Consultation Paper on Alternative Dispute Resolution - Law Reform ...

―... all disputes... shall be resolved exclusively and finally by binding
arbitration among the parties. It is specifically understood and agreed
that any dispute may be submitted to arbitration regardless of
whether such dispute would otherwise be considered justiciable or
ripe for resolution by a court.‖
7.18 This was, therefore, already an arbitration clause and the Supreme
Court ordered that the proceedings should be stayed pursuant to section 5 of
the Arbitration Act 1980. But the decision is of interest in the ADR context
because Keane CJ adopted the following comments of Lord Mustill in Channel
Tunnel Group Ltd v Balfour Beatty Construction Ltd: 24
―I believe that it is in accordance, not only with the presumption
exemplified in the English cases cited above that those who make
agreements for the resolution of disputes must show good reasons
for departing from them, but also with the interests of the orderly
regulation of international commerce, that having promised to take
their complaints to the experts, and if necessary to the arbitrators,
that is where the respondents should go.‖ 25
7.19 It is notable that Keane CJ stated that in the Via Networks case:
―While, as the passage makes clear, in that case the contract was
one which was more characteristic of the high-level world of
international commerce than the agreement now under
consideration, I have no doubt that the general principle is equally
applicable to the agreement in this case.‖
7.20 In that respect, the Court in the Re Via Networks case suggests that
the well-established rule as to staying proceedings on the basis of an arbitration
clause which has strong statutory backing in section 5 of the Arbitration Act,
1980 can be applied in the context of any ADR clause.
7.21 This view is explicitly stated in the English case of Cable and
Wireless plc v IBM plc. 26 In this case, Colman J held that a clause that
specifically referred disputes to ADR, but was vague in terms of the precise
procedure that should be used, was enforceable. He stated:
24 [1993] AC 334.
25 Ibid. at 353.
―For the courts now to decline to enforce contractual reference to
ADR on the grounds of intrinsic uncertainty would be to fly in the face
of public policy as expressed in the CPR [post-Woolf Civil Procedure
26 [2002] EWHC 2059 Comm.
237