Australian Granites Ltd v Eisenwerk Hensel Bayreuth Dipl-ing Burkhardt GmbH

[1999] QCA 242

Queensland Court of Appeal

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Interrogate

Catchwords

1. Arbitration
2. › International commercial arbitration
3. › Stay of court proceedings
4. › Mandatory stay under s 7(2) International Arbitration Act 1974 (Cth)
5. › Whether parties agreed to settle disputes otherwise than in accordance with Model Law
6. › Agreement to ICC Rules of Conciliation and Arbitration
7. › Whether such agreement excludes Model Law under s 21
8. › International Arbitration Act 1974 (Cth), ss 7, 16, 21
1. Arbitration
2. › International commercial arbitration
3. › Stay of court proceedings
4. › Waiver of right to stay
5. › Whether delivery of defence constitutes waiver
6. › Whether failure to seek stay at earlier hearing constitutes waiver
7. › International Arbitration Act 1974 (Cth), s 7(2)
1. Estoppel
2. › Anshun estoppel
3. › Application to interlocutory decisions
4. › Whether Anshun principle applies where earlier decision was not final
1. Evidence
2. › Judicial notice
3. › Content of ICC Rules of Conciliation and Arbitration
4. › Whether judicial notice may be taken of rules of internationally recognised arbitration institution

Quick Take

An agreement to arbitrate under ICC Rules constitutes an agreement to settle disputes 'otherwise than in accordance with the Model Law' for the purposes of s 21 of the International Arbitration Act 1974 (Cth), with the consequence that s 7(2) (mandatory stay) rather than Article 8 of the Model Law governs the right to a stay of court proceedings. Delivery of a defence under threat of default judgment, accompanied by express reservation of the right to arbitrate, does not constitute waiver of the right to a stay. The Anshun estoppel principle does not apply to interlocutory decisions.