Arbitration Clause And Separability Of Arbitration

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Arbitration is a form of dispute method that seeks to bind parties to the arbitration. Lord Bingham defines arbitration being an “appointment of an independent arbitrator, often chosen by the parties, to rule on their dispute according to the terms of reference they give him. This can only be done by agreement, before or after the dispute arises, but where it is done the arbitrator has authority to make an award which is binding on the parties and enforceable by process of the courts”. Arbitration differs from litigation as only the parties to an arbitration agreement may be subject to the jurisdiction of the arbitrator. Whereas in litigation parties may be brought into ligation despite there will of not wanting to be involved.

Concept …show more content…

The parties in the contract must look at the content arbitration clause. In John Holland Pty Ltd v Kellogg’s Brown & Root Pty Ltd (2015) it was held that the parties must look at the arbitration clause as disputes arise “under” or arising out of” or “in connection with” the contract. In 1144 Nepean Highway Pty Ltd v Leigh Marden Australasia Pty Ltd [2009] VSC 226 it was held that the words ‘arising out of’ can generally be given a wide …show more content…

The House of Lord in the UK took the approach that an agreement to arbitrate an intention to have all disputes relating to a contract including it legality resolved by arbitration. In Victoria we take the approach taken in TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2009] VSC 553 “In case there is any breach of the provisions under this Agreement by either party during the effective period of this Agreement the parties hereto shall, first of all, try to settle the matter in question as soon and amicable as possible to mutual satisfaction or if not so settled within 60 days such matters will be referred to arbitration in Territory for resolution”. Justice Hargrave determined that the wording in the TCL limited the dispute clause as it arose under the distribution agreement and Justice Hargrave made it clear by saying that the interpretation of such clauses was not subject to any

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