In Reeves v Alt Advisory (Jersey) Limited and Alt Financial Group Limited [2023] VSC 249 (Reeves), the Supreme Court of Victoria has enforced a private binding foreign arbitral award (arbitral award) issued pursuant to an arbitration agreement contained in an employment contract. The Court, of its own motion (the respondent did not appear in the enforcement proceedings), opined that the award granting an employee’s claims for damages in respect of unpaid wages and housing costs did not give rise to any issues with respect to the arbitrability of the dispute.

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Two recent judgments from different Australian courts have considered circumstances in which insolvency disputes can (or cannot) be arbitrated in accordance with pre-existing arbitration agreements. In particular, the decisions address the following two key issues:

  • when certain insolvency claims can be arbitrated; and
  • when a third party can participate in arbitral proceedings either claiming or defending ‘through or under’ a party to the arbitration agreement.

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Australian Court clarifies approach to scope and arbitrability of ambiguous arbitration agreements

A recent judgment of the Supreme Court of Queensland is a useful reminder of the willingness of Australian Courts to enforce broadly drafted arbitration agreements. The judgment also demonstrates the expansive view taken by Australian Courts with respect to arbitrating non-contractual claims. Whereas often in such cases the issue relates to whether the arbitration agreement is wide enough to capture the substantive dispute, this case is unusual in that the issue was whether the arbitration agreement was too widely drafted, so as to be unenforceable.

In this judgment, Justice Henry concluded that a contract between two Australian entities that contained an arbitration agreement was referrable to arbitration under the Commercial Arbitration Act 2013 (Qld) (CA Act). Consequently, the proceeding was stayed pending the outcome of the arbitration.

Cheshire Contractors Pty Ltd v Civil Mining & Construction Pty Ltd [2021] QSC 75


The applicant, Civil Mining & Construction Pty Ltd (CMC), was the principal contractor for a government roadworks construction project. CMC sub-contracted the respondent, Cheshire Contractors Pty Ltd (Cheshire), to assist with civil engineering on the project (Contract). A dispute arose regarding whether the parties had agreed to depart from the terms of the Contract, such that CMC would make payment to Cheshire for work not contemplated under the subcontract works.

Clause 12 of the Contract contained a multi-tiered dispute resolution clause. If “disputes or differences arising between the parties” (emphasis added) could not be resolved by informal negotiations, executive-level negotiations or mediation, clause 12 required the “disputes or differences” to be referred to arbitration (the Arbitration Agreement). Relevantly, the wording did not qualify the “disputes or differences” by reference to the Contract.

A mediation of the dispute, commenced by Cheshire, was unsuccessful. Cheshire did not refer the dispute to arbitration and instead commenced proceedings in the Supreme Court of Queensland. CMC subsequently filed an application for the proceeding to be stayed and referred to arbitration.


Justice Henry’s decision focussed on whether the arbitration agreement fulfilled specific conditions under ss 7 and 8 of the CA Act and therefore obliged the dispute to be referred to arbitration (equivalent sections exist in international and domestic arbitration legislation throughout Australian jurisdictions).

The issues considered by the judge are broad and likely applicable to the interpretation of both domestic and international arbitration agreements in Australia.

The key issues before Justice Henry were:

  1. Given the wide, unqualified wording of the arbitration agreement, does it indicate an agreement between the parties to submit to arbitration disputes which have arisen between the parties “in respect of defined legal relationship” (an element of the statutory definition of “arbitration agreement”)?
  2. Were Cheshire’s non-contractual equitable and statutory claims subject to the arbitration agreement?

A “defined legal relationship”?

Generally, challenges to the scope of an arbitration agreement tend to focus on whether the terms of the agreement are wide enough to cover the subject of the dispute – for example, in wording such as “arising out of or related to this agreement”. In IBM Australia Ltd v National Distribution Services Pty Ltd (1991) 22 NSWLR 466, for example, the New South Wales Court of Appeal concluded this language indicated an intention for equitable and statutory claims related to the agreement to also be the subject of the arbitration clause.

Unusually, in this case, Cheshire contended that the arbitration agreement failed to qualify or define the “disputes or differences” to which it referred and therefore did not identify a “defined legal relationship”. In other words, the scope of the arbitration agreement was too broad – could it apply to any dispute or difference that could ever arise between these parties under any circumstances whatsoever?

