Case: Downer Utilities Australia Pty Ltd v Murra Warra Asset Co Pty Ltd [2026] VSC 48

Guest: Dr Benjamin Hayward, Associate Professor at Monash University (Melbourne, Australia)

Luke Zadkovich and Calum Cheyne are joined this week by Dr Ben Hayward (Monash University, Melbourne) to discuss the Supreme Court of Victoria’s decision in Downer Utilities Australia Pty Ltd v Murra Warra Asset Co Pty Ltd [2026] VSC 48 — a case that shines a spotlight on the practical and legal difficulties posed by hybrid arbitration clauses.

Arising out of the Murra Warra Wind Farm project, this case concerned an arbitration clause providing for arbitration to be conducted by the Resolution Institute in accordance with the ICC Rules — a classic “hybrid” clause. When the dispute crystallised, competing arbitrations were commenced within a day of each other: one before the Resolution Institute, and another before the ICC. This gave rise to a fundamental question — which, if either, of these arbitrations had been validly commenced?

Before Croft J, the parties advanced competing constructions of the arbitration agreement, alongside arguments as to the applicable statutory regime and whether the Court should intervene at all. Central to the dispute was whether the hybrid clause was workable, and how it should be given effect in light of well-established principles favouring party autonomy in arbitration.

The Court ultimately emphasised that, where possible, arbitration agreements should be construed in a manner that gives effect to the parties’ intention to arbitrate, even where the drafting is less than ideal. In doing so, Croft J engaged in a detailed analysis of international authorities on hybrid arbitration clauses, recognising both their enforceability and the practical difficulties they present.

The decision also highlights the continuing importance of the Kompetenz-Kompetenz principle, with the Court exercising restraint in circumstances where questions of jurisdiction were properly capable of determination by the arbitral tribunal itself.

Luke, Calum and Ben draw on both the judgment and broader arbitral practice to explore the risks inherent in hybrid clauses, the limits of judicial intervention, and the drafting lessons for commercial parties navigating complex dispute resolution frameworks.

This is a case that underscores a simple but critical point: when it comes to dispute resolution clauses, clarity is everything.