Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd

(2013) 298 ALR 666; [2013] WASCA 66

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Arbitration
2. › International commercial arbitration
3. › Arbitration agreement
4. › Construction of arbitration clause
5. › Scope of disputes covered
6. › Whether escrow payment dispute fell within mandatory arbitration clause
7. › Broad and liberal construction of arbitration agreements
8. › Single forum presumption
1. Arbitration
2. › International commercial arbitration
3. › Stay of proceedings
4. › Conditions on stay
5. › Power of court under s 7(2) International Arbitration Act 1974 (Cth)
6. › Whether payment into escrow could be imposed as condition of stay
7. › Conditions must be incidental and ancillary to holding parties to arbitration agreement
1. Arbitration
2. › International commercial arbitration
3. › Interim orders by court
4. › Power under s 7(3) International Arbitration Act 1974 (Cth)
5. › Preservation of rights of parties
6. › Whether order for payment into escrow was interim or supplementary order in relation to property subject of dispute
7. › Distinction between preserving and enforcing rights
8. › International Arbitration Act 1974 (Cth), ss 7(2), 7(3)
1. Arbitration
2. › International commercial arbitration
3. › Relationship between national courts and arbitral tribunals
4. › Court's limited role when parties have agreed to arbitrate
5. › Sparing exercise of interim powers
6. › Deference to arbitral tribunal
7. › International Arbitration Act 1974 (Cth), ss 2D, 7, 39
8. › UNCITRAL Model Law, Arts 9, 17J

Quick Take

A court exercising powers under s 7 of the International Arbitration Act 1974 (Cth) cannot make interim or supplementary orders that would effectively resolve a dispute which the parties have agreed to refer to arbitration. The power under s 7(3) is limited to preserving rights pending arbitration, not enforcing them. Conditions on a stay under s 7(2) must be machinery conditions incidental to holding parties to their arbitration agreement, not conditions that determine substantive rights. Where there is no urgency and the arbitral tribunal will have power to grant equivalent relief, the court should exercise its interim powers sparingly and defer to the arbitral tribunal.