AA 1996—challenging jurisdiction by non-participation (s 72)
Produced in partnership with Latham & Watkins

The following Arbitration practice note produced in partnership with Latham & Watkins provides comprehensive and up to date legal information covering:

  • AA 1996—challenging jurisdiction by non-participation (s 72)
  • Grounds for challenging jurisdiction by non–participation—AA 1996, s 72
  • Rights of non-participants to challenge awards
  • Making the application

AA 1996—challenging jurisdiction by non-participation (s 72)

Grounds for challenging jurisdiction by non–participation—AA 1996, s 72

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 nonparticipants 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, this creates a threshold condition to using 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:

  1. be a part of the appointment process

  2. acknowledge the arbitration clause, or

  3. participate in that part of the proceedings which determines the tribunal’s jurisdiction or which

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