Appointment resisted on basis of alleged invalid arbitration agreement
Quick Take
1On an application under s 11(3) of the Commercial Arbitration Act 2011 (Vic), the court need only be satisfied on a prima facie basis that an arbitration agreement exists; it is not required to determine challenges to the agreement's validity (including forgery, non est factum and formation defences) on the balance of probabilities, as those are matters for the arbitral tribunal under s 16(1) (Kompetenz-Kompetenz).
2Section 11 is narrower than the stay/referral provisions of s 8 of the Act and s 7 of the International Arbitration Act 1974 (Cth): it contains no 'null and void, inoperative or incapable of being performed' proviso, and its finality provision (s 11(5)) reflects the administrative and facilitative character of the appointment function as contemplated by the Model Law drafters.
3Challenges that would void the underlying contract do not necessarily impeach the arbitration clause by reason of the separability principle in ss 16(2)–(3); a respondent must identify an independent ground of impeachment directed to the arbitration agreement itself, and even then, factually complex challenges are generally more appropriate for the arbitral tribunal.