After tracing through a history of relevant English, Australian and New Zealand cases, Justice Henry confirmed that the scope of an arbitration agreement should be construed broadly and informed by the context of the contract as a whole – the very fact that the clause was part of the Contract meant that it should be interpreted to mean disputes or differences relating to the defined legal relationship created by the Contract. Only in exceptional circumstances, for instance where there was no executed agreement between the parties and a lack of intention to be bound, could an arbitration agreement be too vague or uncertain to be enforced.

Claims outside the Contract?

A further point raised by Cheshire was that the substance of its claims against CMC – estoppel by convention, and also a claim for damages under ss 236 and 237 of the Australian Consumer Law to remedy CMC’s unconscionable conduct – were rights it was pursuing outside of the Contract.

Justice Henry observed that, “… a dispute pursuing rights said to arise outside a contract should nonetheless be regarded as arising out of or closely connected with the contract where the dispute turns upon the strict operation of the terms of the contract.” His Honour concluded that there was nothing in the arbitration agreement that suggested it should be read down as applying only to amounts payable under the Contract, as distinct from any amounts otherwise payable by law. This conclusion was distinguished from the scope of arbitration agreements that by their terms are narrowed only to disputes concerning money payable “under the agreement” where Australian courts have held that extra-contractual claims were not referrable to arbitration.

In this case, Justice Henry concluded that because the Contract’s purpose was the performance of paid works, the dispute about payment had a “sufficiently close and consequential connection” with the Contract and was therefore referrable to arbitration under the arbitration agreement. Ultimately, Justice Henry concluded that s 8 of the CA Act required the Court to refer the parties to arbitration in accordance with the arbitration agreement and ordered that the proceeding be stayed.


The decision is a useful reminder of the pro-arbitration stance adopted by Australian courts and should be welcomed by practitioners and commercial parties alike. It also serves to highlight the importance of carefully drafted arbitration agreements that capture the intended scope, including the following principles:

  1. Courts will interpret arbitration agreements broadly, having regard to the context of the contract as a whole.
  2. Notwithstanding that a dispute may relate to rights arising outside the terms of the contract, to the extent the dispute turns upon the strict operation of the terms of the contract, it will likely be regarded as arising out of or closely connected with the contract (unless explicitly excluded or restricted).


Chad Catterwell
Chad Catterwell
Partner, Melbourne
+61 3 9288 1498
Laurence Terret
Laurence Terret
Senior Associate, Brisbane
+61 7 3258 6504
Oliver Cook
Oliver Cook
Solicitor, Brisbane
+61 7 3258 6321


Herbert Smith Freehills has issued the latest edition of its India arbitration e-bulletin.

In this issue, we consider various court decisions which cover topics such as the limitation period for enforcement of foreign awards, the arbitrability of fraud, ‘patent illegality’ as a ground to set aside awards, and granting of interim directions against non-signatories to an arbitration agreement. We also consider India-related bilateral investment treaty news such as the tribunal’s decision in the Vodafone tax dispute and Nissan’s settlement of its claim against India. We also touch on other developments such as updates issued to the Indian Arbitration and Conciliation Act 1996 and the London Court of International Arbitration Rules.

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In Bridgehouse (Bradford No. 2) Ltd v BAE [2020] EWCA Civ 759, the English Court of Appeal upheld a stay of court proceedings in favour of arbitration under s9 of the English Arbitration Act 1996 (the “Arbitration Act”). The issue in dispute related to a company’s claim for relief under section 1028(3) of the Companies Act 2006 (the “Companies Act”), a provision which gives the court the power to give directions to put a previously dissolved but restored company in the same position as if it had never been dissolved.

The Court of Appeal rejected Bridgehouse’s (“BB2”) arguments, finding that the dispute fell within the parties’ arbitration agreement and was capable of arbitration. This decision is significant because it once again confirms the starting presumption that by entering into an arbitration agreement, the parties intend to arbitrate all disputes between them. It also analyses the extent to which disputes that engage public interest factors or may require the involvement of the courts or third parties can be arbitrable.


