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

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 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

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).

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 deals with the substantive merits

A risk of this 'non-participation' approach is that the tribunal proceeds to make an award against that party on the merits of the case and if the challenge to jurisdiction is not successful they will have lost the opportunity to argue their case on the merits. However, in Azov Shipping Co v Baltic Shipping, Rix J stated that in the typical case in which a non-participating party has made his objection clear and