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.