BAE Systems plc (“BAE”), entered into a contract (“the Contract”) with BB2 under which BAE was to procure the sale to BB2 of two parcels of land for sums totalling £93 million. The Contract stated that if BB2 suffered an “Event of Default”, BAE had the right to terminate the contract. An “Event of Default” included “being struck off the Register of Companies or being dissolved or ceasing for any reason to retain its corporate existence”.

On 31 May 2016, BB2 was struck off the register and dissolved for failure to file its accounts and annual return for the year ended 31 December 2015. BAE gave notice to terminate the Contract on the basis that there had been an Event of Default.

On 24 June 2016, BB2 made a successful application to the Registrar of Companies for administrative restoration. Section 1028(1) of the Companies Act provides that “The general effect of administrative restoration to the register is that the company is deemed to have continued in existence as if it had not been dissolved or struck off the register.” Therefore, BB2 was effectively restored to its pre-dissolution position.

The Contract contained two conflicting dispute resolution provisions. Clause 19.1(a) of the Contract was to apply if “any dispute arises between the parties to this agreement arising out of the provisions of this agreement”, in which case the dispute was to be referred to ad hoc arbitration (the “Arbitration Clause”). Separately, the Contract contained a jurisdiction clause providing that the English courts had exclusive jurisdiction to settle disputes.

BAE initially issued proceedings in the Chancery Division seeking a declaration that the Contract had been validly terminated. However, following BB2’s successful application under section 9 of the Arbitration Act for a stay in favour of arbitration, the matter was referred to arbitration.

The arbitration

The arbitrator determined that BAE had validly terminated the Contract. The Arbitrator rejected, among others, BB2’s contention that any effective termination had to be reassessed retrospectively as a result of BB2’s restoration to the register by virtue of section 1028(1) of the Companies Act. The Arbitrator considered that section 1028(1) did not serve to undo BAE’s decision to terminate the Contract during the period between striking off and restoration.

In its submissions in the arbitration, BB2 reserved the right (if its primary position failed) to make an application to the court for relief under section 1028(3) of the Companies Act, which provides that the court has the power to “give such directions and make such provision as seems just for placing the company and all other persons in the same position (as nearly as may be) as if the company had not been dissolved or struck off the register”.

Chancery Division proceedings

As foreshadowed in its reservation of rights in the arbitration, and following an unsuccessful challenge to the arbitral award under s69 of the Arbitration Act, BB2 issued a claim in the Chancery Division seeking relief under section 1028(3) of the Companies Act.

BAE applied for BB2’s claim to be stayed under s9 of the Arbitration Act, claiming that any such dispute should also be resolved by (a second) arbitration. BB2 opposed this application for a stay, arguing primarily that its claim did not fall within the scope of the Arbitration Clause of the Contract because it did not arise out of the provisions of that Contract. If that was wrong, BB2 contended that the arbitration agreement was “inoperative” because the dispute was not capable of being settled by arbitration, on the basis that either the Arbitration Act or English public policy prohibited the reference of statutory remedies such as this one to arbitration.

The Chancery Division granted a stay in favour of arbitration, and BB2 appealed. The questions for the Court of Appeal were:

  • Did the Arbitration Clause apply to BB2’s claim for relief under section 1028(3) of the Companies Act?
  • Was that application in any event capable of arbitration (in other words, was the dispute “arbitrable”)?

Court of Appeal proceedings

Applicability of the Arbitration Clause

BB2 argued that the issue between the parties no longer arose out of the provisions of the Contract, which was the purported scope of the Arbitration Clause. Instead, the question was whether statutory relief should be granted. BB2 relied in particular on the fact that section 1028(3) of the Companies Act is, in principle, capable of affecting third parties, who would not be bound by the outcome of the arbitration.  BB2 said that made it inherently unlikely that the Arbitration Clause was intended to apply to such matters. BB2 also relied on the exclusive jurisdiction clause in the Contract, which it said was evidence that the parties envisaged some matters would fall outside the scope of the Arbitration Clause and fall to be determined by the courts rather than in arbitration.

