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The Court stated that despite the strong federal policy favouring arbitration, a party seeking to compel arbitration under the FAA and the NYC must demonstrate i that there is an agreement to arbitrate; and ii that the dispute falls within the scope of the arbitration agreement.
In the present dispute, the Court found that Rhodia, S. In its submission, the correct approach was for the Court to conduct only a prima facie review of the existence of an arbitration agreement and to otherwise defer all questions as to the existence, scope and validity of such an agreement to an arbitral tribunal.
According to Claxton, the correct approach was for the Court to decide threshold questions of jurisdiction such as the existence of an arbitration agreement without deferring such questions to an arbitral tribunal. It denied that any such agreement had been made between the parties in the present case and sought to invoke a clause in the contract bestowing exclusive jurisdiction on the English courts.
The Court refused the stay, considering that it could decide as a threshold question whether an arbitration agreement had been made between the parties. It ultimately agreed with Claxton as to the non-existence of such an agreement and the applicability of the exclusive jurisdiction clause, on grounds unrelated to the NYC.
The general terms and conditions of the Contract provided that all disputes arising out of, or in connection with, the Contract would be settled by negotiations and, in case of their failure, by arbitration in London.
The Contract also provided that an arbitration court in Moscow would have exclusive jurisdiction to conduct and assist with the arbitration proceedings.
After Danzas failed to reimburse Starstroy for fuel delivered pursuant to the Contract, the latter initiated proceedings before the Moscow Arbitrazh Court court of first instance. Danzas appealed to the Ninth Arbitrazh Court of Appeal court of appeal to have the first instance ruling overturned.
While the court recognised the existence of the arbitration clause in the Contract, it concluded that, considering the position of the parties and the content and form of the arbitration clause, the arbitration clause was unenforceable and the Moscow Arbitrazh Court therefore had jurisdiction to hear the case.
This contract, created by various communications between the parties, provided for arbitration in London. In July , the parties agreed to another sale through a further series of communications, including one referring to an earlier draft contract which contained the June arbitration agreement. Disputes arose under both the June and July contracts. GCT claimed that the July contract was not governed by the June arbitration agreement, and commenced litigation in Tunisia for a declaration to that effect and for damages.
GCT also challenged various applications brought by Midgulf in the English courts. The High Court refused to discontinue an anti-suit injunction obtained by Midgulf enjoining GCT from pursuing the Tunisian proceedings.
GCT appealed. The Court of Appeal affirmed the High Court's ruling regarding the anti-suit injunction. It noted the well-established jurisdiction of English courts to issue anti-suit injunctions to restrain foreign court proceedings that would be in breach of an English arbitration agreement.
The Court noted the long-standing English judicial view that anti-suit injunctions were not incompatible with the NYC.
The Moscow Arbitrazh Court court of first instance refused to consider the claim because the Loan Agreement contained an arbitration clause.
The Ninth Arbitrazh Court of Appeal court of appeal overturned the decision of the court of first instance on the basis that the Loan Agreement gave ING, as the financing party bearing the financial risk, a unilateral option to refer the dispute either to arbitration in England or to any competent court.
Eurokommerz filed a cassation complaint alleging that the court of appeal violated Russian law and Article II 3 NYC by failing to refer the parties to arbitration. The Federal Arbitrazh Court for the Moscow District court of cassation upheld the decision of the court of appeal recognising the jurisdiction of the Moscow Arbitrazh Court.
According to the court of cassation, which did not refer to the NYC, the Loan Agreement contained a valid and enforceable unilateral jurisdiction clause granting ING, as the financing party bearing the financial risk, the choice of which forum to seise. The court also noted that the jurisdiction clause was valid under English law, which was the law applicable to the Loan Agreement.
Ideal Image Development Corporation Inc. One of the respondents applied for a stay of the proceedings, invoking an arbitral clause contained in the agreement and s 7 of the International Arbitration Act Cth giving effect to NYC Article II 3 by providing that where proceedings instituted by a party to an arbitration agreement to which the Court determines the NYC applies are pending in a court, on the application of another party to the arbitration agreement, the court must stay the proceedings and refer the parties to arbitration.
