A supplemental settlement agreement that forms part of the underlying contract, preserves its terms unless otherwise stated, does not contain its own dispute resolution clause, and preserves warranties and indemnities does not render an arbitration agreement in the underlying contract inoperative under s 8(1) of the Commercial Arbitration Act 2012 (WA). Filing an unconditional appearance and writing a letter requesting consolidation of proceedings do not constitute a 'first statement on the substance of the dispute' for the purposes of s 8(1). There is no general rule that costs should be awarded on an indemnity basis when proceedings are stayed for breach of an arbitration agreement. The standard of review on a s 8 application (prima facie vs balance of probabilities) was left open.
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