AUSTRALIA 30 B

Federal Court of Australia, New South Wales District Registry, 20 December 2006

(Pan Australia Shipping Pty Ltd v. The Ship COMANDATE (NO 2))

20 - 12 - 2006

AUSTRALIA 30 B

Yearbook Yearbook Commercial Arbitration, A.J. van den Berg (ed.), Vol. XXXII (2007)
Jurisdiction Australia
Summary

See also Federal Court of Australia, New South Wales District Registry, 22 August 2006 (Pan Australia Shipping Pty Ltd v. The Ship COMANDATE (NO 2)) AUSTRALIA 30 A

Related topics
201

The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

Scope of arbitration agreement
206

The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.

Exchange of letters or telegrams
208

The court discusses arbitration agreements contained in a sales and purchase confirmation and whether a tacit acceptance thereof is sufficient.

Sales or purchase confirmation
217

The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

Referral to arbitration in general
220

The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

"Null and void", etc.
222

The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

Arbitrator's competence and separability of the arbitration clause
223

The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.

Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
AUSTRALIA 30 B