Arbitral Jurisdiction

Abstract

This article considers the respective roles conferred on courts and tribunals by the Arbitration Act 1996 for resolving disputes over arbitral jurisdiction. A challenge to the validity and scope of an alleged arbitration agreement is a standard choice for a nervous or obstructive disputant. The legal framework established under the Act for responding to such challenges should be interpreted so as to maintain the integrity and efficiency of arbitration, and to deter obstructive behaviour. Pursuit of these aims in turn requires giving priority to the role of the tribunal. To this end, this article argues that the court should adopt a prima facie review standard when dealing with an application to stay litigation proceedings brought in breach of an arbitration agreement. It further argues that in the ordinary course, a court dealing with a challenge to a tribunal’s decision on jurisdiction should adopt a review, and not a rehearing, approach.