New South Wales Court of Appeal - Decisions of Interest Search - Area of law: Arbitration and ADR


  1. 09/02/2016
    Arbitration and ADR: application for leave to appeal; enforcement of foreign arbitral award declaring certain agreements to be rescinded and ordering the return of purchase price with interest and costs; whether award should not be enforced because enforcement contrary to public policy; International Arbitration Act 1974 (Cth) s 8(7)(b); whether primary judge erred in concluding that award did not provide for double recovery; whether court has discretion to enforce arbitral award even if contrary to public policy.
    Gutnick v Indian Farmers Fertiliser Cooperative Ltd  [2016] VSCA 5
  2. 11/08/2015
    Arbitration and ADR: international commercial arbitration; enforcement of foreign award under the International Arbitration Act 1974 (Cth) s 8; breach of rules of natural justice; severance; partial enforcement of award; whether part of the award was incapable of severance such that no part should be enforced
    Aircraft Support Industries Pty Ltd v William Hare UAE LLC  [2015] NSWCA 229
  3. 12/03/2015
    Arbitration and ADR: enforcement of foreign arbitration award; International Arbitration Act 1974 (Cth) ss 2D, 8 and 39; Arbitration List judge acceded to an application made under s 8(2) of the International Arbitration Act 1974 (Cth) to enforce arbitral award as though it were a judgment of the Supreme Court of Victoria; effect of award to prevent appellants from taking action to deprive respondent of entitlement to participate in 2015 Formula One season; whether judge erred in failing to take account of public policy in enforcing award; whether terms of award uncertain; whether making of award amounted to breach of natural justice; whether enforcement of award would be futile; William Hare UAE LLC v Aircraft Support Industries Pty Ltd [2014] NSWSC 1403 distinguished; no real unfairness or real practical injustice in award; Court should reject disguised attack on legal conclusions of arbitrator; errors of fact or law not a basis for curial intervention; appeal “dressed up as a complaint about natural justice”; appeal dismissed 
    Sauber Motorsport AG v Giedo van der Garde BV & Ors  [2015] VSCA 37
  4. 06/08/2014
    Arbitration and ADR: enforcement of foreign arbitration agreement; application for stay of third party proceeding; claimant in third party proceeding not a party to arbitration agreement; third party notice; whether the claims in the third party statement of claim were a ‘matter...capable of settlement by arbitration’ for the purposes of International Arbitration Act 1974 (Cth) s 7(2); whether claiming ‘through or under’ within the meaning of s 7(4); s 7(4) enlarges the definition of ‘a party to an arbitration agreement’ by deeming persons claiming ‘through or under’ a party to be themselves parties to that agreement; Trustees of the Sydney Grammar School v Winch [2013] NSWCA 37 discussed; appeal allowed
    Flint Ink NZ Ltd v Huhtamaki Aust Pty Ltd L & Anor  [2014] VSCA 166
  5. 01/07/2014
    Arbitration and ADR: respondent franchisee commenced proceedings in Victorian Civil and Administrative Tribunal (VCAT) against appellant franchisor; franchise agreement contained arbitration clause; Commercial Arbitration Act 2011 (Vic) enacted Model Law of United Nations Commission on International Trade Law; Model Law enacted as uniform law throughout Australia; whether s 8 of the Act precluded VCAT from determining proceedings and required VCAT to refer parties to arbitration; answer depended upon whether VCAT was a ‘court before which an action has been brought’ within meaning of s 8; special rules for construction of statutes implementing international agreements, as well as text, context and purpose of Act, supported conclusion VCAT a ‘court’ within meaning of Act; VCAT precluded from determining matter and required to refer matter to arbitration; appeal allowed
    Subway Systems v Ireland  [2014] VSCA 142
  6. 03/10/2013
    Arbitration and ADR: arbitration; application for leave to appeal against interlocutory decision dismissing application to stay proceedings and refer them to arbitration; arbitration clause in deed applicable where ‘disputes under this deed’; whether releases and undertakings in deed foreclosed claims in equity proceedings; whether certain of the claims constituted claims covered by the deed when they had not been communicated prior to the date of the deed; whether outcome of equity proceedings claims ‘governed or controlled’ by deed
    Rinehart v Hancock  [2013] NSWCA 326
  7. 26/11/2012United States
    Arbitration and ADR: requirement that arbitrator, and not court, decide dispute concerning validity of underlying contract; national policy in Federal Arbitration Act 9 U.S.C §1 favouring arbitration; ruling by Oklahoma Supreme Court that noncompetition agreements in employment contracts subject to arbitration clauses null and void contravened basic tenet of Act’s substantive arbitration law; Oklahoma Supreme Court assumed role of arbitrator by ruling upon validity of underlying agreement, in circumstances where arbitration clause not found to be invalid; matter before Oklahoma Supreme Court subject to Federal Arbitration Act and Court could not say that underlying contract’s validity purely a matter of State law
    Nitro-Lift Technologies, L. L. C. v. Howard (No. 11-1377)   568 U.S. ____ (2012)
  8. 21/02/2012United States
    Arbitration and ADR: Arbitrability of claims alleging personal injury or wrongful death against nursing homes; whether arbitration clause in nursing home admission agreement contrary to public policy; legislation of State of West Virginia prohibiting agreements to arbitrate personal injury and wrongful death claims; interaction with Federal Arbitration Act (FAA); Supreme Court of Appeals of West Virginia erred in construction of FAA requiring courts to enforce arbitration agreements; arbitration required
    Marmet Health Care Center, Inc. v. Brown  565 U. S. ___ (2012)
  9. 10/01/2012United States
    Arbitration and ADR: Arbitrability of dispute between credit card holders and corporation for alleged violations of Credit Repair Organisations Act (CROA); in absence of provision of CROA prohibiting arbitration, arbitrability to be assessed according to Federal Arbitration Act (FAA); liberal policy in FAA favouring arbitration; language in CROA stating "You have a right to sue a credit repair organization" that violates CROA insufficient to prevent disputes being settled by arbitration
    CompuCredit Corp. v. Greenwood  565 U. S. ____ (2012)
  10. 07/11/2011United States
    Arbitration and ADR: Enforcement of arbitration clause; refusal of Delaware State court to compel arbitration on any of four claims based solely on finding that two of the claims were nonarbitrable; where dispute involves multiple claims, some arbitrable and some not, arbitrable claims must be sent to arbitration
    KPMG LLP v Robert Cocchi et al  US __ (2011)