AA 1996—challenging substantive jurisdiction post-award (s 67)
AA 1996—challenging substantive jurisdiction post-award (s 67)

The following Arbitration guidance note provides comprehensive and up to date legal information covering:

  • AA 1996—challenging substantive jurisdiction post-award (s 67)
  • The tribunal's substantive jurisdiction
  • Challenging the award—lack of substantive jurisdiction (AA 1996, s 67)
  • Examples of successful challenges under AA 1996, s 67
  • Examples of unsuccessful challenges
  • Consequences of a challenge under AA 1996, s 67

This Practice Note considers the ability of parties to arbitral proceedings to challenge awards on grounds of lack of substantive jurisdiction before the courts of England and Wales (England and English are used as convenient shorthand) pursuant to section 67 of the Arbitration Act 1996 (AA 1996).

Under English law, a party can challenge an award of an arbitral tribunal regarding its ‘substantive jurisdiction’ (AA 1996, s 67(1)(a)) or seek an order declaring that an award on the merits if of no effect (in whole or in party) because the tribunal did not have substantive jurisdiction (AA 1996, s 67(1)(b)). It is clear that the final determination of the tribunal’s substantive jurisdiction is a matter for the courts of the seat of arbitration (C v D). If the seat of arbitration is London (ie England), then the exclusive supervisory jurisdiction resides with the English courts, and no challenge can be brought in other jurisdictions (C v D).

This Practice Note includes practical guidance provided by Richard Power of Clyde & Co LLP.

The tribunal's substantive jurisdiction

Unless otherwise agreed by the parties, it is for the arbitral tribunal to rule on its own 'substantive jurisdiction' (AA 1996, s 30(1)).

Under AA 1996, ‘substantive jurisdiction’ refers to the following jurisdictional matters:

  1. whether there is a valid arbitration agreement

  2. whether the tribunal is