Volume 27 (2010) / Issue 2
Article II(3) of the New York Convention requires a court to enforce an arbitration agreement unless it is “null and void, inoperative or incapable of being performed.” It is widely accepted that a party can waive its right to arbitrate a dispute and that this constitutes an instance where the arbitration agreement becomes “inoperative.” What is more difficult to discern is what conduct by a party will amount to a waiver of its right to arbitrate. This article examines the rich body of case law that has developed in Australia on waiver. It also surveys certain preliminary questions and more generally the exceptions to enforcement of an arbitration agreement contained in the New York Convention.
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