The Proper Case for the Inapplicability of Fiona Trust to Statutory Adjudication after Bresco

Myron Phua

September 2021

The second prize winning entry in the Hudson Essay Prize 2020

This paper analyses the Fiona Trust presumption, being the principle that the parties to an arbitration agreement are presumed to intend that any dispute arising out of their relationship will be decided by the same tribunal. It questions whether it is relevant in construing the phrase ‘a dispute arising under the contract’ in section 108(1) of HGCRA 1996, which guarantees the right to adjudicate such disputes. Further it questions whether a restrictive interpretation of section 108 is also satisfactory. The author considers whether the Supreme Court’s recent observations in Bresco shed further light on the matter and concludes that the inapplicability of Fiona Trust does not mean that section 108(1) should be narrowly construed, but generously interpreted by virtue of its legislative aims.

Introduction – I.    Understanding section 108 HGCRA and the Fiona Trust principle – A.    Section 108 HGCRA – B.    Fiona Trust – II.    The proper case for the inapplicability of Fiona Trust to section 108 – A.    The conflicting authorities – B.    Two reasons why Fiona Trust should not apply – C.    Bresco does not change the analysis – D.    The inapplicability of Fiona Trust does not mean that section 108(1) should be narrowly construed – Conclusion  

The author: Myron Phua is an Associate at Herbert Smith Freehills

Text: 15 pages