In rejecting these arguments and determining that the dispute “arose out of the provisions of the Contract”, the Court of Appeal held as follows:

  1. BB2 only required the relief because BAE had terminated the Contract. The fact that the dispute related to whether relief should be given pursuant to statute did not mean that it did not also arise out of the Contract.
  2. The question of whether BB2 was entitled to relief under section 1028(3) of the Companies Act was intimately connected with section 1028(1), a provision which had already been ruled on by the arbitrator, so it clearly fell within the arbitrator’s remit.
  3. Following Fiona Trust, there was a presumption that the parties are likely to have intended any dispute arising from their relationship to be decided by the same tribunal. It could not be inferred from the existence of the exclusive jurisdiction clause that the Arbitration Clause was of more limited application than it would otherwise be taken to have. The exclusive jurisdiction clause ensured that the English courts would have jurisdiction over issues arising from the arbitration or an expert determination (as the Contract provided that an independent person could act as an expert rather than arbitrator). The Arbitration Clause should therefore be presumed to apply to this dispute.
  4. Very often, and indeed in this case, an application under section 1028(3) of the Companies Act would be of no significance to anyone but the immediate parties. If in a particular case third party interests were engaged, that might have implications for the relief that an arbitrator could grant. But that did not mean that disputes as to the application of section 1028(3) could not fall within the Arbitration Clause at all.


The court considered both whether the Companies Act prohibited reference to arbitration and whether arbitration was precluded by public policy considerations. BB2 argued that applications under section 1028(3) engaged public interest factors which rendered them unsuited to arbitration, which is why Parliament tasked “the court” with granting relief. They were ancillary to applications to restore a company to the register, which could not be determined by arbitration.

The Court of Appeal held that the dispute was capable of arbitration:

  1. There was nothing in the Companies Act which precluded arbitration, including the reference to “the court” in section 1028(3). The fact that an arbitrator cannot grant all the remedies available to a court is not a reason to treat an arbitration agreement as having no effect, and is not determinative of whether the subject matter is arbitrable.
  2. Section 1(b) of the Arbitration Act explains that it is founded on the principle that the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest. Following previous case law, this was a “demanding test”.
  3. Relief under section 1028(3) did not affect company status and an application for such relief would normally be private, affecting only the company and one or more specific individuals or entities. This was comparable to essentially “internal disputes” which were the subject of unfair prejudice petitions under section 994 of the Companies Act, and which had already been held by the English court to be arbitrable.[1] There was a distinction between statutory sections which were motivated by public policy considerations and those which needed to be the subject of court proceedings out of public interest.
  4. Applications under section 1028(3) of the Companies Act were not unsuited to an arbitrator: they required consideration of what directions and provisions were just for placing that company and other persons in the same position as if it had not been dissolved or struck off, which fell within the arbitrator’s capabilities. Although this could lead to procedural complexity (as there would inevitably need to be an order for restoration made by the court), procedural complexity alone would not generally be capable of giving rise to non-arbitrability. Indeed, section 48 of the Arbitration Act provides for an arbitrator to have “the same powers as the court…to order a party to do or refrain from doing anything”.

The Court of Appeal dismissed the appeal.


This case is a further reminder that the English courts will give short shrift to arguments which seek to undermine the parties’ arbitration agreement. Where parties agree to arbitrate, they will be held to their bargain, and the court will construe potentially competing dispute resolution provisions to give effect to that agreement to arbitrate.

The Court of Appeal’s judgment is also significant because it analyses the circumstances in which a dispute is capable of being arbitrated where statutory provisions involving the court are engaged. In addition to drawing a close analogy with Fulham Football Club (1987) Ltd v Richards (where arbitration was held to be available in the context of unfair prejudice petitions under section 994 of the Companies Act), the court also referred to a similar conclusion reached by the Singapore Court of Appeal in Tomulugen Holdings Ltd v Silica Investors, in which it held that minority shareholder claims are arbitrable.

It is clear that exceptions to party autonomy in order to safeguard public interests are subject to a demanding test – they require an impact on company status, and implications beyond the company and any particular counterparty (key examples of non-arbitrable questions being the winding up and restoration of companies). Disputes are likely to be arbitrable where they are private, essentially “internal” in nature and do not affect the “status” of the company. Moreover, procedural complexity or potential impact on third parties are not complete barriers to arbitration, even if some issues will need to be determined by the court.

