The Defendants argued that clause 8(1) made a stay of Court proceedings and referral to arbitration mandatory and that pursuant to Article 16(1) of Schedule 1(1) of the Act, the arbitration agreement survived the termination of the VMAs. The Plaintiffs agreed that in light of Article 16(1), the arbitration clause in the contract was to be considered as a separate contract which remained operative. However, the Plaintiffs argued that while the arbitration agreement might have survived, it did not encompass disputes being dealt with after the principal contract had come to an end and was therefore inoperative.[11] The Plaintiff’s relied on clause 25 of the VMAs which related to disputes and dispute resolution. Clause 25 included provision for cancellation specifically under clause 25.5. The Plaintiffs contended that their cancellation letter complied with clause 25.5 and therefore effected valid termination of the VMAs. However, the Defendants argued instead that the prerequisites of clause 25.5 had not occurred, and that the Plaintiffs were mistakenly relying on clause 25.5 when they were in fact relying on an alleged substantial breach under the Contractual Remedies Act 1979, meaning the VMAs remained operative. In his decision to grant the stay, Associate Judge Osborne held that unless the Plaintiffs could establish the arbitration had in fact become inoperative, Article 8(1) of the Act meant that the Defendants were entitled to a stay of the Plaintiffs’ claims and to have the disputes referred to arbitration.[12] Pursuant to Article 16(1), Schedule 1 of the Act, the arbitral tribunal has the power to rule on its own jurisdiction, including as to the existence or validity of an arbitration agreement.[13] The Plaintiffs failed to shift the burden of the proof. Associate Judge Osborne held that the Defendants had established prima facie that the arbitration agreement remained operative in this case as the evidence indicates that the event which would have rendered the arbitration agreement inoperative…cancellation…did not occur [14]. In reaching his decision to grant the stay to allow the arbitral tribunal to determine whether it has jurisdiction in relation to the dispute, Associate Judge Osborne relied on the approach applied in three recent cases,[15] as summarised by Simon France J in Tamihere v Media Works Radio Ltd[:[16] The authorities were recently reviewed in Ursem v Chung. It seems there is support for three approaches, being immediate referral, a prima facie assessment of whether the arbitration agreement is valid or applies, or a full consideration of the issue. Associate Judge Abbott adopted the prima facie test, an approach I am content to follow for the reasons he gives. It seems to best reflect the right of the arbitration tribunal to determine its own jurisdiction. (footnotes omitted).