AA 1996—challenging an arbitral tribunal’s jurisdiction pre-award (ss 31 and 32)
Produced in partnership with Latham and Watkins LLP
AA 1996—challenging an arbitral tribunal’s jurisdiction pre-award (ss 31 and 32)

The following Arbitration guidance note Produced in partnership with Latham and Watkins LLP provides comprehensive and up to date legal information covering:

  • AA 1996—challenging an arbitral tribunal’s jurisdiction pre-award (ss 31 and 32)
  • Principle of kompetenz-kompetenz
  • Objecting to the substantive jurisdiction of the tribunal
  • Challenging the validity of an arbitration agreement other than by a challenge to jurisdiction under AA 1996, ss 31 or 32

This Practice Note considers the bases on which a tribunal’s substantive jurisdiction can be challenged before an award is made pursuant to the Arbitration Act 1996 (AA 1996). This Practice Note should be read in conjunction with Practice Note: AA 1996—challenging an arbitral tribunal's jurisdiction in court (pre-award)—procedure (s 32).

Principle of kompetenz-kompetenz

AA 1996, s 30(1) enshrines the principle of kompetenz-kompetenz (or competence-competence) in English arbitration law. This principle (as found in the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration) provides that the tribunal should be able to rule whether it has jurisdiction to determine the dispute referred to it.

AA 1996, s 30(1) provides that:

'Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to:

(a) whether there is a valid arbitration agreement,

(b) whether the tribunal is properly constituted, and

(c) what matters have been submitted to arbitration in accordance with the arbitration agreement.’

‘Substantive jurisdiction’ means ‘the matters specified in AA 1996, s 30(1)(a)–(c), and references to the tribunal exceeding its substantive jurisdiction shall be construed accordingly'.

AA 1996, s 30(1) is not mandatory (the parties can expressly agree that the tribunal should not be able to rule on its jurisdiction) but is rarely excluded in practice.

While a tribunal’s ruling on jurisdiction (whether it be