For more information, please contact Craig Tevendale, Partner, Elizabeth Kantor, Associate, or your usual Herbert Smith Freehills contact.

Craig Tevendale
Craig Tevendale
+44 20 7466 2445

Elizabeth Kantor
Elizabeth Kantor
Senior Associate
+44 20 7466 2406

[1]        Fulham Football Club (1987) Ltd v Richards [2011] EWCA Civ 855, [2012] Ch 333


In an example of an interaction between intellectual property (“IP”) claims and arbitration, the English High Court granted a conditional stay of the claimants’ IP claim pursuant to s9 of the Arbitration Act 1996 (the “Act”) and its inherent case management jurisdiction. In AJA Registrars Ltd and another company v AJA Europe Ltd [2020] EWHC 883 (Ch), the claimants argued that AJA Europe Limited (“AJA Europe”) was using their logo in the UK in the same markets in which one of the claimants, AJA Registrars Limited (“AJA Registrars”) operated, thereby misrepresenting that AJA Europe’s business or services were the business or services of AJA Registrars. AJA Europe successfully applied for a stay, arguing that the underlying dispute between the parties originated from agreements containing an arbitration clause.


The parties

AJA Registrars and AJA Europe entered into a number of agreements, which aligned their businesses in various territories and granted licences to use IP and other rights. AJA Registrars’s parent company, Holding Socotec S.A.S. (“Socotec”, and together with AJA Registrars, the “Claimants”), acquired AJA Registrars’s business in 2018.

The agreements

In particular, AJA Registrars and AJA Europe entered into:

  • an agreement, under which AJA Registrars granted to AJA Europe, until its termination in 2018, a revocable licence to use the “AJA” name (the “License”) in a number of territories, and which prohibited AJA Europe from registering logos or trade marks without AJA Registrars’s consent, which was subsequently amended (the “2014 Agreement”); and
  • an agreement, under which AJA Europe granted to AJA Registrars, until its termination in 2019, the Licence in the UK, and which prohibited AJA Registrars from registering logos and trade marks without AJA Europe’s consent (the “2015 Agreement”, and together with the 2014 Agreement, the “Agreements”).

Each Agreement contained an arbitration clause providing that any dispute or claim arising out of the Agreements was to be referred to arbitration. Socotec was not a party to the Agreements.

The trade marks

In 2018, a UK trade mark using “AJA” in a design was registered in AJA Europe’s name (“AJA Europe’s Trade Mark”). In the meantime, international trade marks using “AJA” were registered in Socotec’s name in 2018 and 2019 (“Socotec’s Trade Marks”).

The IP claim

The Claimants initiated proceedings before the High Court, alleging: (i) infringement by AJA Europe in the UK of Socotec’s Trade Marks; (ii) passing off in the UK by AJA Europe as AJA Registrars’s business or services; and (iii) invalidity of AJA Europe’s Trade Mark.

Stay application

AJA Europe successfully applied to stay the Claimants’ claim, relying on s9 of the Act, and, alternatively, the court’s inherent case management powers. It argued that the dispute was whether and to what extent the Claimants gave AJA Europe permission to use the “AJA” name, and whether any such permission had been terminated. It then argued that this dispute should have been referred to arbitration under the Agreements.

The court’s decision on the stay application

The court concluded that the main issues in the IP claim were (i) the underlying ownership of the “AJA” name rights in the UK; (ii) whether AJA Registrars exclusively owned the goodwill in the UK businesses associated with that name; and (iii) whether AJA Europe’s prior rights meant that there was no misrepresentation. The court noted that although the issues arose in a claim in tort, they reflected issues about entitlement and rights under the Agreements. Specifically, whereas AJA Registrars sought to rely on the 2014 Agreement, AJA Europe’s defence ultimately relied, in particular, on the 2015 Agreement. The court therefore decided that the passing off claim was brought in respect of a matter which was to be referred to arbitration under the 2015 Agreement.

The court noted that there was a sufficiently close connection between the issues in the tort claim and the dispute about the ownership that rational businessmen were likely to have intended such a dispute to be decided (like a contractual dispute) by arbitration, applying the test in Microsoft Mobile Oy v Sony Europe Limited [2017] EWHC 374 (Ch).

