The following Arbitration practice note produced in partnership with Latham & Watkins provides comprehensive and up to date legal information covering:
Pursuant to section 72 of the Arbitration Act 1996 (AA 1996), a party who takes no part in the arbitral proceedings may question whether there is a valid arbitration agreement, whether the tribunal is properly constituted or what matters have been submitted to arbitration under the arbitration agreement, ie matters of substantive jurisdiction (AA 1996, s 30(1)). Such a challenge is made to the English court for a declaration or injunction or other appropriate relief.
AA 1996, s 72 is a mandatory provision, which means that parties cannot agree to its exclusion (AA 1996, Sch 1).
The existence of this right for non-participants has implications for parties applying for court rulings on jurisdiction pre-award. As the Commercial Court confirmed in Armada v Schiste Oil, if AA 1996, s 72 is engaged, no application can be made under AA 1996, s 32. See News Analysis: Rare judgment from Commercial Court on scope of AA 1996, s 32 and its interaction with AA 1996, s 72 (Armada Ship Management v Schiste Oil And Gas Nigeria).
To be entitled to use AA 1996, s 72, a party must not:
be a part of the appointment process
acknowledge the arbitration clause, or
participate in that part of the proceedings which determines the tribunal’s jurisdiction or which deals
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