Author: Albert Monichino QC

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.

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)

Contract: Amendment or replacement?

Parties to a contract enter into a further contract by which they vary the original contract terms. Is the effect of the second contract to bring the first contract to an end and to replace it with the second, or to leave the first contract standing, subject to alteration?

Balanced Securities Limited v Dumayne Property Group Pty Ltd [2017] VSCA 61

Arbitration: when a final award is not final

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.

Arbitration: Temporary stay of related court proceedings

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.

Arbitration: Chief Justice leaves door open on indemnity costs

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.

Arbitral jurisdiction: what has Kompetenz-Kompetenz got to do with it?

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.

Arbitration: Reasonable opportunity to present case

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

What is an “arbitration”?

Are proceedings before the AFL Anti-Doping Tribunal an “arbitration” for the purposes of the Commercial Arbitration Act 2011 (Vic) such that ASADA is entitled to subpoenas pursuant to section 27A of the Act requiring witnesses to attend and produce documents before the Tribunal?