Conditions of stay

The court concluded that AJA Registrars’s claim should be stayed under s9 of the Act. Given that there was no arbitration agreement between AJA Europe and Socotec, the court could not stay Socotec’s claim under s9. However the court decided that Socotec’s claim should also be stayed as a matter of discretion and good case management, in order to avoid parallel proceedings.

Both stays were conditional:

  • AJA Registrars’s stay was conditional on AJA Europe appointing an arbitrator in the arbitration proceedings. The court noted that the reference had to relate to the determination of the ownership rights to use “AJA” under the agreements, or otherwise, but it may include other issues.
  • The stay in respect of Socotec’s claim was conditional upon (i) AJA Registrars’s stay being operational; and (ii) AJA Europe sending to the Claimants a draft defence to Socotec’s claim (as AJA Europe’s defence had emerged in an “unsatisfactory and piecemeal way”). The court accepted that AJA Europe should not be compelled to disclose the substance of the dispute to the public, given that the matters are to be arbitrated, and therefore remain confidential.

Arbitrability of IP claims

The court also noted that there was “the faintest of issues” about whether an IP claim could be referred to arbitration, on the basis that there was certain relief that only the court or the UK Intellectual Property Office could grant. The court reiterated that (i) this is not an impediment to an arbitrator determining the substance of the dispute and the underlying issues; and (ii) as part of the award the arbitrator can direct the parties to make necessary applications for the required relief.


This case is an interesting example of the potential interplay between IP claims and arbitration. While IP claims are mainly litigated in national courts, there has been an increase in the use of arbitration clauses in licence agreements and, therefore, of the arbitration of IP disputes. The decision confirms that the English courts will usually view contractual IP disputes as arbitrable.

For more information, please contact Chris Parker, Partner, Olga Dementyeva, Associate, or your usual Herbert Smith Freehills contact.

Chris Parker
Chris Parker
+44 20 7466 2767

Olga Dementyeva
Olga Dementyeva
+44 20 7466 7644


Hong Kong judge defers to arbitration in dismissing winding up petition

In a recent Court of First Instance case before Harris J, Southwest Pacific Bauxite (HK) Ltd (Company) sought to strike out a winding-up petition issued against it by Lasmos Ltd (Petitioner). The ground of insolvency relied on by the Petitioner was a statutory demand of US$259,700.48 (Debt), arising out of a management services agreement (MSA) between the Company and the Petitioner (Parties). The Company disputed the Debt.

The issue in this case was the impact of the arbitration clause in the MSA on the exercise of the court’s discretion to make a winding-up order.
Lasmos Ltd v Southwest Pacific Bauxite (HK) Ltd [2018] HKCFI 426

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Recent developments in India-related international arbitration

Herbert Smith Freehills has issued the latest edition of its Indian international arbitration e-bulletin. In this issue we will consider Indian court decisions, including the arbitrability of allegations of fraud and non-arbitrability of trust disputes by the Supreme Court. We have also considered various decisions in which the Delhi High court shows restraint in relation to interfering with offshore arbitrations, while also making decisions that demonstrate the observance of formalities by the court which could be construed as not pro-arbitration, including refusing to enforce an arbitration clause in an unsigned agreement. In other news, we consider the rise of institutional arbitration in India and India-related bilateral investment treaty news. Further, we discuss the imminent launch of a new edition of our Guide on India-Related Contracts Dispute Resolution.

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Hong Kong confirms IP rights are arbitrable

Hong Kong has now enacted amendments to its Arbitration Ordinance (Cap. 609), clarifying that disputes over intellectual property rights (IPRs) may be resolved by arbitration and that it is not contrary to Hong Kong public policy to enforce arbitral awards involving IPRs.

The bill effecting the amendments, Arbitration (Amendment) Bill 2016 (Bill), was first introduced in December 2016 and was passed in substantially the same form on 14 June 2017. For more detail, see our previous blog post containing a summary of the main provisions of the Bill here. The amendments are due to come into operation on 1 October 2017.

This is a positive development that should progress the Hong Kong Government's stated aim of achieving an edge over other jurisdictions in the Asia-Pacific region as a venue for settling IPR disputes.