Additional Photography Frederick Johntz
Weeklys Available For Trading As Of 01/07/19
If you drive drunk at 90 miles per hour, at a certain point it doesn't matter how many airbags you have. Glancing at the notes on his lectern, he delivered hope to American homeowners in the throes of the mortgage crisis, about to be rate-adjusted out from under their own roofs. That, of course, was not the best a household head could do, because the number was actually HOPE. The one in Mr. Bush's announcement led to a confused school secretary in Texas. It's no wonder, then, that overseas-based investors and an increasing number of knowledgeable Americans aren't calling anymore, using lulls in volatility to divert their exposure from the real risk--the declining dollar and rotten credit markets--towards what have traditionally been thought of as "high-risk" emerging nations.
The Brazilian market is maturing quickly, instilling confidence in the market's efficiency and in the ability of the market administrator to function as a profitable enterprise during Brazil's sustained growth period. There's no reason to get left out on this upswing in world markets. Intelligent investors will be using the reality of a rate cut not to invest in the illusion of American market returns, but instead to turn to real gains in emerging markets.
In fact, my colleague Ian Cooper over at the Small Cap Trading Pit has been monitoring market movements for years, and he doesn't have the international focus I do.
But to Ian and other technical analysts, the trend is clear. EEM , both of which have weathered troughs this year as Wall Street sagged, only to bounce back vigorously with a drop in the volatility index.
HPPL made an application under s 8 1 of the CAA for an order that the proceeding be stayed and for the parties to be referred to arbitration, pursuant to the arbitration agreements contained in the deeds. It argued that the matters before the Court fell within the scope of the arbitration agreements.
Her Honour held that there were prima facie arbitration agreements and that some of the disputes fell within the scope of those arbitration agreements. The Respondents sought leave to appeal. The end result is that the proceeding was stayed. Thus, the attack on the validity of the arbitration agreement will fall to be determined by the Arbitrator in the first instance subject to review by the supervisory court under s 16 of the CAA.
The trial judge, adopting a narrow interpretation of the arbitration agreements, accepted that several but not all of the matters sought to be agitated by the Applicants fell within the scope of apparently valid arbitration agreements contained in the various deeds.
However, she found that those claims were available to impeach the arbitration agreements under the s 8 proviso. Justice Gleeson identified two competing approaches to the question of the appropriate standard of review:. Provided the court is satisfied, on a prima facie basis, that the matter sought to be ventilated by the plaintiff in the court arguably falls within the scope of an apparently valid arbitration agreement, it will stay the court proceeding and allow the arbitral tribunal to resolve in the first instance any challenge to the existence and scope of the putative arbitration agreement;.
Gleeson J applied a prima facie review approach to the question of the existence of the arbitration agreement, but curiously a full review approach to the question of the scope of the arbitration agreement. As to the third question i. In doing so, her Honour in effect adopted a hybrid approach to the standard of review in respect of this question. That is, sometimes a prima facie approach and sometimes a full review approach, depending on the circumstances. The Full Court acknowledged the two broad approaches to the standard of review on stay applications.
How a judge deals with an application under s 8 of the CA Act will depend significantly upon the issues and the context. Broadly speaking, however, and with some qualification, aspects of the prima facie approach have much to commend them as an approach that gives support to the jurisdiction of the arbitrator and his or her competence, as recognised by the common law and by s 16 of the CA Act , whilst preserving the role of the Court as the ultimate arbiter on questions of jurisdiction conferred by ss 16 9 and 10 , 34 2 a iii and 36 1 a iii of the CA Act.
The only matters capable of constituting a separate attack were the allegations that the Respondents had misled the Applicants by not telling them that the arbitration process would be private and would have to be paid for: The Full Court considered this attack to be of narrow compass: Moreover, it was ill-formulated and lacked apparent strength: Next, the Full Court held that a court entertaining a stay application was not mandated to hear and determine any proviso issues.
In exercising the discretion afresh,  the Full Court considered the following factors at :. Accordingly, the Full Court held that it was preferable to allow the proviso question to be determined by the Arbitrator. Both Singapore and Hong Kong, the leading jurisdictions in the Asia-Pacific, adopt the prima facie standard of review on stay applications.
Both jurisdictions are Model Law jurisdictions. In contrast, the English Arbitration Act is not based on, and contains several important departures from, the Model Law. It would be out of step for Australia to adopt a different standard of review as it undermines the development of regional coherence in the interpretation and application of the Model Law.
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