The applicants resisted the application on numerous bases, including that the claims were not suitable for arbitration because they involved issues of competition law which raised public policy considerations, which was a ground for refusing enforcement under s 8 7 b of the Act implementing Article V 2 b NYC. The Federal Court granted the application for a stay.
In accordance with an exclusive jurisdiction clause contained in the agreement, it ordered that these non-arbitrable claims be heard in the courts of Florida. It referred the balance of the claims to arbitration.
Viator SR. Dauterive Contractors, Inc. UralEnergoGaz filed a claim with the first instance court Moscow Arbitrazh Court against Electroengineering, seeking compensation for late delivery of equipment under the delivery contract. The Moscow Arbitrazh Court referred the parties to arbitration based on the arbitration clause in the contract.
In its petition to the court of appeal Ninth Arbitrazh Appeal Court , UralEnergoGaz requested to set aside the ruling of the Moscow Arbitrazh Court and argued that the arbitration agreement was invalid because i it did not specify a particular arbitration court or rules of arbitral procedure; and ii the procedure for the appointment of arbitrators was not properly specified.
The Ninth Arbitrazh Appeal Court set aside the first instance ruling and referred the case back to the Moscow Arbitrazh Court for a new trial. In reaching its conclusion, the Appeal Court referred to a ruling of the Highest Arbitrazh Court of the Russian Federation and Article II 3 NYC, according to which a state court can assert jurisdiction over a dispute even where the parties have entered into an arbitration agreement, if it considers the arbitration agreement to be null and void, inoperative or incapable of being performed.
The Appeal Court found that the arbitration clause in question was unenforceable, reasoning that since the contract did not contain a standard arbitration clause suggested in Article 1 of the UNCITRAL Rules the parties had failed to agree on specific arbitration rules to govern the appointment of arbitrators, in the absence of which it was impossible to conclude that the parties had agreed on the UNCITRAL Rules. The Appeal Court thus held that the arbitration agreement was unenforceable and that its enforcement would violate the right of the claimant to juridical protection.
The arbitral tribunal shall hold the hearings in Helsinki Finland in the English language. The award of the arbitral tribunal shall be final and binding on both parties.
The court of first instance, relying on the principles of separability and competence-competence, refused the application and declared the arbitration clause valid.
GlavPromStroi appealed the first instance ruling alleging inter alia that 1 termination of the agreement containing the arbitration clause had invalidated the arbitration clause, 2 by applying to the state courts, the parties waived their right to arbitration, and 3 the arbitration clause was unenforceable because a no arbitration institution was chosen, b the applicable procedural law was not agreed by the parties, c a precise arbitration venue in Helsinki was not indicated, d the number of arbitrators was not determined, e the Director-General of GlavPromStroi exceeded his authority by signing a contract containing an arbitration clause, and f GlavPromStroi lacked the financial means to pay the arbitration costs.
The Thirteenth Arbitrazh Court of Appeal court of appeal upheld the ruling of the court of first instance declaring the arbitration clause to be valid. It relied on the Law on International Commercial Arbitration and the Federal Law on Arbitration Courts in the Russian Federation to recognise the separability of arbitration agreements and concluded that arbitration clauses continue to bind the parties even after termination of the underlying contracts.
The court further noted that the claims filed by both parties with the state court had not been examined on the merits. Referring to the NYC in the context of the recognition and enforcement of the award, the court concluded that issues relating to the enforceability of the arbitration clause would be determined by the arbitral tribunal once it had been constituted. Riek v.
XPlore-Tech ervices Private Limited et al. National Money Mart Company. MacKinnon, and others who received similar loans, commenced an action against Money Mart alleging that the cheque cashing fees applied by Money Mart upon repayment of the loans constituted illegal interest and were prohibited by the Criminal Code.
Money Mart requested that the dispute be referred to arbitration but MacKinnon refused. These orders were appealed by Money Mart in the same year. The Court of Appeal held that the rulings in Dell and Rogers, which involved class action proceedings in Quebec, should both apply in British Columbia.
They were therefore to be interpreted in a manner consistent with both. SAE Group Inc. Appendix 4 to the contract contained a clause providing for the appointment of an expert to arbitrate all disputes arising under the contract. Disputes arose and, on the application of SAE, an expert arbitrator was appointed by the Institution of Electrical Engineers. BT then applied to the English High Court for a declaration that the expert lacked jurisdiction to arbitrate the dispute, as there was no binding arbitration agreement between the parties.
The High Court granted the declaration under its inherent jurisdiction. The Court observed that the question whether the application should be considered under its inherent jurisdiction or under the Act depended on whether there was an arbitration agreement, as defined by the Act.
Accordingly, the Court reasoned that it was first required to determine whether, prima facie, there was such an agreement. In the present case, it found that there was no such agreement in the terms of Appendix 4 to the contract, which was only in draft form and not duly executed.
Accordingly, it concluded that the Act was inapplicable. The Court reasoned, moreover, that even if it had reached the opposite conclusion—namely, that there was sufficient evidence of the prima facie existence of an arbitration agreement and that the Act was applicable—then it would have had power under sections 72 and 32 of the Act to consider the application and would also have exercised its jurisdiction under those provisions to grant the declaration.
In the course of its reasoning, the Court drew an analogy to cases where one party to arbitral proceedings brought an application under section 9 of the Act providing that the court shall, on an application by a party to an arbitration agreement against whom legal proceedings are brought in respect of a matter which, under the agreement, is to be referred to arbitration, stay the proceedings so far as they concern that matter, unless it is satisfied that the agreement is null and void, inoperative, or incapable of being performed c.
Article II 3 NYC , seeking to stay an application brought by the other party to the arbitral proceedings under section 72 of the Act. Creation Ministries Intern. The MoA contained an arbitration clause. The District Court compelled arbitration. AIG then commenced arbitration. CMI filed a motion with the District Court to stay the arbitration proceedings. The United States Court of Appeals for the Sixth Circuit confirmed the District Court decision to compel arbitration and its decision not to issue a foreign antisuit injunction.
The Court noted that both Australia and the United States are signatories to the NYC and thus its terms governed the resolution of the dispute. After Eurokommerz defaulted on the loan, Frontpoint initiated proceedings in Russia. The Moscow Arbitrazh Court court of first instance refused to hear the complaint because the Loan Agreement contained an arbitration clause.
The first instance ruling was overturned by a decision of the Ninth Arbitrazh Court of Appeal court of appeal which gave a different interpretation to the arbitration clause. Without referring to NYC, it concluded that, on the basis of a systematic and consistent interpretation of the Loan Agreement, that agreement provided for different dispute settlement options depending on whether the creditor or the debtor brought the claim. The court of cassation found the optional dispute settlement mechanism valid, as the option was given to the creditor in exchange for the financial risk it assumed.
The court also noted that the clause was valid under English law, which was the law applicable to the Loan Agreement. The French insurers sought contribution from the English insurers with respect to the settlement of an insurance claim. The English insurers initiated court proceedings in England, seeking a declaration of non-liability on the ground that the settlement had been made without their authority.
The French insurers objected to the jurisdiction of the English court on the ground, inter alia, that the English insurers were bound by an arbitration clause found in the French policy agreement providing for arbitration in Paris. The High Court held that it had jurisdiction over the dispute. However, the Court observed that there was a remedy for that situation in the NYC, which was given expression domestically in section 9 of the Arbitration Act, U. The Distribution Agreement contained a dispute resolution clause providing for arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations of the Institute of Arbitrators and Mediators Australia.
A dispute arose and Seeley initiated proceedings against Electra in the Federal Court of Australia, seeking declaratory relief.
Electra argued that the proviso should be construed as providing that an arbitrator could grant injunctive or declaratory relief without the need for the parties to go through the procedural steps prescribed by the arbitral clause. It pointed out that the proviso did not expressly refer to injunctive or declaratory relief being granted before a court.
At first instance, the judge found that the arbitral clause did not prevent Seeley from seeking declaratory relief before a court. Electra appealed. The Full Court dismissed the appeal, agreeing with the construction of the arbitration agreement given by the Court at first instance.
Royal Caribbean Cruise, Ltd. Weekly Fed. Further, the Court held that an agreement in writing existed even though the arbitration agreement was only written in the SOEA, because it was expressly incorporated by reference into the CBA. Allen alleged multiple claims under U. Allen sought to remand back to state court, arguing i that two of the four jurisdictional prerequisites for the application of the NYC were not satisfied, i.
