Zoo Property Wealth Builder Pty Ltd v Australia Red Hill Real Estate Group Pty Ltd [2026] VSC 509

IN THE SUPREME COURT OF VICTORIA

Not Restricted

Commercial Court

ARBITRATION LIST

S ECI 2025 05675

ZOO PROPERTY WEALTH BUILDER PTY LTD (ACN 145 738 870)	Applicant
v
AUSTRALIA RED HILL REAL ESTATE GROUP PTY LTD (ACN 616 390 035)	Respondent

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JUDGE:	Croft J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2026
DATE OF JUDGMENT:	11 August 2026
CASE MAY BE CITED AS:	Zoo Property Wealth Builder Pty Ltd v Australia Red Hill Real Estate Group Pty Ltd
MEDIUM NEUTRAL CITATION:	[2026] VSC 509

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ARBITRATION — Commercial Arbitration Act  2011 (Vic) ss 11, 16 — Application for appointment of arbitrator — Appointment resisted on basis of alleged invalid arbitration agreement — Allegation of forgery and claim for non est factum — Court’s assessment limited to prima facie examination of existence and validity of arbitration agreement — Kompetenz‑Kompetenz — Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442 — Oil Basins Ltd v Esso Australia Resources Pty Ltd (2025) 78 VR 388 — Malini Ventura v Knight Capital Pte Ltd [2015] SGHC 225 — Pacific International Lines (Pte) Ltd v Tsinlien Metals and Minerals Co Ltd [1993] 2 HKLR 249 — Arbitrator appointed. 

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Castelan and Dr D Stamboulakis	Sutton Laurence King Lawyers
For the Respondent	Mr J McKay	Robinson Gill Lawyers

HIS HONOUR:

Introduction

1. By originating process filed 29 September 2025 and summons filed 30 September 2025, the Applicant applies under s 11(3) of the Commercial Arbitration Act 2011 (the Act) for the appointment of an arbitrator pursuant to cl 12 of a services agreement, dated 28 January 2021, between the Applicant and the Respondent concerning a residential development at 125–141 Alfred Road, Strathtulloh VIC (the Services Agreement).  
2. The substantive question for the Court in this application is whether or not an arbitration agreement exists for the purposes of the Act, particularly s 11(3).  

Background

3. An executed original of the Services Agreement, bearing wet‑ink signatures, has been produced, exhibited and examined (the original agreement).  The Respondent resists the application, alleging that the signature of its sole director, Ms Li Guo (Ms Guo), on the agreement was forged.  The expert evidence, including that of the Respondent’s own examiner who inspected the original agreement itself, is unanimous that Ms Guo’s signature on the original agreement is genuine.  On this basis the Applicant contends that the allegation of forgery is not made out.  
4. The parties also made submissions going to the formation or validity of the Services Agreement more broadly and these are contained in the parties’ written outlines.^[1]  
5. In addition to the Respondent’s claim that the signature of Ms Guo on the Services Agreement was forged, it claims that the agreement is invalid and of no effect by reason of the application of the doctrine of non est factum, relying principally on the applicable principles as laid down by the High Court in Petelin v Cullen.^[2]  
6. The critical provision of the Services Agreement for the purposes of this application is cl 12 which provides, under the heading ‘Arbitration’:^[3]

If any dispute or difference shall arise between the parties hereto concerning this Deed, its construction or operation and such dispute or difference cannot be settled by the parties and the parties fail to agree to a mediation pursuant to Clause 10, the dispute shall be submitted to arbitration in accordance with the provisions of the Commercial Arbitration Act 1984 of the State of Victoria.  … The Arbitrator however shall have the right to award costs against any one of the parties to the arbitration.

7. Clause 12 refers to the Commercial Arbitration Act 1984.  By s 43(1)(b) of the Act, that reference is to be construed as a reference to the Act.  As observed by the Applicant, an identical point was disposed of by this Court in Oil Basins Ltd v Esso Australia Resources Pty Ltd,thus there is ‘no substance’ in contentions founded on an arbitration clause’s reference to the 1984 Act.^[4]

The statutory framework and the role and function of the Court

8. The critical provisions for the purposes of this application are ss 11 and 16 of the Act.  Section 11 and the relevant parts of s 16 are as follows:

11        Appointment of arbitrators (cf Model Law Art 11)

(1)        [omitted]

Note

Art 11(1) of the Model Law (which provides that no person is precluded by nationality from acting as an arbitrator unless otherwise agreed by the parties) has been omitted.

(2)        The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of subsections (4) and (5).

(3)        Failing such agreement—

(a)        in an arbitration with 3 arbitrators and 2 parties, each party is to appoint one arbitrator, and the 2 arbitrators so appointed are to appoint the third arbitrator; if a party fails to appoint the arbitrator within 30 days of receipt of a request to do so from the other party, or if the 2 arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment is to be made, on the request of a party, by the Court; and

(b)        in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, an arbitrator is to be appointed, on the request of a party, by the Court; and

(c)        in an arbitration with 2, 4 or more arbitrators or with 3 arbitrators and more than 2 parties the appointment is to be made, at the request of a party, by the Court.  

(4)        Where, under an appointment procedure agreed on by the parties—

(a)        a party fails to act as required under the procedure; or

(b)        the parties, or 2 or more arbitrators, are unable to reach an agreement expected of them under the procedure; or

(c)        a third party, including an institution, fails to perform any function entrusted to it under the procedure—

any party may request the Court to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.

(5)        A decision within the limits of the Court’s authority on a matter entrusted by subsection (3) or (4) to the Court is final.

(6)        The Court, in appointing an arbitrator, is to have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator.

Note

This section (other than subsections (3)(c), (5) and (6)) is substantially the same as Art 11 of the Model Law.  Subsection (3)(c) is added to cover the contingency of the parties failing to agree on the procedure to appoint arbitrators in certain circumstances not covered by the Model Law as incorporated in this Act.  It is based on clause 11(6) of Schedule 1 to the Arbitration Act 1996 (NZ).  Subsection (5) makes it clear that, although a decision of the Court is generally final, review of a decision of the Court that is not made within the limits of its powers and functions is not precluded.  Subsection (6) does not include the requirement in Art 11(5) of the Model Law that the Court take into account the advisability of appointing an arbitrator of a nationality other than those of the parties in appointing a sole or third arbitrator as this is not relevant in the context of domestic commercial arbitrations.

…

16        Competence of arbitral tribunal to rule on its jurisdiction (cf Model Law Art 16)

(1)        The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.

(2)        For that purpose, an arbitration clause which forms part of a contract is to be treated as an agreement independent of the other terms of the contract.

(3)        A decision by the arbitral tribunal that the contract is null and void does not of itself entail the invalidity of the arbitration clause.

Note

The Model Law provides that such a decision does not ipso jure entail the invalidity of the arbitration clause.  

…

(8)        The arbitral tribunal may rule on a plea referred to in subsection (4) or (6) either as a preliminary question or in an award on the merits.

(9)        If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within 30 days after having received notice of that ruling, the Court to decide the matter.

(10)      A decision of the Court under subsection (9) that is within the limits of the authority of the Court is final.

(11)      While a request under subsection (9) is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.

Note

Section 16 (other than subsection (10)) is substantially the same as Art 16 of the Model Law.  Subsection (10) makes it clear that, although a decision of the Court is generally final, review of a decision of the Court that is not made within the limits of its powers and functions is not precluded.

9. As is made clear in these provisions, they are in effect a reenactment of the United Nations Commission on International Trade Law (UNCITRAL Model Law) on International Commercial Arbitration (as adopted by UNCITRAL 21 June 1985 with amendments as adopted by Commission in 2006) so as to be as uniform as possible with the UNCITRAL Model Law (the Model Law).  Given the provenance of these provisions, the courts have emphasised the importance of international jurisprudence in their interpretation, withstanding that provisions of the Act apply the Model Law provisions in a domestic arbitral context; a position both mandated and enabled expressly by the provisions of s 2A of the Act.  This position was emphasised by the Full Court of the Federal Court of Australia in TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd where their Honours (Allsop CJ, Middleton and Foster JJ) said:^[5]

This approach to confining the scope of public policy has widespread international judicial support.  Contrary to the submission of the appellant, it is not only appropriate, but essential, to pay due regard to the reasoned decisions of other countries where their laws are either based on, or take their content from, international conventions or instruments such as the New York Convention and the Model Law.  It is of the first importance to attempt to create or maintain, as far as the language employed by Parliament in the [International Arbitration Act 1974 (Cth)]permits, a degree of international harmony and concordance of approach to international commercial arbitration.  This is especially so by reference to the reasoned judgments of common law countries in the region, such as Singapore, Hong Kong and New Zealand.  Such is a reflection of the growing recognition of the harmony of what can be seen as the ‘law of international commerce’.

10. Section 11(2) of the Act leaves the parties free to agree on an appointment procedure.   Nevertheless, cl 12 of the Services Agreement does not contain any such procedure and, further, the parties have not determined the number of arbitrators.  Section 10(2) of the Act resolves matters in these circumstances by providing that if the parties have not determined the number of arbitrators, the arbitral tribunal is constituted by one arbitrator only.  Section 11(3)(b) of the Act provides for the circumstance where the parties fail to agree on an arbitrator in which case the appointment is to be made on the request of a party by the Court.  
11. The Applicant’s solicitors, Sutton Laurence King (SLK), by letter dated 16 September 2025 proposed three Victorian candidates for appointment.  These nominations were reiterated again on 28 April 2026.  The Respondent has not, however, engaged with any nomination and refuses to participate in any appointment and denies any obligation to arbitrate at all.^[6]  As indicated previously, the bases of the Respondent’s position in this respect is that the Services Agreement has not been signed on behalf of the Respondent, the allegation being that Ms Guo, its sole director, never signed the agreement and what appears as her signature was a forgery and, secondly, that even if the agreement were signed by the Respondent, its validity is resisted on the basis of non est factum.  
12. The Applicant submits that two principles of the Act frame the Court’s function on an application such as the present one.  First, it is said that applying the principle of Kompetenz‑Kompetenz, the arbitral tribunal may rule on its own jurisdiction, ‘including any objections with respect to the existence or validity of the arbitration agreement’ as provided under s 16(1) of the Act.  Secondly, on the principles of separability, an arbitration clause is treated as an agreement independent of the other terms of the contract, and a decision that the contract is null and void does not of itself entail the invalidity of the arbitration clause; as flowing from the provisions of ss 16(2) and (3) of the Act.  The Applicant emphasises, and in my view quite correctly, that both principles are foundational to the arbitral regime on which the Act is patterned.^[7]  
13. These principles, it is contended, bear upon the questions which, on the authorities, are for the arbitral tribunal, namely the scope of the arbitration agreement and the validity of the underlying contract, as distinct from the existence of the arbitration agreement, which is for the Court.  The question in the later respect is the threshold the Court must reach in considering relevant facts and circumstances to be satisfied as to the existence of an arbitration agreement for the purposes of the provisions of the Act, particularly for the purposes of ss 11 and 16.  
14. The restraint required of a court asked to lend curial support to arbitration was recently considered by this Court in Oil Basins.^[8]  Oil Basins concerned an application under s 7 of the International Arbitration Act 1974 (Cth) to stay a proceeding commenced in the face of an arbitration agreement.  The contest was whether the Court was required itself to determine that the disputes fell within the arbitration agreement.  In that case I held that no such determination was required:^[9]

There is no suggestion that this process involves more than the Court forming a general view that the differences between the parties fall within the scope of the arbitration agreement, much less any examination of claims and responses in detail or the Court embarking on construction of the arbitration agreement.  This approach is consistent with respect for and support of the jurisdiction of the arbitral tribunal and application of the doctrine of Kompetenz‑Kompetenz.

15. As the Applicant contends, a ‘similarly “light touch” approach’ governs any suggestion that the underlying claims must satisfy some threshold of sustainability or prospects:^[10]

[I]t would generally be wrong for the Court to examine an argument in a form of summary disposal application, and, if it were thought that an asserted case, in terms otherwise falling within the scope of the agreement, was sufficiently weak not to be ‘sustainable’, not to refer the matter to arbitration.  That would be to usurp the role of the arbitrator.   The Court’s role … is not to act as a court of summary disposal filtering the matters that are suitable for arbitration.

16. As observed by the Applicant, where the attack is on the arbitration agreement itself, the question is whether the Court should hear that question or leave it to the arbitral tribunal.  I answered this previously in Oil Basins by adopting the commentary in Croft, Stamboulakis and Warren,^[11] which synthesises Hancock Prospecting^[12] and the summary of Lyons J in Transurban WGT Co Pty Ltd v CPB Contractors Pty Ltd^[13] to the effect that issues of short compass may be resolved by the Court, but issues ‘of some legal and/or factual complexity’ are ‘generally more appropriate’ for the arbitral tribunal.  It was also held that this position is consistent with ‘the respect to be paid to and support for the jurisdiction of the arbitral tribunal and, particularly, the operation and application of the doctrine of Kompetenz‑Kompetenz’.^[14]  The Court of Appeal granted leave in Oil Basins but dismissed the appeal (save as to costs), holding that ‘the case law supports the approach the judge took’.^[15]  Their Honours explained:^[16]

[T]he reasoning in Hancock and the other authorities referred to by OBL shows that a strict ‘determination’ of that question is not always appropriate.   The judge applied the ‘light touch’ contemplated in the authorities, and found that the factual complexity of the documents and the historical context, in circumstances where the arbitrators could apply the competence principle and resolve the question of their authority to arbitrate, established the basis for a stay.

17. The Applicant contends that these foregoing principles inform the Court’s approach to this application under s 11.  In this respect, it is observed that s 7 of the International Arbitration Act 1974 (Cth) and s 8 of the Act, being the relevant provisions in the context of the foregoing discussion of principles, each contain a proviso directing attention to whether the arbitration agreement is ‘null and void, inoperative or incapable of being performed’.  It is contended by the Applicant that even in this legislative context, the authorities do not require the Court finally to determine objections of that kind where they involve legal or factual complexity.  Section 11(3), in contrast, contains no such proviso.  It confers a facilitative power, to be exercised consistently with the paramount object of the Act which under s 1AC is ‘to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense’.  This paramount object is, it is said, supported by the Kompetenz‑Kompetenz principle provided for in s 16 of the Act, by which the arbitral tribunal ‘may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement’.   This is the opening provision in s 16, the first subsection.  Thus it is said that on this application, the matter upon which the Court must be satisfied is the existence of the arbitration agreement under which the appointment is sought.  
18. The Applicant contends that for the purposes of this application, the existence of an arbitration agreement is established on the material before the Court, namely that there is an original deed, the Services Agreement, containing cl 12, the arbitration agreement.  Moreover, it is submitted that the Services Agreement and the evidence before the Court is that it was executed by Ms Guo whose signature on it is genuine and that both the appointed experts do not support the forgery allegation.  That, it is said, is sufficient to engage the Court’s power under s 11(3)(b) of the Act.  In my view, for the reasons which follow, I am of the opinion that all is required in an evidentiary sense to reach the threshold for enlivening the Court’s power under s 11(3)(b) of the Act is evidence of the existence of the Services Agreement and its apparent execution.  Questions of forgery and non est factum as affecting its validity are matters which are encompassed within the operation of s 16(1), the Kompetenz‑Kompetenz principle enshrined by the Model Law and the provisions of the Act.  
19. The Respondent in its submissions in substance contends that a threshold requirement for the engagement of the Court’s powers under s 11 of the Act depends upon proof of the existence of a valid arbitration agreement.  These submissions are put as follows:^[17]

As to the appointment of an arbitrator under s.11 of the Act, the terms of that provision suggest that the Court’s jurisdiction to appoint an arbitrator depends on the prior existence of a valid arbitration agreement.  By s.11 (2), the ‘parties are free to agree on a procedure of appointing the arbitrator’.  Under s.11(3), failing such agreement ‘in an arbitration’, the appointment ‘is to be made, on the request of a party, by the Court’.  By virtue of definitional provisions in ss. l and 2, the phrase ‘in an arbitration’ is satisfied where ‘the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in Australia’ and ‘the parties have (whether in the arbitration agreement or in any other document in writing) agreed that any dispute that has arisen or may arise between them is to be settled by arbitration’.  By s.11(4), if an appointment procedure ‘agreed on by the parties’ fails, the Court can again appoint an arbitrator.  Accordingly, s.11 rests on the basis that a valid agreement to arbitrate exists between the parties, and the power of appointment requires that condition to be proven on the facts where it is disputed.^[18]  Nothing said in Zoo Property’s outline detracts from this conclusion.  Indeed, it is said at [17] of the outline that the principles Zoo Property seeks to extract from certain authorities ‘bear on the questions which, on the authorities, are for the arbitral tribunal – the scope of the arbitration agreement and the validity of the underlying contract – as distinct from the existence of the arbitration agreement. which is for the Court’.  Insofar as the authorities directed to s.8 of the Act (and its equivalents in other jurisdictions) are applicable to s.11, it is clear that the Court can consider the threshold question as to the validity of the arbitration agreement.  In Transurban WGT Co Pty Ltd v CPB Contractors Pty Ltd,^[19] Lyons J said: ‘the question of who should determine the proviso issue is “a practical question” based upon the nature of the relevant issue, including its legal and factual complexity’.  In Hancock Prospecting Pty Ltd v Rhinehart^[20] it was accepted that, notwithstanding the doctrines of separability and competence, a court can and should examine the validity of the arbitration agreement in circumstances where (as here) the nature of the argument as to invalidity necessarily impeaches both the primary agreement and the arbitration agreement or clause:

It can be accepted that there may be allegations or complaints about the validity of the main agreement in question that are relevant to any attack on the arbitration agreement.  But this is not because of any argument based on causation that since the main agreement is invalid, so is the arbitration agreement; rather it is because the nature of the allegation is that it stands as an independent ground of impeachment of the separate arbitration agreement directly related to the arbitration agreement.   In a valuable passage in Joseph D, Jurisdiction and Arbitration Agreements and their Enforcement (3rd ed, Sweet and Maxwell, 2015) at 127‑129 [4.40] there is a discussion of examples of circumstances where the same ground can be seen to impeach both the main agreement and the arbitration agreement: non est factum, illegality of a kind that is directed to the arbitration agreement such as a consumer protection statute, lack of signature and some kind of fundamental mistake (about the arbitration agreement).  Fraud, if fundamentally impeaching any consent, may be independently directed to the arbitration agreement.

20. I note the reference in these submissions to the Applicant’s submissions with reference to various authorities where it is said (at [17]) words to the effect that the existence of the arbitration agreement is for the Court.  As I have indicated previously, I am of the view that this must be read as indicating that some threshold must be met in terms of the existence of the arbitration agreement before the Court can act under s 11 but the question is as to the nature of the threshold.  In my view, the authorities to which reference has been made do not support the position that such existence must be established according to ordinary civil standards of proof, that is, on the balance of probabilities after full examination of the terms of the arbitration agreement in the context of relevant facts and circumstances.  Reliance is also placed by the Respondent on the provisions of s 8 of the Act (and its equivalence in other jurisdictions) in support of the proposition that the validity of the purported arbitration agreement is a matter for the Court and not the arbitral tribunal.  In my view, this position is not supported by analogous reasoning from s 8 of the Act (or its equivalent in other jurisdictions) nor on the basis of the authorities.  Moreover, the position contended for by the Respondent would produce an inconsistency or conflict between the provisions of s 11 and the principle of Kompetenz‑Kompetenz as applied by s 16, particularly s 16(1).  Indeed, it is difficult to see what work s 16(1) would have to do based on its plain words were the Respondent’s position accepted.  
21. It is to these matters that I now turn.  More particularly, I turn now to the Applicant’s submissions which, in my view, are to be accepted as a correct analysis of the inoperation of the relevant provisions of the Act, with the Act read as a whole according to the usual principles of statutory construction and in light of the approach of the courts to the international provenance of this legislation.  
22. As I have indicated, the Respondent contends that s 11(3) of the Act requires the Court itself to determine, on this application, whether a valid arbitration agreement exists, and to resolve the questions of forgery, non est factum and formation now.^[21]  In my view that mistakens both the Court’s task and the provision engaged.  This is an application to appoint an arbitrator under s 11(3) of the Act.  It is not an application for a stay or referral under s 8 of the Act or s 7 of the International Arbitration Act 1974 (Cth), and each authority the Respondent invokes is an authority on those provisions.  In comparing the provisions, the Act is to be construed so as to promote uniformity with the application of the Model Law, with recourse to the UNCITRAL materials;^[22] and art 11 of the Model Law ‘is applied in the same way’ under the international and domestic regimes, so Model Law authority on appointment informs s 11 directly.^[23]  That is how Australian courts have proceeded: in Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG, the High Court construed the cognate stay proviso by reference to the New York Convention and comparative authority;^[24] and in Oil Basins, this Court stated the applicable approach by reference to the UNCITRAL Digest’s survey of the Model Law jurisdictions.^[25]  The Court must be satisfied that an arbitration agreement exists; but that satisfaction does not entail a final trial of every ground alleged by a respondent to affect the agreement’s validity.
23. Section 11 is, as the Applicant contends, narrower than the referral provisions from which the Respondent’s authorities come.  Where the Act intends a court to examine the arbitration agreement before acting, it says so, and says to what standard. Thus s 8(1) directs referral ‘unless it finds that the agreement is null and void, inoperative or incapable of being performed’.  Section 11 confers the appointment power without any proviso, and makes the resulting decision final.^[26]  It must be observed, and as a matter of significance, that no like finality attaches to a decision under s 8.  That differentiation is deliberate: the Model Law and the legislature withheld from the appointing court the very examination the Respondent asks it to undertake.  The appointment decision is a gateway, not a trial.   The tribunal rules on its own jurisdiction, ‘including any objections with respect to the existence or validity of the arbitration agreement’,^[27] and the Court has the last word through s 16(9) and ss 34 and 36.
24. I accept that as submitted by the Applicant, s 5 of that Act confirms that allocation: ‘[i]n matters governed by this Act, no court must intervene except where so provided by this Act’.  The existence and validity of an arbitration agreement are matters governed by the Act, and the Act provides where they are determined: by the tribunal in the first instance,^[28] and by the Court under s 16(9), ss 34 or 36, in each case with the benefit of the tribunal’s ruling and a full evidentiary record.  The Act nowhere provides for their trial as a condition of the facilitative power in s 11(3).  Indeed, this is how art 5 was applied in Oil Basins,^[29] where it was noted that deference to the tribunal’s jurisdiction ‘is also consistent with art 5 of the Model Law which prohibits a court from intervening except where so provided in the Model Law’.^[30]  The determination the Respondent seeks is an intervention for which the Act does not provide.
25. As observed by the Applicant, the drafting history of the Model Law, which is relevant given the international provenance of this legislation, confirms the narrower character of the appointment function.  The appointment decision was made final because ‘[f]inality seems appropriate in view of the administrative nature of the function and essential in view of the need to constitute the arbitral tribunal as soon as possible’.^[31]  The drafters classed the functions in arts 11, 13 and 14 as ‘of a more administrative nature and where speed and finality are particularly desirable’, such that a State ‘may entrust these administrative functions even to a body outside its court system’.^[32]  It follows that a function that may be committed to an arbitral institution cannot have been intended to carry a curial trial of contested execution.  The Commission also recorded why court intervention was confined: ‘resort to intervention by a court during the arbitral proceedings was often used only as a delaying tactic and was more often a source of abuse of the arbitral proceedings than it was a protection against abuse’.^[33]  Thus s 11 is not a vehicle for the collateral trial of a respondent’s defences to the claim it apparently agreed to arbitrate; particularly having regard to the ‘light touch’ approach to whether there was such an agreement, as discussed in these reasons.  
26. It follows that courts in Model Law jurisdictions applying art 11 have long appointed under these provisions notwithstanding a dispute about the very existence of the arbitration agreement, leaving that question to the arbitral tribunal.  In Pacific International Lines (Pte) Ltd v Tsinlien Metals and Minerals Co Ltd,^[34] the respondent denied that any contract containing the arbitration clause existed with the applicant at all.  Justice Kaplan appointed, holding:^[35]

It follows, therefore, that if I am satisfied that there is a plainly arguable case to support the proposition and there was an arbitration agreement which complies with Article 7 of the Model Law, I should proceed to appoint the arbitrator in the full knowledge that the Defendants will not be precluded from raising the point before the arbitrator and having the matter reconsidered by the court consequent upon that preliminary ruling.

27. The Hong Kong Court of Appeal upheld that approach on art 11(3) itself in Triple V Inc v Star (Universal) Co Ltd,^[36] where the respondent contended that the contract containing the arbitration clause had been rescinded by a later agreement, so that nothing remained to arbitrate.  Vice President Litton (Liu JA agreeing) said of the judge who had appointed on a prima facie view:^[37]

I agree.  If the judge were to go into the matter more deeply, he would in effect be usurping the function of the arbitrator.  Whilst, clearly, the judge had to make a judgment as to whether there existed an underlying agreement to arbitrate, he could do no more than to form a prima facie view.  Here, in exercising his jurisdiction under Article 11(3), Leonard J in effect asked himself whether it was arguable that Contract No. 1034HK still subsisted, despite the existence of the subsequent agreement.  This seems to me the correct approach.

28. Justice Keith agreed: whether ‘there is a valid agreement to refer those disputes to arbitration sufficient to engage the arbitrator’s jurisdiction’ is a matter ‘for the arbitrator to decide’.^[38]  The Respondent sought to argue a different interpretation of the statements of Keith J on the basis of a passage in the headnote to the report of this decision.  As I observed in the course of the hearing of this application,^[39] the words of the reported judgment, not of the headnote, clearly prevail.
29. The UNCITRAL Secretariat digests those decisions as the line of authority under which objections to the agreement’s existence justify dismissal of an appointment application ‘only … where they appear to be clearly well founded upon a prima facie review of relevant evidence’.^[40]  The principal authority the Digest records for fuller review, SBP & Co v Patel Engineering Ltd,^[41] has, in the intervening decade and a half, been abandoned in India itself: Indian statute now expressly confines the appointing court to examining ‘the existence of an arbitration agreement’, and a seven‑judge bench, reasoning from the same structural asymmetry between the referral and appointment provisions, has confirmed that the enquiry is prima facie only, the appointing court being ‘not the appropriate forum to conduct a mini‑trial by allowing the parties to adduce the evidence in regard to the existence or validity of an arbitration agreement’, which ‘ought to be left to the arbitral tribunal’.^[42]  
30. Commentary on art 11 is to the same effect; namely, that an appointing court should go no further than ‘a prima facie examination of the existence and validity of the arbitration agreement and a mere assessment of whether the jurisdiction of the arbitral tribunal is arguable’, the standard of review under art 11 being not necessarily that under art 8.^[43]
31. For the preceding reasons, it is the position, as put by the Applicant, that the text, purpose, drafting history, three decades of authority and the commentary thus align so that it is clear that on an art 11 (s 11) application, the court asks whether an arbitration agreement prima facie exists, and nothing more.
32. In any event, the referral authorities on which the Respondent relies do not qualify this conclusion but, rather, they reinforce it.  Even under the Model Law referral provisions, where an express proviso confers a broader power to examine the arbitration agreement, each of the Respondent’s contentions would be referred to the arbitrator.  Adopting the prima facie approach, the Full Federal Court of Australia held that the court ‘does not reach a final view on the balance of probabilities’, and that ‘[i]f there appears to be a valid arbitration agreement which prima facie covers the matters in dispute, the matter should be referred to the arbitrator to deal with questions of jurisdiction’.^[44]  The competence principle ‘is wide enough to permit the arbitral tribunal to decide any question of jurisdiction, including whether the arbitration agreement came into existence’, the court ‘having the final say on the question’.^[45]  Even the word ‘finds’ in the s 8 proviso ‘should not be read as requiring that the matters in the proviso cannot be part of the reference to the arbitrator’.^[46]  The court’s role ‘is not to act as a court of summary disposal filtering the matters that are suitable for arbitration’.^[47]
33. The High Court’s most recent statement of the stay framework is to the same effect.  A court may decline to hold a party to an arbitration agreement under the proviso only if it ‘finds’ the agreement null and void.  However, it is not enough that the agreement ‘might be null and void’, that ‘there is a real risk’ of nullity, or that nullity is ‘reasonably arguable’.^[48]  Any such finding must be made ‘as a matter of law based on agreed, admitted, or proved facts’, ordinarily on the balance of probabilities, and the burden of proof ‘rests on the party asserting the fact that the arbitration agreement is void’; ‘where there is doubt, the interpreter should opt for the solution that tends to ensure that arbitration agreements are binding’.^[49]  The onus is accordingly the Respondent’s, and it is not discharged.
34. The closest factual analogue makes the same point in the context most favourable to the Respondent.  In Malini Ventura v Knight Capital Pte Ltd the party resisting arbitration alleged, as here, that her signature had been forged, so that the very existence of the arbitration agreement was contested.^[50]  The question arose on a stay application, where the proviso gives the court its most ample power to examine the agreement, as compared to an appointment application under art 11.  Justice Prakash held:^[51]

If I were to hold that, in a situation where the conclusion of the arbitration agreement is in issue, the jurisdiction in s 6(2) to stay the court proceedings would not bite unless I could conclude, on the basis of the usual civil standard, that the arbitration agreement had been entered into, I would be imposing too high a burden on the party seeking the implementation of the arbitration agreement.  I consider that it would satisfy the rights of both parties if the party applying for the stay was able to show on a prima facie basis that the arbitration agreement existed.  The matter would then go to the [arbitral] tribunal to decide whether such existence could be established on the usual civil standard and then, if any party was dissatisfied with the [arbitral] tribunal’s decision, such party could come back to the court for the last say on the issue.

35. As the Applicant contends, the arbitral tribunal is empowered to ‘consider not only validity but also the very existence of the arbitration agreement’;^[52] that competence is conferred by the Act itself,^[53] and is not derived from, and does not presuppose, the very agreement whose existence is challenged.  The opposite approach, under which the court may decide for itself the question of whether on the balance of probabilities the agreement was made, is the English approach in Albon v Naza Motor Trading Sdn Bhd (No 3),^[54] which Malini Ventura v Knight Capital Pte Ltd declined to follow as inconsistent with the Model Law scheme.  It must be kept in mind that the English Arbitration Act 1996 ‘has not incorporated the Model Law wholesale (for example, there is no equivalent of Art 5)’.^[55]  A court applying the Model Law scheme refuses to refer only in ‘the clearest of cases’.^[56]  If a contested forgery allegation goes to the arbitral tribunal even under the provision that expressly permits limited examination by the court, it should most definitely go to the tribunal under s 11; a provision which does not permit something in the nature of a substantive examination or enquiry by the court.
36. Against this body of authority, the Respondent invokes the ‘one important qualification’ put in its outline; namely that the Court’s jurisdiction to appoint an arbitrator depends on the prior existence of a valid arbitration agreement.^[57]  The first difficulty with this proposition is that this qualification is expressed in the stay provisions of s 8 only; and where the proviso in that section confers the broader power of examination.  Separability does not prevent a court from considering a ground that truly impeaches consent to arbitration itself; but that conclusion does not follow from a challenge to the substantive bargain alone.  Secondly, such a ground could only reach and affect cl 12 of the Services Agreement if, properly analysed, it negates assent to the agreement to arbitrate as a distinct agreement, being ‘independently directed to the arbitration agreement’.^[58]  Otherwise the arbitration agreement contained in those provisions ‘must be treated as a distinct agreement and can be void or voidable only on grounds which relate directly to the arbitration agreement’; the argument that the main agreement and the arbitration clause are so bound up that ‘[t]he one should fall with the other’ is ‘exactly the kind of argument which section 7 was intended to prevent’.^[59]  Moreover, the Respondent identifies no misrepresentation, concealment or mistake concerning cl 12 or any arbitration agreement.  Rather, its case is that Ms Guo did not know she was executing a services agreement at all.  Even if that contention, were it established, could extend to every term of the document, cl 12 included, the question remains the one the Full Court in Hancock Prospecting identified which was whether the Court ‘should embark on that hearing’, which ‘will depend on the nature of the attack and all the circumstances’.^[60]  On this application, for the reasons identified and discussed in these reasons, it should not.
37. The tests the Respondent invokes for when a court should itself determine such a ground were developed in the ‘shadow’ of the proviso provisions of s 8 as though they were an aspect of the empowering and other provisions of s 11.  Hancock Prospecting itself eschews ‘any rigid taxonomy of approach’:^[61] the question is practical, as the Respondent accepts,^[62] ‘a practical question’ based upon ‘the nature of the relevant issue, including its legal and factual complexity’.^[63]  The Respondent submits the controversy is ‘in short compass’.^[64]  In my view, as contended by the Applicant, it is not.  The non est factum and formation challenges would require a contest between sworn accounts of the events of 28 January 2021; findings on Ms Guo’s experience and possible or alleged carelessness; and the construction of years of dealings between the parties and their representatives, including the conduct of similar related contracts, the process of negotiations, WeChat communications, and the course of dealing in the underlying contract.  That is the very complexity the Respondent attributes to the substantive disputes,^[65] and such contentions are generally more appropriate for the arbitral tribunal.^[66]  The Respondent’s allegations of breach (the tender process, the site works, the delegation, the easement)^[67] are matters for the arbitration; they bear on this application only as confirmation that the substantive disputes said to arise under the Services Agreement are substantial.  The Court’s role is not to act as a court of summary jurisdiction and it does not filter such contentions on their merits, for that ‘would be to usurp the role of the arbitrator’.^[68]
38. As the Applicant submits, the fact that the deponents were possibly to be cross‑examined at this hearing does not alter that allocation.  The scope of the hearing follows from the Court’s task; it does not enlarge it.  Cross‑examination may test the competing accounts of 28 January 2021, but findings on non est factum and formation remain findings the Act commits to the arbitral tribunal in the first instance.^[69]  Nor is it an answer that, the evidence having been heard, the Court may as well decide the matter.  The finality attaching to the appointment mechanism^[70] reflects its confined and facilitative character but it does not make this application the appropriate vehicle for a final factual trial of jurisdictional objections, whose determination the Act reserves to the arbitral tribunal and, on review, to the courts.^[71]  Moreover, I accept were the position otherwise, any respondent could enlarge a s 11 application into a trial of its defences simply by multiplying the material said to require determination — the species of collateral resistance the Model Law’s drafters set out to prevent.^[72]
39. The allocation of functions as between the court and the arbitral tribunal does, in my view, clearly serve the paramount object of the Act, being the fair and final resolution of commercial disputes ‘without unnecessary delay or expense’.^[73]  In this matter, the facts underlying the Respondent’s contentions must be traversed by the arbitral tribunal in any event.  The Model Law’s drafters rejected concurrent court control of jurisdictional questions for that reason: the draft article permitting it ‘was deleted for the purpose of preventing dilatory tactics and obstruction of the arbitral process’.^[74]  The suggestion that deferring to the tribunal itself duplicates effort was considered and rejected in Tomolugen Holdings Ltd v Silica Investors Ltd: ‘the fear of resource duplication which, it is said, will arise from the prima facie approach is overstated’, not least because a party pursuing unmeritorious jurisdictional appeals faces ‘the prospect of an adverse costs order’.^[75]  The allocation does not deprive the Respondent of its objections: each remains open before the tribunal, and thereafter, if there is a basis for it, before the relevant court.
40. Focussing more on the particular aspects of this matter, it is correct to observe that the position put by the Respondent in terms of the proper approach to this application under s 11 elides the distinction between authenticity and avoidance.   A forgery or non‑execution challenge denies that Ms Guo executed the agreement at all; that goes to the existence of an executed instrument.  Non est factum and non‑formation are different from the forgery allegation: each proceeds, at least in the alternative, on the footing that Ms Guo signed the document, and contends that her signature did not produce a binding agreement.  Either of these allegations would in their particular ways, if established, defeat the Services Agreement.  However this would not decide their effect on cl 12 because the principle of separability of the arbitration agreement operates precisely where success on the challenge would void the underlying contract, and ‘the invalidity of the substantive contract does not necessarily entail the invalidity of the arbitration clause’.^[76]  Ms Guo’s own case reflects the point:^[77] its first limb, that she ‘did not execute that agreement at all’, is answered by the expert evidence; only the second, non est factum, remains, and its effect on cl 12 is, in the circumstances, for the arbitral tribunal to determine in the first instance.
41. The Applicant contends that even if the s 8 proviso provisions were engaged in this application, under s 11 it would not affect the position in favour of the Respondent.  The expression ‘null and void’ in the Model Law sense means ‘devoid of legal effect’, the result of an agreement ‘being procured by duress, mistake, fraud or waiver’, and ‘does not apply to a situation in which no agreement was concluded at all’.^[78]  It follows that the court need not resolve that question of characterisation.  On either view, in the present context the matters within the proviso may be part of the reference to the arbitrator, and their factual complexity means that the arbitral tribunal is the proper forum for their determination.  Gemcan Constructions Pty Ltd v Westbourne Grammar School, on which the Respondent relies,^[79] is not to the contrary: the challenge there was a discrete legal point, that the agreement named no appointment machinery, which the Court resolved to uphold the agreement and to appoint under s 11.^[80]  As observed by the Applicant, this is a clear application of the approach in Hancock Prospecting:^[81] a confined question of law, capable of disposing of the issue, may sensibly be resolved by the court; a contested factual dispute about assent may not.  In any event, none of these tests needs to be engaged.
42. If a concluded view on execution of the Services Agreement is required for the purposes of s 11(3), the evidence supports it on the balance of probabilities; and cl 12 is not independently impugned, despite an express invitation to the Respondent to identify any such case. The wet‑ink original Agreement has been inspected; the signature is genuine on the unanimous expert evidence, including that of the Respondent’s own examiner; Mr Ye witnessed Ms Guo sign it;^[82] and the parties performed and paid under the agreement for years.  As submitted by the Applicant, this does, on any view of the standard required, satisfy s 11(3).  Non est factum and non‑formation, if made out, would defeat the agreement; but they are objections ‘with respect to the existence or validity of the arbitration agreement’ which s 16(1) commits to the arbitral tribunal in the first instance.  The Applicant’s acceptance^[83] that the existence of the arbitration agreement is for the Court is not to the contrary.  For the preceding reasons, I accept that the evidence establishes the existence of the arbitration agreement to the extent required for the purposes of this application under s 11 of the Act.
43. Finally, reference should be made to the Respondent’s submissions that in the interests of efficiency and reducing costs the Court should, before making any appointment under s 11 itself determine the question whether or not there is an arbitration agreement in the course of determining whether or not the Services Agreement was valid having regard to its claims to the contrary.^[84] In addition to other matters relied upon in this respect, which have been discussed in the preceding reasons, the point was made that leaving jurisdictional matters to the arbitral tribunal in accordance with the Kompetenz‑Kompetenz principle under s 16 of the Act only invited a wasteful duplicated, hence circular, process which produced unnecessary delay and costs.  It is common ground that the Court does, under the Model Law provisions (as contained in the Act) with respect to setting aside (s 34), recognition and enforcement (s 35), and refusing recognition and enforcement (s 36) of arbitral awards, retain ultimate control over the arbitration process.
44. In this respect, the Respondent made reference to the provisions of s 16(9) of the Act which provides that: ‘[i]f the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within 30 days after having received notice of that ruling, the Court to decide the matter’.  Thus it is said that it would be more efficient for the Court to determine the matter now, itself.  This argument does however overlook the threshold to the operation of s 16(9), which is that the arbitral tribunal has made a preliminary ruling on jurisdiction.  Were it not for this threshold, s 16 and the application of the Kompetenz-Kompetenz principle under s 16 would have quite limited application, as would the provisions such as s 11 of the Act relating to those provisions.  The extent and manner of court control with respect to the determination of the jurisdiction of the arbitral tribunal was an extensively debated issue in the deliberations of UNCITRAL Working Group II (Arbitration) and those of the Commission itself in the development of the Model Law text.  The following discussions extracted in Holtzman and Neuhaus illustrate this very clearly:^[85]

