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Just no choice

Just no choice

By John Sharkey


Practitioners familiar with applications under the Commercial Arbitration Act 1984 (Vic) for the stay of curial proceedings brought in the face of an arbitration agreement encountered a new world on 17 November 2011 when the Commercial Arbitration Act 2011 (the Act) came into operation. Gone was the discretionary power in the court to stay proceedings if the parties were subject to an arbitration agreement. Section 8 of the Act removed the court’s discretion to decline to grant a stay in language that rendered the provision mandatory. Since its enactment we have seen a continuing growth in judicial consideration of the Act and it has been s8 that has received most attention. Of course, the Act is part of uniform legislation of the states and territories but the Supreme Court of Victoria in five judgments to date has made, and continues to make, its own unique contribution to the existing body of law on the subject of applications to stay curial proceedings in the context of commercial arbitration.

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