The Court was satisfied that RCC had promptly cured any initial defect by filing the documents with its subsequent pleadings. The Court cited to case law holding the contrary. Moreover, the strong national policy of enforcing arbitration agreements, particularly in the international context, outweighed any countervailing policy considerations. Alternatively, Cosco argued that the Court had an inherent power to order the stay.
The Federal Court refused to order the stay. It held first, that Cosco was not entitled to invoke s 7 of the Act. In so ruling, it noted that s 7 2 of the Act required that one party to an arbitration agreement institute a proceeding against another party to the agreement. However, it held that Cosco was not a party to the arbitration agreement and did not, moreover, satisfy the criteria set forth in s 7 4 of the Act for being deemed to be a party to the arbitration agreement.
Second, it held that it did not have an inherent power to grant the stay and even if it did, this was not a case in which the power should be exercised.
Parsons Global Services Ltd. An order was issued in favor of GA on 16 July In response, GA contended that this dispute did not fall under the scope of the arbitration agreement, which provided that all disputes, except those related to the collection of "exact" amounts which it claimed was the case here , should be settled through arbitration.
It noted that the dispute pertained to the recollection of an amount deemed "exact", which did not fall under the jurisdiction of the arbitral tribunal pursuant to the arbitration agreement. It thus confirmed that the Tribunal de Grande Instance de Paris had jurisdiction to hear this dispute. The Federal Court refused the application for a stay of the proceedings. However, the Court rejected the construction of the proviso found in the arbitral clause contended for by the Respondent.
Accordingly, the Court concluded that there was no agreement by the parties to submit applications such as the present exclusively to arbitration.
The contract contained an arbitration agreement providing for arbitration in Switzerland. Subsequently the couple sought legal advice from X regarding certain tax issues. A dispute arose regarding the adequacy of this last legal advice.
The spouse sued the attorney before local courts who then raised a jurisdictional objection based on the existence of the arbitration agreement. It held that it was manifest that the agreement did not cover the subsequent legal advice regarding tax issues but only applied to the domiciliation procedure.
Bayer Cropscience Inc. Languages English Summary Companies A, B, and C entered into a preliminary contract for the purchase and sale of real estate. The contract contained an arbitration clause providing for arbitration in Switzerland. Union des consommateurs and Olivier Dumoulin. Dell noticed the error one day later and blocked access to the erroneous order pages.
Olivier Dumoulin "Dumoulin" circumvented the measures taken by Dell by using a deep link that enabled him to access the order pages without following the usual route, ordered a computer at the lower price incorrect price indicated there. When Dell refused to honor Dumoulin's order at the lower price, the Union des consommateurs and Dumoulin filed a motion for authorization to institute a class action against Dell.
Dell appealed and the Court of Appeal of Quebec affirmed the decision. The Court refused to find that arbitration inherently involves a foreign element that would trigger the application of Article of the CCQ, and considered instead that arbitration is a neutral institution without a forum and without a geographic basis.
The Court then analyzed whether there was a valid arbitration agreement that could bind the parties. It referred to Article The Court noted that the increasingly prevalent approach to the competence-competence principle requires the court to limit itself to a prima facie analysis and refer the parties to arbitration unless the arbitration agreement is manifestly tainted by a defect rendering it invalid or inapplicable.
The Court rejected the Union des consommateurs' arguments concerning the invalidity of the arbitration agreement on grounds unrelated to the NYC.
Several of the parties to the proceedings applied for orders staying the proceedings and referring the dispute to arbitration. The Federal Court found that there was no agreement to arbitrate, and the application was dismissed on that basis. In so ruling, the Court considered that Article II 1 NYC did not require that an arbitration agreement be formed by an exchange of documents, and that conduct alone might suffice.
The contract referred to an arbitration agreement contained in a separate document. An individual buyer sued an Italian intermediate seller Merident , who had acquired Heraeus Kulzer products from Dellatore Vera, before the Tribunale di Napoli Naples Tribunal of First Instance on the grounds of liability for hidden defects.
