This Practice Note has been updated to incorporate the amendments introduced to the Arbitration Act 1996 (AA 1996), by the Arbitration Act 2025 (AA 2025). References to the AA 1996 are to the Act in its amended form. The Arbitration Act 2025 which came into force on 1 August 2025. For further information see: Arbitration Act 2025 commencement and transitional provisions This Practice Note considers the bases on which an arbitral tribunal’s substantive jurisdiction can be challenged before an award is made, pursuant to the Arbitration Act 1996 (AA 1996), in force in England, Wales and Northern Ireland. This Practice Note should be read in conjunction with Practice Note: AA 1996—challenging an arbitral tribunal's jurisdiction in court (pre-award)—procedure (s 32). For guidance on post-award challenges and appeals under AA 1996, see Practice Note: AA 1996—challenging and appealing arbitral awards in the English court. The principle of kompetenz-kompetenz AA 1996, s 30(1) enshrines the principle of kompetenz-kompetenz (or competence-competence) in English arbitration law. This principle (which is also contained in Article

Grounds of challenge or appeal against arbitration awards An arbitral award can be challenged or appealed under the Arbitration Act 1996 (AA 1996) only on limited grounds; this is consistent with the Act’s overall purpose to ensure the efficient and final resolution of disputes settled by arbitration. A party can: • challenge an award in the national courts of the legal place it was made (ie the seat of the arbitration) to attempt to have it annulled or set aside in whole or in part, or • wait until the successful party seeks to enforce the award before a national court and resist enforcement under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) (or other applicable instrument or law) at that stage The grounds for challenging an award before the courts of England and Wales (England is used as a convenient shorthand in this Practice Note) under AA 1996 are: • lack of substantive jurisdiction of the tribunal (AA 1996, s 67)—for specific guidance,

This Practice Note has been reviewed in light of the new, and is consistent with, the Arbitration Act 2025. 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 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:

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). Reform of s67 by the Arbitration Act 2025 Where a tribunal has ruled on

AA 1996, s 68—what does the section provide? A party to arbitration proceedings may (on notice to the other parties and to the tribunal) apply to the English and Welsh courts challenging an award made in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award (section 68(1) of Arbitration Act 1996 (AA 1996)). England and English are used in this Practice Note as convenient shorthand. Generally speaking, there will be no question regarding the status of a tribunal or arbitrator’s decision (ie whether it is an award or not). If a challenge is made on the ground of serious irregularity and the status of the decision is not clear, the court will consider the status of the decision as a threshold point before it proceeds. A decision cannot give rise to a serious irregularity challenge if the court considers that it is not an award (see ZCCM v Kansanshi). In ZCCM v Kansanshi, Cockerill J set out some useful guidance to

A party to arbitration proceedings may (on notice to the other parties and to the tribunal) apply to the English and Welsh courts challenging an award made in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award (section 68(1) of the Arbitration Act 1996 (AA 1996)). England and English are used in this Practice Note as convenient shorthand. Serious irregularity is defined as irregularity that falls within one or more of the nine exhaustive categories specified in AA 1996, s 68(2)(a)–(i), which the court considers has caused or will cause substantial injustice to the applicant (AA 1996, s 68(2)). For information on the grounds upon which the court may find serious irregularity and on making applications under AA 1996, s 68, see Practice Notes: AA 1996—challenging the award on grounds of serious irregularity (s 68) and AA 1996—challenging and appealing arbitral awards in the English court. In this Practice Note, we consider the nine categories of serious irregularity and provide examples of how they have

This Practice Note deals with serious irregularity challenges where an arbitral award is obtained by fraud or the award or the way in which it was procured is contrary to public policy in England and Wales pursuant to section 68(2)(g) of the Arbitration Act 1996 (AA 1996). This Practice Note should, where relevant, be read in conjunction with Practice Notes: AA 1996—challenging the award on grounds of serious irregularity (s 68) and AA 1996—challenging the award—categories of serious irregularity (s 68). Grounds of serious irregularity—obtained by fraud or contrary to public policy There are nine exhaustive categories of serious irregularity under AA 1996, s 68 pursuant to which a party may challenge an arbitral award. AA 1996, s 68(2)(g) provides that serious irregularity may occur where: • the award is obtained by fraud, or • the award or the way in which it was procured is contrary to public policy The approach of the English court to AA 1996, s 68(2)(g), as with all grounds

