This proceeding involves the determination of a matter, whether the Condition Precedent in cl 2.1 of the Deed was satisfied and whether the Deed has terminated, that, in pursuance of the agreement in cl 8.4(b) of the Deed, is capable of settlement by arbitration. The proceeding must be stayed and the parties referred to arbitration.

Requirement to arbitrate in Milan. Arbitration clause upheld in Australia.

Arbitration clause upheld in Canada

Alleged illegal “tying arrangement,” in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1

The class action waiver provision were held to be unenforceable under the Federal Arbitration Act

Clickwrap Arbitration Clause

An example of an optional arbitration clause and delays potentially caused by complying with the agreed dispute resolution procedures

Our Mr White was the arbitrator in this matter.

Commercial Arbitration Act 2010 (NSW), ss 35 and 36 - Award by arbitrator declaring a constructive trust, ordering specific performance of a Licencing Agreement and requiring the defendant to take steps - recognition and enforcement opposed on the basis that part of the Award dealt with the dispute not contemplated by or falling within the terms of arbitration and that recognition and enforcement of parts of the Award would be contrary to the public policy of this State - orders for recognition and enforcement made

Our Mr White was the arbitrator in this matter.

Corporations Act 2001 (Cth), s440D - an application for leave to bring and continue proceedings against a company in voluntary administration for recognition and enforcement of an arbitral award pursuant to Commercial Arbitration Act 2010 (NSW) s 35 - nature of discretion to be exercised - relevant circumstances - leave granted

There was no material before the Court which satisfies it that the rules provided for in the arbitration clause formed part of the laws of Sweden (a convention country)

Our Mr White was the arbitrator in this matter.

Commercial Arbitration Act 2010 (NSW) s 16(9) - jurisdiction of arbitrator to determine dispute concerning patents and patent applications - Contract - construction - meaning of term “dispute” in an arbitration clause - whether issues raised are purely hypothetical

This is an application by the defendant, Origin, for the stay of these proceedings under s 8 of the Commercial Arbitration Act 2010 (the CA Act 2010)

Origin's motion filed on 17 February 2011 should be dismissed with costs

This analysis, in my respectful opinion, usefully underscores the wider picture about the autonomy of the parties and the jurisdiction of arbitrators with power to investigate their own jurisdiction

…namely that, sooner or later, the question of substantive jurisdiction is likely to come before the court.

Where parties differ as to a matter as fundamental as whether they have agreed any contract, or any contract containing an arbitration clause, it is most unlikely that one or other of them will rest content with the decision of arbitrators as to either their jurisdiction or as to the parties' rights.

For one or other party is saying that there is simply no agreement that arbitrators can resolve their disputes.

In such circumstances, the issue of jurisdiction is likely to come before the courts sooner or later, and when it does, it will have to be decided by the court from first principles and in the light of facts which, whatever the investigation by the arbitrators, are yet to be determined on the evidence by the court.

Thus, a question of jurisdiction may come before the court in a number of different situations.

It might arise where one party goes to court with a claim and the defendant seeks a stay for arbitration: the claimant may say there is no contract or no arbitration agreement, and the court will have to investigate that question for the purpose of dealing with the application to stay.

Or a party may commence an arbitration, and the other party may say there is no agreement or no agreement to arbitrate, in which case the matter is prima facie for the arbitrators to decide in the first instance pursuant to section 30.

In a plain case, the arbitrators may proceed to determine their own jurisdiction, but equally the parties may agree to come straight to court to determine the question, or the arbitrators may give permission for the issue to be taken to court and the court may agree to accept the issue at that stage.

Or the respondent in the arbitration may stand aloof, and come to court under section 72, or, following an award, under section 67.

Or, a party may start proceedings in another country and the defendant there then comes to the English court to ask it to uphold their arbitration agreement by granting an anti-suit injunction.

That is the equivalent of a party seeking a stay where an action is begun in England.

Where the action in breach or alleged breach of an arbitration agreement is begun in a foreign country, the respondent may or may not seek a stay there, but here he may ask for an anti-suit injunction.

There are further variations thrown up by the cases.

In some cases, it is reasonably plain that an arbitration agreement has been made, but there may be an issue as to its scope, or as to whether there has been a repudiation of it, or, as here, as to its surviving effectiveness.

In other cases, there is a factual dispute as to whether any agreement has ever been made in the first place, or a legal dispute as to whether an arbitration clause has been incorporated into the parties' contract.

Moreover in some cases, what is sought from the court is an interim injunction, which is among the subject-matters of section 44, and in other cases what is sought is a final injunction, which is not within section 44 but, subject to contrary agreement by the parties, may be within the powers of an arbitral tribunal in a final award ³⁶⁾.

Moreover, a distinction may have to be made between a declaration as to the existence or effectiveness of an arbitration agreement about which parties are in dispute, which is a form of final relief as to the parties' legal rights, and an anti-suit injunction which, at any rate in its interim form, is only intended to hold the ring until some tribunal, whether it is the court itself at some later date, or an arbitral tribunal, can grapple with the merits of the parties' dispute.

The scope of a referral to arbitration depends upon the proper construction of the relevant arbitration clause.

clause

..[an arbitration] clause is to be read liberally as required by the common law of Australia ⁴²⁾

So reading the clause, it can be seen to require the totality of likely disputes between the parties to be dealt with by the clause.

No evidence is needed to appreciate that an engineering contract for the designing and building of new rolling stock for Railcorp could lead to complex disputes, which, if litigated, could be productive of very large legal and associated forensic costs.

all and any disputes shall be referred to and subject to arbitration in London before a tribunal of three arbitrators

Applied the principles set out Fiona Trust v Privalov ⁴⁴⁾ and concluded that the Arbitral Tribunal had jurisdiction.

The case also involved the enforcement of a peremptory order.

The order was granted together with a freezing order.

Electra Dispute Clause

Shelltime4 Dispute Clause

The owners have commenced court proceedings for a declaration that the charters have been validly rescinded and the charterers have applied for a stay under section 9 of the Arbitration Act 1996

The parties have entered into a relationship, an agreement or what is alleged to be an agreement or what appears on its face to be an agreement, which may give rise to disputes.

They want those disputes decided by a tribunal which they have chosen, commonly on the grounds of such matters as its neutrality, expertise and privacy, the availability of legal services at the seat of the arbitration and the unobtrusive efficiency of its supervisory law.

Particularly in the case of international contracts, they want a quick and efficient adjudication and do not want to take the risks of delay and, in too many cases, partiality, in proceedings before a national jurisdiction.

In my opinion the construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal.

The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator's jurisdiction. ⁴⁸⁾

If one adopts this approach, the language of clause 41 of Shelltime4 Dispute Clause contains nothing to exclude disputes about the validity of the contract, whether on the grounds that it was procured by fraud, bribery, misrepresentation or anything else.

In my opinion it therefore applies to the present dispute.

where a party to an arbitration agreement makes the same claim against both the other party to the arbitration agreement and a person who is not a party to the arbitration agreement – with the result that, so far as it involves the latter, the dispute cannot be referred to arbitration – it will generally be equally difficult to ascribe to the parties to the arbitration agreement an intention that in such an event the dispute should be fragmented and that the liability of the party to the arbitration agreement and that of the third party respectively should be determined in different forums

Option to arbitrate or litigate

King v Brandywine Reinsurance Co (UK) Ltd⁵²⁾

Commercial Union Assurance Co Pk v NRG Victory Reinsurance Limited⁵³⁾

BP plc v National Union Fire insurance Co⁵⁴⁾

EI Du Point de Nemours & Co v IC Agnew⁵⁵⁾

These commercial parties freely entered a bargain to resolve their disputes in London according to English law.

No one forced Pan to do so.

Through its broker, it entered the international market for the time chartering of vessels.

It negotiated hire and terms on the foundation of a dispute resolution clause in clause 45(b).

If it had wanted to maintain any rights by reference to Australian law governing its relationship, it could have bargained for them.

It did not.

There is no provision of the Trade Practices Act that says the parties cannot enter a clause such as clause 45(b).

There are powerful discretionary reasons why an arbitration agreement should be enforced, even if the contractually chosen venue and law give rights not entirely the same as would arise under one party’s domestic law and in one party’s domestic courts⁵⁷⁾

If Australian commercial parties desire Australian dispute resolution clauses they should bargain for them

I accept, as well, that public policy considerations operate against referring to arbitration a determination to wind up a company on the grounds upon which a court may order that a company be wound up.

However, I would not regard these public policy considerations as preventing parties to a dispute from referring questions to arbitration merely because those questions arise under the Corporations Act.

I see nothing special about the Corporations Act that would distinguish it, as a whole, from other legislation such as the Trade Practices Act.

This seems to be the position reached by United States courts ⁶¹⁾

The statutory powers of a Court under the Corporations Act are, generally speaking, comparable to the powers exercised by a court under the general law (the power to make a winding up order being an exception to this proposition). They are generally not special powers to be exercised having regard to specialist public interest criteria.

Specifically, the public policy considerations held by Warren J⁶²⁾⁶³⁾to be applicable to a disputed claim to wind up a company do not seem to me to prevent the parties from referring to arbitration a claim for some merely inter partes relief under the oppression provisions of the Corporations Act, or for access to corporate information under s 247A.

However, the “in rem” nature of an order for rectification of the share register of a company may prevent reference of that power to an arbitrator.”

From the foregoing trend of authority, both in Australian and overseas courts, it can be seen that an arbitration clause, expressed in the language of the clause here under consideration, is not to be narrowly construed.

It is sufficiently wide to include claims for rectification and for relief on the grounds of misrepresentation or mistake ….

Whilst it is true that the conduct complained of as being in breach of the Trade Practices Act (Cth) is alone sufficient to enliven the provisions of that Act and whilst such provisions do not depend upon the agreement of the parties, such considerations do not determine the simple question posed.

That question is whether the misrepresentations alleged are `related to this agreement or the breach thereof'.

It is enough to say that, in this case, it was open to Rogers CJ Comm Div to determine that the relationship was made out on the pleadings

In the context of s 7(2), the expression ‘matter … capable of settlement by arbitration’ may, but does not necessarily, mean the whole matter in controversy in the court proceedings.

So too, it may, but does not necessarily encompass all the claims within the scope of the controversy in the court proceedings.

Even so, the expression ‘matter … capable of settlement by arbitration’ indicates something more than a mere issue which might fall for decision in the court proceedings or might fall for decision in arbitral proceedings if they were instituted ⁷³⁾.

It requires that there be some subject matter, some right or liability in controversy which, if not co-extensive with the subject matter in controversy in the court proceedings, is at least susceptible of settlement as a discrete controversy.

contraventions of sections of the Act “arise exclusively from the statutory provisions themselves” and not from any contractual relationship between the parties

In my opinion, the word ‘matter’ in s 7(2)(b) denotes any claim for relief of a kind proper for determination in a court.

It does not include every issue which would, or might, arise for decision in the course of the determination of such a claim.