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AUSTRALIA 6 A
High Court of Australia, 13-14 September 1989 (Tanning Research Laboratories Inc. v. O’Brien)
AUSTRALIA 6 A
An AAA award had established, inter alia, that Hawaiian had failed to timely pay for goods received under a license agreement. Tanning had then lodged a proof of debt with the liquidator of Hawaiian, which had been wound up, but the liquidator had rejected Tanning’s proof of debt. The court of appeal held the proceedings should be stayed pursuant to Section 7(2) of the International Arbitration Act 1974 and the matter referred to arbitration. By the present decision, the High Court dismissed Tanning’s appeal, finding that the liquidator was a person claiming “through or under” Hawaiian within the meaning of Section 7(2). It reasoned that to exclude from the scope of an international arbitration agreement binding on a company matters between the other party to that agreement and the company’s liquidator would give such agreements an uncertain operation.
See also High Court of Australia, 6 March 1990 (Tanning Research Laboratories Inc. v. O’Brien) AUSTRALIA 6 A
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.
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.