Merident joined Dellatorre Vera in these proceedings, which in turn joined Heraeus Kulzer based on the warranty against hidden defects. Heraeus Kulzer raised a jurisdictional objection based on the arbitration clause referred to in the distributorship agreement. The Tribunale di Napoli found that the Italian courts lacked jurisdiction in respect of the dispute between Hereaus Kulzer and Dellatorre Vera over the existence of an arbitration agreement. Heraeus Kulzer appealed the decision, arguing that the Italian domestic courts lacked jurisdiction since the warranty claim was based on the distributorship agreement containing the arbitration clause and the broad wording of the arbitration clause covered disputes directly or indirectly arising out of the distributorship agreement.
It noted that the validity of an arbitration clause relates to the merits of the case and does not constitute a jurisdictional issue. It further stated that it is an inherent part of the power of the domestic court to review the validity of the arbitration agreement, on the basis of which it waives its own jurisdiction. The Corte Suprema di Cassazione stated that such a principle is applicable even under Article II 3 NYC, which does not require that a case be referred to arbitration through a declaration for lack of jurisdiction by the domestic courts, but rather leaves it to the legal order of the contracting state to determine the mechanism by which domestic courts divest themselves of a case in favour of arbitration.
According to the Corte Suprema di Cassazione, Article II 3 NYC, therefore, allows the Italian legal order to consider the issue of validity and efficacy of the arbitration agreement as an issue of admissibility of the claim rather than as an issue of jurisdiction. It held that while the Italian courts have a duty to review the validity or efficacy of an arbitration clause on a preliminary basis, they may not, however, exercise such review with respect to a foreign court.
The Corte di Cassazione held that, in the case at hand, the Corte di Appello di Napoli had erred in maintaining the jurisdiction of the Italian courts after having decided that the dispute did not fall within the scope of the arbitration agreement, because it had ruled, on the wrong premise, that the interpretation of the arbitration agreement raised an issue of jurisdiction.
After noting that it is up to the court deciding on the merits to assess the content of the arbitration agreement, the Corte di Cassazione held that the lower court had failed to examine the text of arbitration clause and, in particular, the reference to disputes directly or indirectly arising out of the distributorship agreement.
It remanded the case before a different section of the Corte di Appello di Napoli for a reexamination of the scope of the arbitration agreement and refused to examine the alternative motion for lack of jurisdiction based on the jurisdiction clause in favour of the German courts.
Oceanfast Pty, Ltd. Ltd Japan v. Aksh Optifibre Ltd. On appeal, the High Court ruled that the trial court wrongly applied Section 8 rather than Section 45 its foreign awards counterpart, which directly incorporates Article II 3 NYC and remanded the case to the trial court.
Shin-Etsu then appealed to the Supreme Court. The issue before the Court was whether, under Section 45 of the Act, a trial judge is required to submit a matter to arbitration upon a prima facie showing that an arbitral agreement is not null and void, inoperative, or incapable of being performed. The Supreme Court, by a majority, held that under Section 45 of the Act and Article II 3 NYC, a judge must refer a matter to arbitration upon a prima facie showing that the agreement is not null and void, inoperative, or incapable of being performed.
Although nothing in the language of Section 45 itself indicated whether a finding as to the nature of the arbitral agreement has to be ex facie or prima facie, the Court found that requiring only a prima facie showing better served the purpose of the Act and the NYC , which was to enable expeditious arbitration without avoidable intervention by judicial authorities.
Normand Inc. The sales contract between GreCon and Tremblay included a choice of forum clause providing for the jurisdiction of German courts. Tremblay terminated its contract with Normand and commenced court proceedings in Quebec for breach of contract.
Normand brought an incidental action against GreCon in the same court. With reference to the doctrine of forum non conveniens, the courts at both the trial and appellate levels favored the jurisdiction of the Quebec courts. GreCon appealed the decision to the Supreme Court of Canada. The Supreme Court of Canada granted the appeal and reversed the decisions of the lower courts favoring the jurisdiction of the Quebec courts.
The Court gave primacy to the principle of party autonomy and honored the choice of forum provision that GreCon and Tremblay had included in their sales contract. In so doing, it considered the relationship between Article of the CCQ and Article 2 of the CCQ, which allows parties to derogate from the jurisdiction of Quebec courts in favor of foreign courts or arbitration "in respect of a personal action of a patrimonial nature. In its reasoning, forum selection clauses and arbitration clauses are expressions of party autonomy that serve the interest of legal certainty, particularly in international commercial relations.