The arbitral tribunal should be empowered to decide itself about any pleas as to its jurisdiction. In particular, it should have the power to determine the existence and validity of the arbitration agreement. If the agreement is set forth in an arbitral clause, the determination of the arbitral tribunal’s ‘competence‑competence’ would be facilitated by the separability of that clause as discussed earlier …

A difficult question remains, that is, whether the decision of the arbitral tribunal about its jurisdiction shall be final or whether it shall be subject to review by a court.  In support of court control, one may argue that the arbitrators cannot have the final say on their competence since their jurisdiction is to the exclusion of court jurisdiction. If one would follow this line of thinking, although it may be deemed less convincing in the international context, one might consider imposing some restriction on the right to ask for review by a court. For example, art. 18(3) of the Strasbourg Uniform Law [European Convention Providing a Uniform Law on Arbitration, Europ. T.S. No. 56 (Annex) (Strasbourg 1966)] provides that ‘the arbitral tribunal’s ruling that it has jurisdiction may not be contested before the judicial authority except at the same time as the award on the main issue and by the same procedure.’

…

The Commission, after deliberation, decided not to reintroduce previous draft article 17 but to provide for instant court control in article 16(3) along the lines of the solution adopted in article 13(3). The Commission adopted article 16(3) in the following modified form, subject to redrafting by the Drafting Group:

‘(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this article either as a preliminary question or in an award on the merits. If the arbitral tribunal determines in a preliminary ruling that it has jurisdiction, any party may request, within thirty days after having received notice of that ruling, the Court specified in article 6 to decide the matter, which decision shall not be subject to appeal; while such a request is pending, the arbitral tribunal may continue the arbitral proceedings.’

The Commission decided to align article 13(3) to that modified version of article 16(3) and thus to replace in article 13(3) the time‑period of fifteen days by a time‑period of thirty days and the expression ‘final’ by such words as ‘not subject to appeal.’.

