Sydney Jacobs, Barrister at 13 Wentworth Chambers and Vikram Misra, Barrister at Clarence Chambers write about what to expect in their upcoming series covering the practical perspectives and additional commentary on arbitration and mediation.
In these series of articles, Sydney Jacobs (Barrister – 13 Wentworth Chambers) and Vikram Misra (Barrister – Clarence Chambers) will provide practical perspectives and commentary on ADR, including arbitration and mediation. This article flags issues we see as topical and maps out some of the areas we areas we propose to write on in future updates.
Tucked away in the back of most commercial contracts will often be a clause requiring the parties to attend arbitration or other ADR process, often mediation, before commencing litigation. Non-compliance with these contractual provisions may result in a stay of curial or Tribunal proceedings until they have been complied with, not only adding to the costs of the litigation if overlooked, but also allowing the applicant for the stay (if successful), to draw first blood in forensic skirmishing.
There is no legislative basis for enforcing dispute resolution clauses otherwise than those that provide for arbitration. Arbitration is governed by the Commercial Arbitration Act 2010 (NSW) applying to domestic arbitrations and in some cases the International Arbitration Act 1974 (Cth). A more fulsome analysis of these statutes will be undertaken in future articles.
Much litigation regarding arbitration involves applications to stay curial proceedings to give effect to an arbitration clause, see for example the saga of Rinehart v Hancock Prospecting [2019] HCA 13 (‘Rinehart’). In other words, one party to the arbitration agreement initiates proceedings in court (or perhaps, a Tribunal), where the matter is then subject to the full glare of publicity and not confidential, as it would be in an arbitration. The other party to the arbitration agreement then invokes the arbitration clause, and seeks a stay of the curial proceedings. Rinehart settled at High Court level, the long standing issue of the compass of the well worn prepositions, namely a dispute arising ‘under’ an arbitration agreement or ‘hereunder’. This dispute is to be approached on the basis of the objective analysis articulated in Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
If the parties have entered into an agreement to conciliate or mediate their dispute, the Court may, in principle, make orders achieving the enforcement of that agreement as a precondition to commencement of proceedings in relation to the dispute: Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996. As such, general common law doctrines of contractual interpretation will impact upon the enforceability of a general ADR clause, including whether the clause is sufficiently certain (not an agreement to agree), as well as whether the issue in dispute falls within the ambit of the clause.
In future articles, we will flesh out these issues, say a lot more about the Rinehart case, and also cover other topical areas, such as enforcement of an arbitral award, setting aside arbitral awards, the powers and jurisdiction of an arbitrator and general procedure in arbitration, for example, how to issue a subpoena or seek security for costs.
We welcome suggestions as to topics, feedback and positive criticism to sjacobs@13wentworth.com.au or counsel@vikrammisra.com.
With over 20 years’ experience as a barrister, Sydney Jacobs practices in the areas of commercial law and equity, real property and building and construction law. He has acquired experience in the area of easements: he has obtained easements for applicants and otherwise appeared in the cases listed below, has a number of current matters in the NSW Equity Division Real Property List being case -managed to final hearing 2018 and is briefed in certain easement matters being worked up for filing in Court. Prior to being called to the Bar, Sydney was a solicitor in the well -known firms listed below, as a commercial litigator with a construction law focus. Sydney has experience in acting for clients seeking or opposing easements and clients whose rights of way have been impeded by neighbours. You may connect with Sydney via email sjacobs@13wentworth.com.au or LinkedIn
Vikram Misra was admitted as a solicitor in 2012 and called to the NSW Bar in 2015. He maintains a broad commercial practice and is regularly briefed in matters relating to taxation law, property law, construction law and equity. Vikram has completed a Graduate Diploma in Taxation Law at the University of Sydney in 2015 and a Master of Laws majoring in construction law and contract law at the University of Melbourne in 2016. You may connect with Vikram via email counsel@vikrammisra.com or LinkedIn
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