Waiver of a Right to Arbitrate by Resort to Litigation, in the Context of International Commercial Arbitration

Macquarie Law Working Paper No. 2008-4

18 Pages Posted: 10 Mar 2008

See all articles by Peter Gillies

Peter Gillies

School of Law, Murdoch University, WA

Andrew M. Dahdal

Qatar University - College of Law

Date Written: March 1, 2008

Abstract

This paper examines the circumstances 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 Comandate 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.

Keywords: Waiver, arbitration, litigation

Suggested Citation

Gillies, Peter S. and Dahdal, Andrew M., Waiver of a Right to Arbitrate by Resort to Litigation, in the Context of International Commercial Arbitration (March 1, 2008). Macquarie Law Working Paper No. 2008-4, Available at SSRN: https://ssrn.com/abstract=1103363 or http://dx.doi.org/10.2139/ssrn.1103363

Peter S. Gillies (Contact Author)

School of Law, Murdoch University, WA ( email )

Australia

Andrew M. Dahdal

Qatar University - College of Law ( email )

College of Law
Doha, 2713
Qatar

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