This Practice Note considers costs under the Arbitration Act 1996 (AA 1996) including the arbitral tribunal’s powers in respect of costs and how costs are dealt with in an arbitral award. Understanding costs The recovery of costs is an important part of most arbitrations. When considering applying to the tribunal for an award on costs, or resisting an application for costs, it is important to understand: • any costs agreement between the parties • what constitutes ‘the costs of the arbitration’ • the tribunal’s authority to award costs and the basis on which they award costs • how interest will be awarded • the costs award • how to challenge a costs award Costs agreements between the parties The parties cannot enter into an agreement on the allocation of the costs of the arbitration to the effect that one party should pay the costs in any event prior to the dispute (AA 1996, s 60). This is the only mandatory provision of the AA 1996 relating to costs. It would appear that

Under s 49(3) Arbitration Act 1996 (AA 1996), a tribunal has the power, absent any express agreement of the parties, to make an order for interest on any sums awarded. Under AA 1996, s 61, it has the power, again subject to any agreement of the parties, to make an award allocating the costs of the arbitration as between the parties. Sometimes the costs award will be made after a final award ‘save as to costs’ and following submissions from the parties once they know the outcome of the arbitration. Note that under AA 1996, s 60, the parties are precluded from agreeing prior to the dispute arising that one party pay the whole or the part of the costs of the arbitration in any event and regardless of the outcome. Such an agreement is only valid if made after the dispute arises. What costs can be awarded Subject to any agreement between the parties, the tribunal may make an award allocating the costs of the arbitration. Costs

This Practice Note provides an introduction to the powers the courts of England and Wales (England and English are used for convenience) have in relation to arbitral proceedings under English law and the Arbitration Act 1996 (AA 1996), as amended by the Arbitration Act 2025 (AA 2025). Further information is also contained in Practice Note: A guide to the Arbitration Act 1996 (AA 1996) and the ‘Related documents’. The general principle—minimal interference by the courts in the arbitral process The AA 1996 is underpinned by three general principles, which include ensuring party autonomy in the arbitral process with minimum court intervention. Nevertheless, under the AA 1996 the English courts have certain powers which they can use to support the arbitral process. Many of these powers are capable of being excluded by agreement in writing between the parties, although a number are mandatory in accordance with AA 1996, s 4(1) and Sch 1 to the Act. For more information on the general principles, see Practice Note: A guide to the Arbitration Act 1996

The Arbitration Act 1996 (AA 1996) provides a mechanism for parties who wish to commence arbitration but cannot do so within a contractually agreed time period (for whatever reason) to apply to the English, Welsh and Northern Irish (English and England are used throughout) court for an extension of time. The terms of AA 1996, s 12 set high hurdles. English courts will not, grant an extension of time lightly. The AA 1996 gave full effect to the notion of party autonomy and abandoned the idea that the courts enjoyed some general power of supervisory jurisdiction over arbitrations (Haven Insurance v EUI (t/a Elephant Insurance)). Extension of contractual time limit—AA 1996, s 12 AA 1996, s 12(1) provides that where an arbitration agreement covering ‘future disputes’ provides a time limit for taking ‘some step…to begin’ proceedings—whether this is by commencing the arbitration or by way of a contractual pre-arbitration alternative dispute resolution mechanism, such as mandatory negotiation or mediation, the court

Why would an additional award be needed? If the tribunal had failed to deal with one or more claims in the arbitration (eg a claim for interest or costs) then the parties may apply for an additional award dealing with such specific claims under section 57(3)(b) of the Arbitration Act 1996 (AA 1996). The word ‘claim’ is not the same as an ‘issue’ (as used in AA 1996, s 68(2)(d)). ‘Claim’ is narrower than ‘issue’; a claim may give rise to a number of issues or the claim may be just one issue (Torch Offshore LLC v Cable Shipping). AA 1996, s 57(3)(b) is used only to address entire claims that have not been dealt with. This will usually require some analysis of the arbitral award to see whether the claim was dealt with. In Cadogan Maritime v Turner Shipping, the court warned against an ‘unduly narrow and technical construction of the claims being made’, commenting that: ‘this was an arbitration rather than court proceedings. Arbitration is rightly a less formal process and