It was noted that the second sentence of article 16(3) did not cover the case where the arbitral tribunal ruled that it had no jurisdiction. Consequently, in such a case article 16(3), read together with article 5, did not preclude resort to a court for obtaining a decision on whether a valid arbitration agreement existed. It was recognized that a ruling by the arbitral tribunal that it lacked jurisdiction was final as regards its proceedings since it was inappropriate to compel arbitrators who had made such a ruling to continue the proceedings.

The threshold provision of s 16(9) reflects the resolution of the UNCITRAL debates and their final resolution in the provisions of art 16 of the Model Law.  It follows that this threshold places the question whether to provide a preliminary ruling solely in the hands of the arbitral tribunal.  This means that the arbitration may proceed to its conclusion by final award on both jurisdictional and substantive matters and leave the parties on publication of the final award to seek to have it set aside or recognition and enforcement refused.  Thus the Respondent’s argument as to efficiency and circularity leads nowhere having regard to the machinery of the Model Law as contained in the Act.  Rather, the issues inherent in that argument are matters for the arbitral tribunal under s 16.

Summary and conclusions

45. For the preceding reasons, I am satisfied that the Applicant has established its claimed basis for an order by the Court for the appointment of an arbitrator for the purposes of the arbitration agreement contained in cl 12 of the Services Agreement.  Whether or not the arbitral tribunal so appointed has jurisdiction to proceed to arbitration under those provisions and the manner in which jurisdictional and substantive matters are heard and determined, particularly having regard to s 16(9), is entirely a matter for the arbitral tribunal.
46. In the course of the hearing of this application, there was a discussion of the three possible candidates for appointment as arbitrator under s 11.  It appeared to be common ground, if not agreed that having regard to the nature and possible complexity of matters to be dealt with by the arbitral tribunal, the more senior candidate would be the appropriate appointee.  I indicated that I also shared this view.  In the process of making the appointment, I intend to adopt the same approach as that adopted by Kaplan J in Pacific International Lines (Pte) Ltd v Tsinlien Metals and Minerals Co Ltd,^[86] which acknowledged the importance of the consensual basis of arbitration, where his Honour allowed a period of seven days for the parties to agree on an arbitrator and make the appointment but, in default, an individual would be appointed by the court.  If the parties fail to make the appointment, I will order the appointment of the more senior candidate, as indicated.
47. The parties are to bring in draft orders to give effect to these reasons.  I reserve the question of costs and will hear the parties further on this issue if necessary.

—

^[1]              Applicant’s outline of submissions dated 29 June 2026 (Applicant’s outline of submissions) and the Respondent’s outline of submissions dated 7 July 2026 (Respondent’s outline of submissions).  The Applicant also made further submissions in reply in support of the contention that there is no proper basis to maintain the forgery allegation (see Applicant’s reply submissions dated 14 July 2026 (Applicant’s reply submissions)).  The evidence relied upon by the Applicant is set out in the Applicant’s outline of submissions, [4]; and see [8]–[13]; and in the Respondent’s outline of submissions, [2]–[15].

^[2]              (1975) 132 CLR 355, 329–361 (Barwick CJ, McTiernan, Gibbs, Stephen and Mason JJ); referring also to Ford by his Tutor Beatrice Ann Watkinson v Perpetual Trustees Victoria Ltd [2009] NSWCA 186, [37] (Allsop P and Young JA); and see Respondent’s outline of submissions, [16]–[20].

^[3]              CB174.

^[4]              (2025) 78 VR 388, 414 [52] (Croft J) (Oil Basins).

^[5]              (2014) 232 FCR 361, [75]; this statement has been applied in at least 12 subsequent cases, namely: Clarke Energy (Australia) Pty Ltd v Power Generation Corp (T/as Territory Generation) and Robert Holt KC [2025] QSC 064, [8], [9] (Kelly J); Energy City Qatar Holding Co v Hub Street Equipment Pty Ltd (No 2) [2020] FCA 1116, [52] (Jagot J); Liaoning Zhongwang Group Co Ltd v Alfield Group Pty Ltd [2017] FCA 1223 (Gleeson J); Blanalko Pty Ltd v Lysaght Building Solutions Pty Ltd (2017) 52 VR 198, [10] (Croft J) — ‘Notwithstanding the fact that the [Act] is a domestic statute in the State of Victoria, it should be interpreted in conformity with international norms with respect to the Model Law, “so far as practicable”’; WDR Delaware Corp v Hydrox Holdings Pty Ltd (2016) 245 FCR 452, [101] (Foster J); Amasya Enterprises Pty Ltd v Asta Developments (Aust) Pty Ltd [2016] VSC 326, [23], [31] (Croft J); Indian Farmers Fertiliser Cooperative Ltd v Gutnick (No 2) [2015] VSC 770, [13] (Croft J); Indian Farmers Fertiliser Cooperative Ltd v Gutnick (2015) 304 FLR 199, [18], [20], [32], [73] (Croft J); Aircraft Support Industries Pty Ltd v William Hare UAE LLC (2015) 324 ALR 372, [59] (Bathurst CJ, Beazley P and Sackville AJA); Robotunits Pty Ltd v Mennel (2015) 49 VR 323, [13] (Croft J); Cameron Australasia Pty Ltd v AED Oil Ltd [2015] VSC 163, [19] (Croft J); International Relief and Development Inc v Ladu [2014] FCA 887, [169] (Kenny J).

^[6]              The 16 September 2025 nomination letter and the candidates’ curricula vitae are at CB 187 and CB 215–‍236; the Respondent’s then solicitors’ response of 19 September 2025 is at CB 188; the further letter of 28 April 2026 is at CB 2415.

^[7]              Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45, 101–103 [215]–‍[222] (Allsop J, Finn and Finkelstein JJ agreeing) (Comandate); Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442, 536 [377]–[378] (Allsop CJ, Besanko and O’Callaghan JJ) (Hancock Prospecting).

^[8]              (2025) 78 VR 388; see also the decision of the Court of Appeal in Oil Basins Ltd v Esso Australia Resources Pty Ltd (2026) 400 FLR 348 (McLeish, Lyons and Kenny JJA).

^[9]              (2025) 78 VR 388, 423 [63].

^[10]             Oil Basins (2025) 78 VR 388, 423 [64], quoting Hancock Prospecting (2017) 257 FCR 442, 483 [149] (Allsop CJ, Besanko and O’Callaghan JJ).

^[11]             C Croft, D Stamboulakis, M Warren, International and Australian Commercial Arbitration (LexisNexis, 2022), [3.47].

^[12]             (2017) 257 FCR 442, 482 [147]–[148], 535–536 [367], [377]–[378].

^[13]             [2020] VSC 476, [160]–[161].

^[14]             Oil Basins (2025) 78 VR 388, 426 [67].

^[15]             Oil Basins Ltd v Esso Australia Resources Pty Ltd (2026) 400 FLR 348, 365–6 [56]–[57] (McLeish, Lyons and Kenny JJA).  

^[16]             Oil Basins Ltd v Esso Australia Resources Pty Ltd (2026) 400 FLR 348, 367 [59] (McLeish, Lyons and Kenny JJA).

^[17]             Respondent’s outline of submissions, [20] (emphasis in original).

^[18]             This was the approach adopted in Gemcan Constructions Pty Ltd v Westbourne Grammar School [2020] VSC 429.

