When Is An Arbitration Agreement Inoperative
ASES Havacilik Servis ve Destek Hizmetleri AS/Delkor UK Ltd  EWHC 3518 (Comm), a decision of Hamblen J, was essentially a factual issue, two arbitration clauses of which were imposed in the documents submitted by each of the parties. The main interest of the case lies in the scholarly judge`s reconciliation with the formalities of an appeal against jurisdiction under Section 67 of the Arbitration Act 1996. … [A] s, for example, if the arbitration award has been overturned or if the arbitrator is deadlocked at the time of the vote or if the award has not been rendered within the prescribed time frame. In addition, it suggests that an agreement prior to the commencement of the arbitration process may have the effect of the inaction of the arbitration agreement, although it has a U.S. decision that leaves this issue to the arbitrators. The case concerned a design and construction contract with a dispute settlement clause in which the parties agreed to refer disputes to arbitration. It was agreed that the clause was an arbitration agreement within the meaning of the law. The contractor (Bulkbuild) filed a complaint in the Supreme Court of Queensland, including against the owner in connection with the construction contract (Fortuna).
Fortuna requested a stay of proceedings against him on the grounds that the contract contained a valid arbitration agreement. Section 8 of the Act requires the court to refer the parties to arbitration as long as there is an arbitration agreement that is not null or void, ineffective or unfit to be enforced. If the parties have not agreed on an arbitrator within an additional 14 days, the arbitrator is appointed by the arbitrator in point 32 (a). Arbitration is conducted in accordance with the provisions of item 32 (b). “The term “inoperable” may be considered applicable in cases where the arbitration agreement is no longer valid. Stopping the effect on the arbitration agreement can occur for a number of reasons. One reason could be that the parties implicitly or explicitly revoked the conciliation agreement. Another may be that the same dispute between the same parties has already been resolved in the context of arbitration or legal proceedings (legal principles…). After much uncertainty, it is now a determined right that, if there is a challenge to the validity of the material contract between the parties, the arbitration clause survives such a challenge and arbitrators are free to determine the validity or not of the contract. It is only if the compromise clause is independently challenged that the court itself has the power to intervene. This is noted by Tomlinson J.A. in El Nasharty/J Sainsbury plc (No.
2)  EWHC 2618 (Comm), where the assertion that the main agreement is tainted by duress does not violate the compromise clause it contains, thus, under the 1996 Arbitration Act, the suspension of judicial proceedings on the burden of coercion is far from inevitable. Redfern and Hunter on International Arbitration (5th edition), published by Oxford University Press, explained the meaning of these words “inoperable or unable to perform” in the New York Convention: “At first glance, it is difficult to identify a distinction between the terms “inoperable” and “unfit to be performed.” However, a compromise clause is no longer valid if, for example. B, it is inoperative by the parties` failure to comply with a delay, or if the parties have implicitly revoked the arbitration agreement by their conduct.