Hong Kong—challenging jurisdiction—pre-award
Hong Kong—challenging jurisdiction—pre-award

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

  • Hong Kong—challenging jurisdiction—pre-award
  • Overview of challenging arbitral jurisdiction pre-award
  • Principles of Kompetenz-Kompetenz and separability
  • Timing of the objection
  • Nature of the objection
  • Ruling on jurisdiction as a preliminary question
  • Referral of the substantive dispute to the courts
  • Recourse to the Court of First Instance

Overview of challenging arbitral jurisdiction pre-award

During the typical course of an arbitration, the parties to the arbitration may raise a range of objections in relation to whether the tribunal has jurisdiction over certain matters. Section 34 of the Arbitration Ordinance, Chapter 609 (AO), which gives effect to article 16 of the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), states that the tribunal is itself empowered to adjudicate on these challenges as to its jurisdiction. It should be noted that AO, s 34 is intended to minimise delays in arbitral proceedings and is mandatory in nature.

The operation of AO, s 34 differs on whether the challenge as to jurisdiction is made before or after the tribunal issues an arbitral award on the merits. The following discussion focuses on challenges made before an award is issued (ie pre-award)—for challenges as to jurisdiction made after the issue of the award on the merits, see Practice Note: Hong Kong—challenging jurisdiction—post-award.

Principles of Kompetenz-Kompetenz and separability

In giving effect to the Model Law, art 16(1), AO, s 34 enshrines the principles of Kompetenz-Kompetenz and separability of the arbitration clause in Hong Kong arbitration law. According to AO, s 34(1), ‘the arbitral tribunal may rule on its own jurisdiction’ and ‘an arbitration clause which forms part of a contract shall