A chance to change course?
I have now written a more detailed post on this topic – read it here.
The High Court of Australia may soon clarify the standard of review on applications to stay court proceedings in favour of arbitration in Australia, in an appeal from Oil Basins Ltd v Esso Australia Resources Pty Ltd [2026] VSCA 6. The High Court recently granted special leave to appeal.
Australia is currently not fully aligned with the prevailing approach across the region. On a stay application, courts in Model Law jurisdictions will generally consider the validity and effectiveness of the arbitration agreement on a prima facie basis only – for example, Tomolugen Holdings v Silica Investors [2015] SGCA 57 and Techteryx v Legacy Trust [2025] HKCFI 665.
The current leading Australian judgment does not accept the prima facie approach per se, while appearing to accept its underlying policy and logic, albeit with reservations: Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170 [145]. I hope that the High Court takes this opportunity to definitively adopt the prima facie standard, and eliminate one of Australia’s eccentricities as an arbitral seat.
The High Court may also address another interesting, albeit somewhat esoteric, question: can an arbitration agreement validly require that questions of jurisdiction and scope be dealt with by the courts of the seat alone, and not by the arbitral tribunal? So far, it is a hard ‘no’, according to Hon Justice Clyde Croft at first instance and the Victorian Court of Appeal.
To my knowledge, this specific question has not been squarely decided in a judgment from the major arbitral seats in the region. However, Malini Ventura v Knight Capital [2015] SGHC 225 may give some indication of how this question would be approached in Singapore, and in Hong Kong, where the judgment has been applied. Prakash J noted that the Model Law deliberately omitted the possibility of jurisdiction being determined by the court, and then the tribunal, in order to prevent dilatory tactics: [27].
Like many others in the arbitration community down under, I eagerly await the High Court’s judgment.
