An application for security for costs, premised on the litigation proceeding to trial and the applicant incurring costs in that litigation, constitutes an unequivocal abandonment of the right to seek a stay in favour of arbitration, rendering the arbitration agreement 'inoperative' under s 7(5) of the International Arbitration Act 1974 (Cth). By contrast, participation in interlocutory injunction applications, directions, and mediation does not constitute such waiver. The question whether a party must prove the content of foreign law governing the arbitration agreement was left open.
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