INTERNATIONAL ARBITRATION — arbitration agreement — stay of proceedings — whether claims required to be stayed under s 7(2) International Arbitration Act 1974 (Cth) — claims in tort, contract, and for misleading or deceptive conduct — scope of arbitration clause — arbitrability — whether waiver deemed agreement “inoperable” under s 7(5) — non-parties to arbitration agreement — whether non-parties claiming “through or under” for purposes of s 7(4)
PRIVATE INTERNATIONAL LAW — jurisdiction — non-exercise of jurisdiction — foreign exclusive jurisdiction clauses — discretionary stay “as a matter of convenience” under s 67 Civil Procedure Act 2005 (NSW) — where not all parties to proceedings bound by clause — whether non-parties entitled to rely on exclusive jurisdiction clause
Quick Take
1Where an arbitration clause uses broad connecting language ('arising out of or in relation to or in connection with this Agreement'), claims in tort, under the Australian Consumer Law, and for breach of a collateral inter partes undertaking given in connection with the agreement all fall within the scope of the arbitration agreement for the purposes of s 7(2) of the International Arbitration Act 1974 (Cth), and are not confined to claims for breach of the agreement itself.
2Participation in an urgent interlocutory hearing and the giving of inter partes undertakings to avoid interlocutory relief does not constitute a deliberate, intentional and unequivocal abandonment of the right to insist on arbitration, and does not render the arbitration agreement 'inoperative' under s 7(5) of the International Arbitration Act 1974 (Cth), particularly where the party expressly reserved its position on jurisdiction.
3Where claims against non-parties to an arbitration agreement are closely connected with claims mandatorily stayed under s 7(2), the court may grant a temporary discretionary stay under s 67 of the Civil Procedure Act 2005 (NSW) pending the arbitration, deferring the question of permanent stay until the claims and defences are sufficiently defined to permit analysis of whether the non-parties are claiming 'through or under' a party within s 7(4).
