Anti-arbitration injunction refused where res judicata, waiver and abandonment required factual and contractual determination before stopping second arbitration.

An anti-arbitration injunction was sought to stop a second arbitration on grounds of constructive res judicata, waiver, abandonment, limitation and inoperability of the arbitration agreement. The court held that strict res judicata did not apply because the earlier arbitration had not decided the incentive-payment claim on the merits. It further found that whether the claim should have been raised earlier, and whether it had been waived or abandoned, depended on disputed facts, contractual interpretation and the accrual of the cause of action, making summary relief inappropriate. The SIAC framework also permitted the tribunal to rule on its own jurisdiction. The injunction application was therefore rejected, and the second arbitration was allowed to proceed.

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Issues: Whether the court should grant an anti-arbitration injunction restraining the respondent from pursuing a second arbitration on the ground that the claim was barred by constructive res judicata, waiver, abandonment, limitation, or inoperability of the arbitration agreement.

Analysis: The earlier arbitration did not adjudicate the incentive-payment claim on merits, so strict res judicata did not apply. The court held that whether the claim ought to have been raised earlier, and whether the respondent had waived or abandoned it, turned on disputed facts, contractual construction, and the timing of accrual of the cause of action. Those questions were not suitable for summary determination in an anti-arbitration injunction proceeding. The SIAC framework also allowed the second arbitral tribunal to rule on its own jurisdiction and to consider an early dismissal or jurisdictional objection. In these circumstances, the court declined to characterise the second arbitration as vexatious or oppressive at this stage.

Conclusion: The application for injunction was not maintainable on the present record and was rejected, leaving the respondent free to pursue the second arbitration.

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