Anti-arbitration injunction sought by plaintiff to restrain defendant solicitors pursuing ad hoc international arbitration under the UNCITRAL Rules – Written retainer agreement constituted by several documents – Apparent tension between arbitration agreement in one document and the clause by which parties submitted to the exclusive jurisdiction of the courts of Western Australia in another document
Plaintiff contends retainer incorporates a promise not to arbitrate disputes, relying on the exclusive jurisdiction clause
Defendant solicitors place reliance on detailed arbitration agreement within retainer
Quick Take
1Where a multi-document retainer contains both a detailed arbitration agreement in the primary terms of business and an exclusive jurisdiction clause in supplementary additional terms, the arbitration agreement is not necessarily displaced; the exclusive jurisdiction clause may be construed harmoniously as conferring supervisory jurisdiction on the nominated court rather than as a promise not to arbitrate.
2In construing multi-document contracts without a hierarchical precedence clause, the court will have regard to the language of incorporation (including whether supplementary documents are described as 'supplementing' rather than 'amending' or 'replacing' the primary terms), the relative specificity and detail of competing provisions, and the objective intention revealed by the instrument as a whole.
3Australian courts do not approach the construction of arbitration agreements with any predisposition in favour of arbitration, but the detailed and deliberate drafting of an arbitration regime will weigh against a construction that deprives it entirely of effect in favour of a broadly worded exclusive jurisdiction clause in a supplementary document.
