Competence of arbitral tribunal to rule on its jurisdiction (cf Model Law Art 16)
16 Competence of arbitral tribunal to rule on its jurisdiction (cf Model Law Art 16)
The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.
For that purpose, an arbitration clause which forms part of a contract is to be treated as an agreement independent of the other terms of the contract.
A decision by the arbitral tribunal that the contract is null and void does not of itself entail the invalidity of the arbitration clause.
Note—
The Model Law provides that such a decision does not ‘ipso jure’ entail the invalidity of the arbitration clause.
A plea that the arbitral tribunal does not have jurisdiction must be raised not later than the submission of the statement of defence.
A party is not precluded from raising such a plea by the fact that the party has appointed, or participated in the appointment of, an arbitrator.
A plea that the arbitral tribunal is exceeding the scope of its authority must be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.
The arbitral tribunal may, in the case of a plea referred to in subsection (4) or (6), admit a later plea if it considers the delay justified.
The arbitral tribunal may rule on a plea referred to in subsection (4) or (6) either as a preliminary question or in an award on the merits.
If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within 30 days after having received notice of that ruling, the Court to decide the matter.
A decision of the Court under subsection (9) that is within the limits of the authority of the Court is final.
While a request under subsection (9) is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.
Note—
This section (other than subsection (10)), is substantially the same as Art 16 of the Model Law.
Subsection (10) makes it clear that, although a decision of the Court is generally final, review of a decision of the Court that is not made within the limits of its powers and functions is not precluded.
This Act’s bill:Explanatory memorandumSecond reading speech
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