Arbitrability

Certain issues are incapable of being determined by arbitration. In Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd [2011] NSWSC 268 the Supreme Court of New South Wales discussed the extent to which patent disputes can be arbitrated. It also considers the question of potentially hypothetical disputes.

Larkden: the facts

This was an appeal by the claimant against a ruling by an arbitrator that he possessed jurisdiction over disputes between the parties in respect of a patent licence. The appeal was under s16 of the Commercial Arbitration Act 2010 (NSW) which is more or less the equivalent of s30 of the English Arbitration Act 1996: the section provides that an arbitrator may rule on his own jurisdiction but that an award on the point may be appealed to the court within 30 days.