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

Abstract

‘When I use a word’, Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less’. ‘The question is’, said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master—that’s all’.1 There are words, words and words.2 And then, there are arbitration clauses, which we all know, consist of words, commonly drafted by competent legal professionals.3 What the words in a contract mean and how individuals, lawyers, judges, and arbitrators interpret the meaning of words has been the subject of extensive discussion both judicially and academically. Particularly, how an arbitration clause sits in the broader framework of interpreting a contract has garnered interest in the Australian arbitration community in light of a judgment of the High Court of Australia (‘High Court’) in Rinehart v Hancock Prospecting Pty Ltd (Rinehart v Hancock).4