The Court stated that the object and purpose of the NYC, in particular Article II 3 NYC, was to strengthen the recognition and value of arbitration agreements, which confirm[s] the position that the enforcement of an arbitration agreement cannot be precluded by procedural rules relating to actions in warranty. In the course of the court proceedings, all rights of the original creditor were assigned to Duke Investments Limited.
The court of first instance refused to hear the application because the loan agreement contained an arbitration clause. The Prosecutor and the Kaliningrad Regional Administration appealed the first instance ruling, alleging that the Prosecutor, acting in public interest, was not bound by the arbitration clause and could challenge the loan agreement in the Russian courts. The Thirteenth Arbitrazh Court of Appeal court of appeal upheld the first instance ruling referring the parties to arbitration.
Since the arbitral tribunal sitting in London had already rendered an award declaring the arbitration clause valid under English law, the court of appeal considered this finding as a proof of the validity of the arbitration clause under English Law.
The court of appeal further held that under Russian law, the Kaliningrad Region — a state entity represented by its governor — had the authority to conclude civil law contracts. Lastly, the court held that, as long as the respondent had not argued the merits of its case in front of a domestic court, neither its request for provisional measures nor its motion for substitution of a party constituted a waiver of its right to arbitrate the dispute.
A dispute arose and Guang Dong initiated arbitration. ACI did not participate in the arbitral proceedings. ACI opposed confirmation, arguing, inter alia, that: i it was not accorded proper notice of the arbitration proceedings; ii the award was based on matters outside the arbitration agreement; iii enforcing the award would be contrary to public policy; and iv there was no valid agreement to arbitrate as no contractual relationship existed between the parties.
The District Court denied confirmation via summary judgment. It found that although Guang Dong had provided, in accordance with Article IV NYC, a certified copy of the award, its official translation and the fourteen sales contracts containing the arbitration clauses, it had not provided a certified copy of the JVA and thus had failed to prove the existence of a valid arbitration agreement under the JVA as per Article IV NYC.
The Court therefore found that it lacked jurisdiction to confirm the portion of the arbitration award dealing with disputes arising out of the JVA. The Court further decided that it had jurisdiction to determine the question of existence of the arbitration agreement, because the parties had not provided for the arbitrators to determine the question of arbitrability.
After so finding, the Court also declined Guang Dong's request to compel arbitration under Article II 3 NYC because there was a genuine issue of material fact as to whether the JVA was valid and, if it was valid, whether it contained an arbitration agreement.
The Court, thus, denied the request to compel arbitration on summary judgment, finding that there was no arbitration agreement in writing under Article II 2 NYC. Sankyo Corporation, et al.
Alcan Inc. When the subcontractor went bankrupt and Alcan was no longer able to perform its duties under the contract, Powerex commenced arbitration in Oregon, U. Upon an application by Alcan, the Supreme Court of British Columbia suspended the enforcement proceedings as long as the annulment proceedings were pending with the U.
Upon a further application by Alcan, the Supreme Court of British Columbia decided to stay the enforcement proceedings while annulment proceedings were pending in the US Court of Appeals for the Ninth Circuit. The British Columbia Court of Appeal granted Alcan leave to appeal the part of the Supreme Court suspension order that allowed Powerex to receive payment of the award and spend this money in exchange for posting security for its repayment.
The British Columbia Court of Appeal, however, denied Alcan's request to stay execution on the Supreme Court's order on the grounds that it had the authority to order that a security payment be made. Offshore Technical Services, Inc. The POEA contained an arbitration clause. The Plaintiffs initiated a civil action in state court. The Defendants filed a motion to stay litigation and compel arbitration. The Plaintiffs filed a motion to remand the case to state court, arguing, inter alia, that: i the seamen contracts were exempted from the coverage of the NYC; and ii the arbitration agreements were null and void because the POEA had ceased to be authorized to perform regulatory functions on behalf of Filipino workers at the time the contracts were entered into.
In so ruling, the Court held that all the jurisdictional prerequisites for the arbitration agreements to be enforced had been met: i there was an arbitration agreement in writing; ii the agreement provided for arbitration in the territory of a signatory to the NYC; iii the agreement arose out of a commercial legal relationship; and iv one of the parties to the agreement was not an American citizen.
Netherlands v. Eric Grina moved to compel arbitration on the basis of an arbitration clause in purchase orders and service and support agreements.
The Court denied the motion and Mr. Grina appealed. Libyan Arab Airlines. A dispute arose regarding the performance of the contract and was submitted to arbitration. LAA filed a motion to dismiss the proceeding. The trial judge concluded that the issue of arbitrability could not be addressed except in the context of a motion to homologate or set aside an award.
It considered, inter alia, that arbitral tribunals enjoy a degree of autonomy, and unless an arbitration agreement is deemed invalid, state courts are obliged to decline jurisdiction over the dispute pursuant to Article II 3 NYC and other international instruments. The contract contained a dispute resolution clause providing for arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre.
A dispute arose and Origin initiated proceedings in the Supreme Court of Tasmania. The Court held that the proceedings should be stayed, at least in part, and that the matter s capable of resolution by way of arbitration referred to arbitration, and invited the parties to consider the practical effects of this determination and to seek any necessary consequential or supplementary orders.
The parties were unable to agree as to the form any such orders should take. The Supreme Court held that those matters involving the third-party equitable interest were not arbitrable. The Court referred the remaining matters to arbitration. Tommy filed a legal action before the High Court of Hong Kong, alleging that the defendants had not performed as required by the contract.
Tommy claimed for breach of a constructive trust for moneys had and received against the first defendant and for breach of contract against the remaining defendants. The defendants moved for a stay of the action in favour of arbitration. The arbitration agreement provided that any dispute between the parties should have been referred to arbitration within 14 days of the dispute arising.
Ma J held that there was a difference between whether a claim was admissible which was an issue resting on whether the day condition precedent had been met and whether the arbitration agreement was capable of being performed. The Court held that the arbitration agreement was capable of being performed and, therefore, it was for the arbitrators to decide whether the claim was admissible despite the expiry of the days limit in the arbitration agreement.
Further, the learned judge held that even the claim in constructive trust against the first defendant, which was not a claim for a breach of contract, arose in connexion with the arbitration agreement and therefore fell to be determined by the arbitral tribunal. The Supreme Court held that the proceedings should be partly stayed and the dispute referred in part to arbitration. In so ruling, it noted that s 7 of the Act required the Court: i to identify the matter s for determination; ii to establish the proper construction of the arbitration agreement; and iii to resolve whether any matter s arising for determination is are capable of settlement by arbitration in accordance with the arbitration agreement.
The Court found that while some of those matters fell within the scope of the relevant arbitral clauses, others did not. It noted the tendency of Australian courts to construe arbitration agreements broadly, emphasising the pro-arbitration bias of the Act and the NYC, to which the Act gave force. The Court also acknowledged the argument that it should not attribute to the parties an intention to have different parts of their dispute resolved before different tribunals.
However, it concluded that where the language clearly leads to a bifurcated dispute resolution process, there was no warrant to depart from it. Finally, the Court held that the matters falling within the scope of the relevant arbitral clauses were capable of settlement by arbitration. It observed that, generally speaking, the statutory powers of a court under the Corporations Act were comparable to the powers exercised by a court under the general law.
A dispute arose and Origin initiated proceedings before the Supreme Court of Tasmania. Origin opposed the application on the basis, inter alia, that certain matters in which a third party had asserted an equitable interest were not arbitrable.
The Supreme Court held that the proceedings should be stayed, at least in part, and the matter s capable of resolution by way of arbitration referred to arbitration. It invited the parties to consider the practical effects of this determination and to seek any necessary consequential or supplementary orders.
II II 3. United States. United States, U. Bankruptcy Court, District of Connecticut. Travelport Global Distribution Systems B. Bellview Airlines Limited. Court of Appeals, Third Circuit. Control Screening LLC. Court of Appeals for the Third Circuit. Court of Appeals, Eleventh Circuit. Milton Escobal v. Court of Appeals for the Eleventh Circuit. Australia, Federal Court of Australia. Casaceli v. Industrie Natuzzi S. Roy David Castillo Arauz v.
District Court, Southern District of Florida. Court of Appeals, Second Circuit. The Republic of Iraq v. Court of Appeals for the Second Circuit. Steve Didmon v.
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