A party commencing court proceedings in breach of an arbitration agreement in Western Australia should generally expect to pay indemnity costs if the other party successfully obtains a stay and referral to arbitration under s 8 of the Commercial Arbitration Act 2012 (WA). Under s 8 of the 2012 Act, the court has no discretion to refuse a referral to arbitration unless the agreement is null and void, inoperative or incapable of being performed, making it very difficult to resist a stay application. The 2012 Act applies to arbitration agreements formed before its commencement where no arbitral tribunal has been constituted.
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