Waiver of a right to arbitrate by resort to litigation, in the context of international commercial arbitration

Peter Gillies, Andrew Dahdal

    Research output: Chapter in Book/Report/Conference proceedingChapter

    Abstract

    This paper examines the cricumstances in which a party to an arbitration agreement may be deemed to have waived its right to arbitrate a dispute comprehended by the agreement, by involvement in litigation concerning this dispute. The focus is on the law in common law jurisdictions, particularly Australia and the United States of America. United Kingdom law will also be briefly surveyed. The paper focuses on the 2006 decision of the Australian Federal Court in Commandate marine Corp v Pan Australia Shipping Pty Ltd, which afforded the topic significant treatment. The theoretical bases for sustaining waiver claims are analysed, including waiver as a discrete doctrine, abandonment, estoppel, election, repudiation of contract and variation of contract. The policies that underlie and inform the development of principles for testing waiver submissions are noted.
    Original languageEnglish
    Title of host publicationInternational law and trade
    Subtitle of host publicationbridging the east-west divide
    EditorsSylvia Mercado Kierkegaard
    Place of PublicationAnkara
    PublisherAnkara Bar Association
    Pages561-580
    ISBN (Print)9788799138524
    Publication statusPublished - 2006

    Keywords

    • waiver
    • election
    • estoppel
    • arbitration

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  • Cite this

    Gillies, P., & Dahdal, A. (2006). Waiver of a right to arbitrate by resort to litigation, in the context of international commercial arbitration. In S. M. Kierkegaard (Ed.), International law and trade: bridging the east-west divide (pp. 561-580). Ankara: Ankara Bar Association.