Federal Court of Australia
Federal Court of Australia
Dialogue Consulting Pty Ltd v Instagram, Inc [2020] FCA 1846 File number: VID 369 of 2019
Judgment of: BEACH J
Date of judgment: 22 December 2020
Catchwords: ARBITRATION – stay of proceedings – s 7(2) of International Arbitration Act 1974 (Cth) (IAA) – arbitration agreement – proper law of agreement – scope of arbitration clause – US federal law – Californian state law – whether waiver of right to arbitrate – s 7(5) of IAA – choice of law concerning waiver – application of US law – application of Australian law – waiver established – stay refused CONTRACTS – internet contracts – standard form contracts – formation of contract – notice of terms – choice of law for contract formation – lex forum – application of Australian law – "clickwrap" agreement – "browsewrap" agreement – "sign-in wrap" agreement – application of US law – actual or putative proper law of agreement – unfair contract terms – statutory unconscionable conduct – application of ss 21, 22, 23 and 24 of Australian Consumer Law (sch 2 to Competition and Consumer Act 2010 (Cth)) – arbitration agreement formed – no basis for statutory voidability – declaratory relief refused
Legislation: Competition and Consumer Act 2010 (Cth) ss 45, 46, 47; sch 2 (Australian Consumer Law) ss 21, 22, 23, 24, 25 International Arbitration Act 1974 (Cth) ss 2D, 3, 7, 8, 16, 39; sch 1; sch 2 California Arbitration and Conciliation of International Disputes Act (Cal Civ Proc Code § 1280 et seq.) §§ 1281.2(a), 1297.161 Federal Arbitration Act (9 USC §1 et seq.) § 3 International Commercial Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards (as adopted in 1958 by the United Nations Conference on International Commercial Arbitration at its twenty-fourth meeting) Art II UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended by the United Nations Commission on International Trade Law on 7 July 2006) Arts 1, 7, 8, 16, 34
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