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What is KnowHow?
Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Jurisdiction - overview
The Arbitration Act 1996 is referred to as AA 1996.
Stay of court proceedings - to enable arbitration (s 9 Arbitration Act 1996)
A party can apply to the court to stay court proceedings which were started despite a valid arbitration agreement. A court must grant a stay unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. The right to apply for a stay may be lost if the challenging party takes any steps in the proceedings.
Proceedings brought in breach of an arbitration agreement may entitle the defendant to indemnity costs.
For more detail see Practice Note: Stay of court proceedings - to enable arbitration.
Stay of court proceedings - to enable adjudication
If a contract contains an arbitration clause and a party is entitled to adjudicate a dispute under the Housing Grants, Construction and Regeneration Act 1996 the court does not have any jurisdiction to determine whether the arbitration should be stayed to enable an adjudication to take place. It should be noted that a party may request the arbitration tribunal to exercise its discretion to stay the arbitration pending the adjudication.
For more detail see Practice Note: Stay of arbitration - to enable adjudication.
Anti-suit injunctions in arbitration
When faced with an arbitration, a party, for various reasons, may seek to commence a claim in the courts in order to avoid the arbitration. When court proceedings are (or may be) commenced in a foreign court (eg a court other than that of the seat of arbitration) in breach of an arbitration agreement, one of the remedies a party may seek is an injunction, typically from a court in the seat (legal place) of arbitration, restraining the party in breach from (commencing or) continuing with the relevant proceedings. This is commonly referred to as an anti-suit injunction. Injunctions are draconian remedies and will, in practice, only be granted in particular circumstances. Whether to grant an injunction is entirely in the court’s discretion.
For more detail see Practice Note: Anti-suit Injunctions in arbitration.
Challenging jurisdiction - pre award
Section 30(1) of the Arbitration Act 1996 enshrines the principle of Kompetenz-Kompetenz that the tribunal should be able to rule as to whether it has jurisdiction to determine the dispute referred to it. Should a party wish to challenge the tribunal's jurisdiction it may do so to the tribunal under s 31 of AA 1996 or to the court under s 32. The grounds for doing so are that there is no valid arbitration agreement and/or the tribunal has not been properly constituted and/or the matters submitted to arbitration do not accord with the arbitration agreement.
For more detail see Practice Note: Challenging jurisdiction - pre award.
How to challenge the tribunal's jurisdiction in court (pre-award) - procedure
An application to challenge the tribunal's jurisdiction can be made to the court under s 32 of AA 1996. The application is made using an arbitration claim form (Form N8) with supporting evidence.
For more information see Practice Note: How to challenge the tribunal's jurisdiction in court (pre-award) - procedure.
Challenging jurisdiction - post-award
A party to an arbitration may challenge an award on the grounds that the tribunal lacked substantive jurisdiction under s 67 AA 1996. Section 67 can only challenge the tribunal's conclusion as the court has no power to set aside the tribunal's decision. Any challenge under s 67 must be brought within 28 days of the date of the award or, if here has been a process or appeal or review, of the date when the applicant was notified of the result of that process.
For more detail see Practice Note: Challenging jurisdiction - post award.
Challenging jurisdiction by non-participation
A person 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. Such a challenge is to be made to the court for a declaration or injunction or other appropriate relief under s 72 of AA 1996.
For more detail see Practice Note: Challenging jurisdiction by non-participation.
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