accordingly it could not be confidently expected that any later stay application brought by Trina pursuant to s7 of the IAA would be successful. Accordingly, his Honour considered that there was no good reason to exercise his residual discretion not to grant leave to Jasmin to serve Trina with court proceedings out of the jurisdiction. Trina appealed. Following Edelman J's decision, and prior to the hearing of the appeal before the Full Court of the Federal Court, the Arbitrator rendered a final award on the merits against Jasmin and JRC, and Jasmin made application before the New York courts (ie the courts at the seat) to set aside the final award. Appeal Decision The Full Court of the Federal Court of Australia dismissed the appeal. All three members of the Court were of the view that the trial judge’s discretion did not miscarry. However, they were divided on the question of the proper law to apply to determine whether there was an arbitration agreement in existence between Trina and Jasmin. Greenwood J was of the view that to give effect to the “structured integrated coherence” of the international arbitration system, the question whether a party to a stay application under s 7 of the IAA is a party to an arbitration agreement should be determined by the same choice of law rules selected in s 8(5)(b) of the IAA (reflecting Article V(1)(a) of the New York Convention) – namely, the proper law of the putative arbitration agreement, or failing any indication thereon, the law of the seat: [82]-[83]. Notwithstanding that the trial judge applied (erroneously) the lexi fori instead of the putative proper law of the arbitration agreement, Greenwood J considered that the trial judge could not be satisfied (on a leave to serve-out application on the incomplete material before him) that a stay application would in due course be successful: [87] and [94]. Accordingly, in Greenwood J’s view, the trial judge’s discretion did not miscarry. On the other hand, Beach J (with whom Dowsett J generally concurred), endorsed the view of the trial judge that a distinction applies between the law to be applied to determine the existence (ie contract formation) and validity of an arbitration agreement. While validity is to be tested according to the putative proper law of the contract, Beach J considered that the choice of law rules in Australia dictated that the lex fori be applied to determine questions of contract formation (following Brennan and Gaudron JJ in Oceanic Sun Line Special Shipping Co Inc v. Fay).9 I note that this is not a universal approach. Some jurisdictions (including the United Kingdom) apply the law of the putative contract to determine the question.10 Beach J was not persuaded that the specified choice of law rules in s 8(5)(b) [on an enforcement application] should be implied into s 7 [on a stay application]. It is widely accepted that s 8(5)(b) [and its counterparts in other jurisdictions], while speaking in terms of “validity”, extends to the ground that the award debtor is not a party to the arbitration agreement: [164]. 11 Beach J observed (at [182]): “The fact that s 8(5)(b) provides for a choice of law different to the law of the forum in relation to whether an “arbitration agreement” exists to which a party is bound, does not entail that the same choice of law needs to be made for s 7(2)… s 7(2) contains no provision requiring the creation of a legal fiction purportedly justified by some perceived consistency with s 8(5)(b). Notably, Trina US has not cited any compelling international authority that supports its position…” Beach J further noted (at [184]): “…if there are anomalies that now arise because the Final Award has been handed down, they should properly be assessed and dealt with in any stay application under s 7(2). But the idiosyncratic circumstances of the present case arising because the Final Award has now been handed down, cannot drive the proper analysis concerning s 7(2) and the choice of law question.”