Fiona Trust in context: interpreting arbitration clauses following Rinehart v Hancock

摘要

The High Court's focus of construing an arbitration clause 'in context' in Rinehart v Hancock did not introduce an avant garde approach to the interpretation of arbitration clauses. Context is and has always been part of contractual interpretation and the interpretation of arbitration clauses. Whilst this article touches on the themes of hermeneutics, which are part of the broader debate between the literalists and liberal-ists, context remains relevant to both sides of the debate. In considering the ongoing relevance of the Fiona Trust Presumption under Australian law, it should be borne in mind that the Fiona Trust Presumption is a rebuttable presumption. It had never been expressed as an absolute irrebuttable presumption and there are clearly circumstances in where it is of limited application based on the factual circumstances. Further, the High Court's focus on 'context' is consistent with the parties' intentions which also underlies the separability and Kompetenz-Kompetenz principles. On this basis, the Fiona Trust Presumption still has ongoing relevance under Australian law. Whether one envisages Lord Hoffman sitting alongside Humpty Dumpty on the wall or standing beside Alice in Wonderland in their dialogue, is a matter still open to debate. It may be that contracting parties might consider it '[b]etter [to] say nothing at all. [As 1]anguage is worth a thousand pounds a word!'.~85 That is an observation which rings true to clients-as well as drafters of contracts. But surely there can be no more debate about hermeneutics on arbitral clauses in circumstances where arbitration clauses are clearly and unambiguously drafted by an arbitration institution (which one would presume not lead to an absurdity).~86 Only time will tell, as even reasonable minds can differ.