Arbitration – the right to arbitrate

Generally, only parties to an arbitration agreement are likely to participate in the arbitration. However, this issue has recently been considered by the NSW Supreme Court in King River Digital Assets Opportunities SPC v Salerno [2003] NSWSC 510 (King River v Salerno), which has expanded who and why a non-party may become a participant.

Firstly, in order to arbitrate the parties are required to agree that arbitration is a suitable dispute resolution process. The most common way to do this is to include an arbitration clause in the agreement or contract governing the relationship between the parties.

Whilst the form of an arbitration clause can vary, there are a number of items that should be included: