Technology Arbitrators, Expert Determiners and Mediators

• John Holland Pty Limited v Kellogg Brown & Root Pty Ltd¹⁾

COMMERCIAL ARBITRATION – Commercial Arbitration Act 2010 (NSW) ss 5, 7(1) and 8(1) – arbitration agreement requiring disputes or differences arising out of or relating to the performance or breach of the agreement to be negotiated and if they cannot be resolved by negotiation the parties to confer to ascertain whether they agree that the dispute shall first be subject to an alternative dispute resolution process – further contractual provision that the agreement cannot be varied other than in writing – party A (plaintiff) brings an action in respect of a dispute with party B (first defendant) arising out of or relating to their contract or its breach but also has factually related disputes with non-parties – request by party B under s 8(1) that the parties be referred to arbitration – whether the dispute between the parties to the arbitration agreement is arising out of or relating to their agreement or its breach

CONTRACT – party A claims an oral agreement that the dispute be resolved by court action – whether such an agreement is established

CONTRACTUAL CONSTRUCTION – whether, if established, the agreement is for resolution of the dispute by an alternative dispute resolution process

EQUITY - estoppel - whether party B is estopped from denying the asserted oral agreement or has waived its right to rely on the arbitration agreement

HELD - that the dispute between the parties is one arising out of or relating to the agreement or its breach - no oral agreement as alleged established - Court proceedings are not an alternative dispute resolution process - no estoppel established - no waiver established.

COMMERCIAL ARBITRATION - arbitration agreement requiring parties first to negotiate any dispute then have expert determination as a condition precedent to arbitration - party A brings an action against party C (second defendant) in respect of a dispute with party C arising out of or in connection with their contract or its breach but also has factually related disputes with non- parties - party C seeks a stay of the action alternatively makes a request under s 8(1) that the parties be referred to arbitration - whether the dispute between the parties to the arbitration agreement is arising out of or in connection with their agreement or its breach

CONTRACT - whether arbitration agreement is void for uncertainty

EQUITY - whether party C has waived its right to rely on the arbitration agreement

STATUTORY CONSTRUCTION - whether the arbitration agreement is inoperative within s 8(1) for lack of fulfilment of the condition precedent.

HELD: that the dispute between the parties is one arising out of or in connection with the agreement or its breach – arbitration agreement not void for uncertainty - no waiver established - negotiation is a precondition to arbitration - precondition not yet fulfilled - arbitration agreement presently inoperative - referral to arbitration refused - stay granted.

ORDERS

• Plaintiff and first defendant referred to arbitration pursuant to s 8(1) of the Commercial Arbitration Act 2010 (NSW).
• Plaintiff’s action against second defendant stayed.