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Results: 4 Answers
International Arbitration
4.
Objections to jurisdiction
4.1
When must a party raise an objection to the jurisdiction of the tribunal and how can this objection be raised?
 
UK
Under Section 31 of the Arbitration Act, an objection that the arbitral tribunal lacks substantive jurisdiction at the outset of the proceedings must be raised by a party no later than the time it takes the first step in the proceedings to contest the merits of any matter in relation to which it challenges the tribunal’s jurisdiction.

It is also possible for a party to object to the tribunal’s jurisdiction during the course of the proceedings. Section 31(2) states that any objection during the course of the arbitral proceedings that the arbitral tribunal is exceeding its substantive jurisdiction must be made as soon as possible after the matter alleged to be beyond its jurisdiction is raised.

In either case, the tribunal may allow a later objection if the delay is considered justified (Section 31(3)). A party’s ability to challenge an award on the basis of lack of jurisdiction (Section 67) may be lost if that party has not raised a timely jurisdictional objection during the arbitral proceedings themselves (Section 73).

For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills
4.2
Can a tribunal rule on its own jurisdiction?
 
UK
Yes. Under Section 30 of the Arbitration Act, unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction - that is, on:

  • whether there is a valid arbitration agreement;
  • whether the tribunal is properly constituted; and
  • what matters have been submitted to arbitration in accordance with the arbitration agreement.
For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills
4.3
Can a party apply to the courts of the seat for a ruling on the jurisdiction of the tribunal? In what circumstances?
 
UK
The Arbitration Act allows a party to request that the court make a preliminary finding on the substantive jurisdiction of a tribunal (Section 32(1)). Further, a party may challenge jurisdiction after an award has been issued and the court will revisit the question of jurisdiction (Section 67). The arbitral tribunal may continue the arbitral proceedings and make a further award while an application to the court under this section is pending in relation to an award as to jurisdiction.

It is also open to a party not to participate in the arbitration and to challenge the jurisdiction of the tribunal under Section 72. A party may choose to use Section 72 where it considers that it is not a party to the arbitration agreement, or that the arbitration agreement does not apply to the dispute in question. It is critical that a party which intends to make use of Section 72 does not compromise that position by participating in the proceedings in any way, such as by making any submissions on jurisdiction to the tribunal (Broda Agro Trade (Cyprus) Ltd v Alfred C Toepfer International GmbH [2010] EWCA Civ 1100), or being involved in the appointment of the tribunal. However, writing to an arbitral institution informing it of a party’s jurisdictional objections is unlikely to constitute ‘participation’ (see The Law Debenture Trust Corporation v Elektrim Finance BV [2005] EWHC 1412). Because Section 72 can only be used by a party which maintains it is not bound to arbitrate, Sections 70(2) and 73 do not apply. Section 72 enables a non-participating party to apply for “a declaration or injunction or other appropriate relief” at any time during the ongoing arbitration, including in relation to jurisdiction. Once an award has been rendered, Section 72(2) also allows a non-participating party to challenge the award under Section 67 on the grounds of lack of substantive jurisdiction. Finally, under Section 66(3), a party may argue that the tribunal lacked jurisdiction to resist enforcement of the award.

For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills