Arbitration clauses and summary judgment: what to do when you don't think there is a dispute

Introduction

Arbitration clauses are increasingly used in commercial agreements and in leases. One question that often arises in situations where there is an arbitration clause is what claimants should be doing when it does not think the defendant has a defence? Usually the claimants have proceeded to Court under the summary judgment procedure¹; however the Supreme Court in Zurich Australian Insurance Limited t/a Zurich New Zealand v Cognition Education Limited² has now closed off this option.

The decision will have significant practical implications for parties. The summary jurisdiction is not often used in arbitrations and the reasons for that appear to be both principled and practical.