Commentary and case law from the Commercial Bar Association's finest.
The New South Wales Court of Appeal recently revisited the principles relevant to determining the scope of an arbitration clause in overturning the decision of the NSWSC granting a stay in favour of arbitration.
The Supreme Court of Victoria has determined to enforce part of an arbitration award under the Commercial Arbitration Act 2011 (Vic), while refusing to enforce other parts where the reasons were inadequate and which also failed to identify a specific and ascertainable award amount.
In Rinehart v Hancock Prospecting Pty Ltd, the High Court considered the ability of a non-party to an arbitration agreement to stay court proceedings by claiming ‘through or under’ a party to the arbitration agreement. The plurality gave the phrase a broad interpretation which, it is submitted, creates uncertainty.
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.
The Supreme Court of Victoria’s Arbitration List judge has confirmed that the appropriate standard of review by a court of an arbitral tribunal’s preliminary ruling on jurisdiction is a de novo review.
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.
The Queensland Court of Appeal upholds an arbitrator’s award despite procedural missteps – no “real unfairness” or “practical injustice”.
The Full Court of the Federal Court of Australia adopts (guardedly) the ‘prima facie’ approach standard of review to applications for stay of court proceedings brought in the face of an arbitration agreement, bringing Australian jurisprudence in line with that of Singapore and Hong Kong.
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)
Arbitrator rendered an award styled “Final Award” that failed to deal with an issue referred to arbitration. Aggrieved party applied to have the issue determined by the Supreme Court. Other party sought a stay relying on the parties’ arbitration agreement. Held that the award was not a final award and that the arbitrator’s mandate continued to resolve the remaining issue.
In exceptional circumstances, a court exercising its inherent jurisdiction will temporarily stay its proceedings pending the hearing and determination of a related arbitration between one of the parties to the court proceedings and a third party (say, an insurer) if there are compelling case management considerations justifying that course.
In a recent decision of the Federal Court of Australia, Allsop CJ (sitting at first instance) has left the door open as to whether the Federal Court of Australia will depart from the (obiter) views of the Victorian Court of Appeal and instead adopt a default indemnity costs rule in arbitration related court proceedings, as is the case in Hong Kong.
The negative effect of the Kompetenz-Kompetenz principle (enshrined in the Model Law on International Commercial Arbitration) requires that courts not make pre-emptive declarations as to arbitral jurisdiction, and adopt a prima facie review when entertaining applications to stay court proceedings. A recent Australian decision threatens to undermine this.
This recent decision of the Arbitration List judge of the Supreme Court of Victoria suggests that the requirement that parties will be given a “reasonable opportunity” to present their case will be viewed robustly by a supervising court and not through the prism of domestic court litigation