The question of the jurisdiction of an arbitral tribunal in international commercial arbitration is a question of some complexity. It can arise at all stages of the arbitration proceeding. Challenges based on the scope of the arbitration agreement or the existence of an arbitration agreement generally arise shortly after the commencement of the arbitration proceedings. The rules of most of the well-recognised arbitral institutions require challenges to jurisdiction to be raised before the filing of the statement of defence.
There are, however, also opportunities for a party to challenge the jurisdiction of an arbitral tribunal as a consequence of a procedural order (where the party contends, for example, that the order goes beyond the scope of the tribunal's authority). Questions of jurisdiction also arise at the enforcement stage; Article V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) provides that recognition and enforcement of the award may be refused, relevantly and amongst other things, where there was no valid arbitration agreement or where the award deals with a difference which is outside of the scope of the arbitration agreement. This paper considers challenges to jurisdiction arising from a claim that there is no valid arbitration agreement in light of recent Australian authorities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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