^[19]             [2020] VSC 476, [159].

^[20]             (2017) 256 FCR 442, [359].

^[21]             Respondent’s outline of submissions, [20].

^[22]             Sections 2A(1), (3) of the Act.

^[23]             C Croft, D Stamboulakis, M Warren, International and Australian Commercial Arbitration (LexisNexis, 2022), [4.5].

^[24]             (2024) 281 CLR 171, 186–187 [24]–[26] (Gageler CJ, Gordon, Steward, Gleeson and Jagot JJ).

^[25]             (2025) 78 VR 388, 424–6 [66].

^[26]             Section 11(5) of the Act.

^[27]             Section 16(1) of the Act.

^[28]             Section 16(1) of the Act.

^[29]             (2025) 78 VR 388.

^[30]             (2025) 78 VR 388, 420 [59].

^[31]             UNCITRAL, Analytical Commentary on the Draft Text of a Model Law on International Commercial Arbitration  (A/CN.9/264, 25 March 1985), art 11, [7] (A/CN.9/264).

^[32]             A/CN.9/264, art 6, [4].

^[33]             UNCITRAL, Report of the United Nations Commission on International Trade Law on the work of its eighteenth session (A/40/17, 1985), [63].

^[34]             [1993] 2 HKLR 249.

^[35]             [1993] 2 HKLR 249, [19].

^[36]             [1995] 2 HKLR 62.

^[37]             [1995] 2 HKLR 62, [13].

^[38]             [1995] 2 HKLR 62, [23].

^[39]             T66.9–18.

^[40]             UNCITRAL, 2012 Digest of Case Law on the Model Law on International Commercial Arbitration (2012), 61 [15].

^[41]             (2005) 8 SCC 618.

^[42]             In re Interplay Between Arbitration Agreements under the Arbitration and Conciliation Act 1996 and the Indian Stamp Act 1899 [2023] INSC 1066, [153]–[155]; see also SBI General Insurance Co Ltd v Krish Spinning [2024] INSC 532, [114] (the enquiry is ‘limited to the scrutiny of prima facie existence of the arbitration agreement, and nothing else’).

^[43]             G Cuniberti, The UNCITRAL Model Law on International Commercial Arbitration: A Commentary (Edward Elgar Publishing, 2022), [11.52].

^[44]             Hancock Prospecting (2017) 257 FCR 442, 480 [141] (Allsop CJ, Besanko and O’Callaghan JJ), adopting Tomolugen Holdings Ltd v Silica Investors Ltd [2015] SGCA 57 (Menon CJ, Tin JA and Keong SJ).

^[45]             Hancock Prospecting (2017) 257 FCR 442, 536 [378] (Allsop CJ, Besanko and O’Callaghan JJ).

^[46]             Hancock Prospecting (2017) 257 FCR 442, 482 [147] (Allsop CJ, Besanko and O’Callaghan JJ).

^[47]             Hancock Prospecting (2017) 257 FCR 442, 483 [149] Allsop CJ, Besanko and O’Callaghan JJ).

^[48]             Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG (2024) 281 CLR 171, 186 [24] (Gageler CJ, Gordon, Steward, Gleeson and Jagot JJ).

^[49]             Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG (2024) 281 CLR 171, 186–‍187 [25]–[26] (Gageler CJ, Gordon, Steward, Gleeson and Jagot JJ).

^[50]             [2015] SGHC 225.

^[51]             [2015] SGHC 225, [36].

^[52]             [2015] SGHC 225, [28].

^[53]             Section 16(1) of the Act.

^[54]             [2007] EWHC 665 (Ch), [16] (Lightman J).

^[55]             [2015] SGHC 225, [35].

^[56]             Tjong Very Sumito v Antig Investments Pte Ltd [2009] SGCA 41, [24] (Rajah and Leong JJA).

^[57]             Respondent’s outline of submissions, [20], citing Hancock Prospecting (2017) 257 FCR 442, 536 [377]–‍[378] (Allsop CJ, Besanko and O’Callaghan JJ).

^[58]             Hancock Prospecting (2017) 257 FCR 442, 530–531 [359] (Allsop CJ, Besanko and O’Callaghan JJ), citing Credit Suisse First Boston (Europe) Ltd v Seagate Trading Company Ltd [1999] 1 Lloyd’s Rep 784, 797 (Rix J).

^[59]             Fiona Trust & Holding Corp v Privalov [2007] UKHL 40, [17], [19] (Lord Hoffmann); ss 16(2)–(3) of the Act.

^[60]             (2017) 257 FCR 442, 536 [377], 537 [380] (Allsop CJ, Besanko and O’Callaghan JJ).

^[61]             (2017) 257 FCR 442, 481 [145] (Allsop CJ, Besanko and O’Callaghan JJ).

^[62]             Respondent’s outline of submissions, [20].

^[63]             Transurban WGT Co Pty Ltd v CPB Contractors Pty Ltd [2020] VSC 476, [159] (Lyons J), citing Hancock Prospecting (2017) 257 FCR 442, 482 [148], 538 [390].

^[64]             Respondent’s outline of submissions, [24].

^[65]             Respondent’s outline of submissions, [13], [24].

^[66]             Oil Basins (2025) 78 VR 388, 424–6 [66]–[67].

^[67]             Respondent’s outline of submissions, [13].

^[68]             Hancock Prospecting (2017) 257 FCR 442, 483 [149] (Allsop CJ, Besanko and O’Callaghan JJ).

^[69]             Section 16(1) of the Act.

^[70]             Section 11(5) of the Act.

^[71]             Sections 16(1), 16(9), 34, 36 of the Act.

^[72]             UNCITRAL, Report of the United Nations Commission on International Trade Law on the work of its eighteenth session (A/40/17, 1985), [63].

^[73]             Section 1AC(1) of the Act.

^[74]             Malini Ventura v Knight Capital Pte Ltd [2015] SGHC 225, [27] (Prakash J), referring to Yearbook of the UN Commission on International Trade Law (1985) Vol XVI, p 122 [12]–[13].

^[75]             [2015] SGCA 57, [68] (Menon CJ, Tin JA and Keong SJ).

^[76]             Comandate (2006) 157 FCR 45, 102 [219] (Allsop J, Finn and Finkelstein JJ agreeing).

^[77]             Second Affidavit of Li Guo dated 17 April 2026, [101].

^[78]             Malini Ventura v Knight Capital Pte Ltd [2015] SGHC 225, [42] (Prakash J).

^[79]             T40.13–41.22.

^[80]             Gemcan Constructions Pty Ltd v Westbourne Grammar School [2020] VSC 429, [53], [56]–[57], [77] (Lyons J).

^[81]             Hancock Prospecting (2017) 257 FCR 442, 481 [145] (Allsop CJ, Besanko and O’Callaghan JJ).

^[82]             Affidavit of Lu Ye dated 28 November 2025, [29], [31], [34].

^[83]             Applicant’s outline of submissions, [17].

^[84]             T46.2–9; 50.29–52.3.

^[85]             H Holtzmann and J Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary (Kluwer Law International, 1995), 489 [88]–[89], 528, [161]–[163].

^[86]             [1993] 2 HKLR 249.