12 The expense and inconvenience of an international arbitration were expressly drawn to Timic's attention before he executed the agreements. See par 5. They were described as "risk factors", and the warning was printed in large type. In those circumstances I am not persuaded that expense and inconvenience are reasons for not insisting on compliance with the bargain the parties made. See also Qantas Airways Ltd v Dillingham Corporation (1985) 4 NSWLR 113 at 118‑119. It is true that there is no international element in the issues in the case. The bias in favour of granting a stay is particularly strong in the case of a contract with an international element. See WC Thomas & Sons Ltd v Bunge (Aust) Pty Ltd [1975] VR 801 at 805. The absence of an international element does not constitute a reason for not referring a matter to arbitration. It merely has the consequence that the bias in favour of granting a stay does not have the added strength applicable to cases where there is an international element. The fact that the issues in dispute do not relate to procedures for operating the franchise business does not seem to me to be a reason for not granting a stay. The desire for an internationally consistent dispute resolution regime is not limited to franchise procedures. I do not accept that the application for a stay is to secure a procedural advantage over Timic. It is true that he will be disadvantaged by having to proceed in the United States, and that the connecting factors are all with Australia. But Subway Systems stipulated for arbitration there, warned Timic of the risks incident upon a foreign arbitration, and gave its reason for inserting an arbitration clause. See par 5. Timic made no attempt to impugn that reason. He has not persuaded me that sufficient reason exists why the matter should not be referred to arbitration in accordance with the agreement.
13 All respondents have filed Defences, and accordingly Hammock and Subway Systems require leave to make their applications. On 6 October 2000 Registrar Efthim ordered that Defences be filed and served on or before 27 October. Hammock and Subway Systems filed their Defences pursuant to that order. It would not be right to penalise a party in a s 53(2) context because of the doing of an act pursuant to a Court order. The applicant did not submit that I should not grant leave, and I will grant it.
14 Hi‑Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1 concerned a clause providing that "disputes arising from this charter" were to be referred to arbitration. All members of the Court agreed that while claims for negligence and breach of duty as a carrier and for breach of the charter contract were claims that "arose from" that contract, claims that a respondent had engaged in misleading and deceptive conduct, made negligent misrepresentations and breached collateral warranties, did not. In view of this it was unnecessary for the Court to deal with the appellants' submission that even if the arbitration clause applied to the trade practices claims, they were not capable of settlement by arbitration. This was said to be because the arbitration clause did not clothe the arbitrators with the powers conferred by the Trade Practices Act on Australian courts. However Emmett J examined the question to some extent. His Honour said it was open to the parties to a dispute as to whether or not a claim arises under the Act to refer that dispute to arbitration. It was also open to them to agree, subject to the proviso to which he later referred, that if a dispute arises between them in the future as to whether one is entitled to a remedy under the Act, they would refer that dispute to arbitration. His Honour continued: