ENGLAND & WALES Law and Practice Contributed by: James Stacey, Peter Wickham, Samantha Holland and William Humphries, Slaughter and May
expert opinion on an unrelated matter to several of the claimant’s legal representatives. When considering the basis for such disclosures, the English courts are not bound by the International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration, but they will be considered by the English courts as persuasive authority ( Hal- liburton , Aiteo ). Accordingly, the “non-waivable red”, “waivable red”, “orange” and “green” issues are an important guide to arbitrators sitting in English-seated arbitrations. A failure to disclose may give rise to a ground to chal - lenge the arbitrator, by applying either to the relevant arbitral institution (eg, LCIA Rules 2020, Article 10.1) or to the court (see 4.4 Challenge and Removal of Arbitrators ). Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, including: • whether there is a valid arbitration agreement; • whether the tribunal is properly constituted; and • what matters have been submitted to arbitration in accordance with the arbitration agreement (Section 30 (1)). 5.2 Circumstances for Court Intervention There are three circumstances in which a court can address issues of jurisdiction of an arbitral tribu - nal (apart from at the enforcement stage – see 12.2 Enforcement Procedure ). First, a party may apply to the court for determination of a preliminary point of jurisdiction. Such an applica - tion can only be made with: • the agreement in writing of all the other parties to the proceedings; or • the permission of the tribunal and if the court is satisfied that: 5. Jurisdiction 5.1 Challenges to Jurisdiction
(a) the determination is likely to result in substan- tial savings in costs; (b) the application was made without delay; and (c) there is good reason why the matter should be decided by the court (Section 32). These criteria will be met only in exceptional circum - stances ( VTB Commodities Trading Dac v JSC Antip- insky Refinery [2019] EWHC 3292 (Comm)). While the court is considering a preliminary question of jurisdic - tion, the arbitration may continue and an award may be granted (Section 32 (4)). The 2025 Act has introduced a further restriction to Section 32 by preventing the English courts from making a determination of a preliminary point of juris - diction where the tribunal has already ruled on the question. Second, a party can challenge an arbitral award on grounds of lack of substantive jurisdiction (Section 67); see 11.1 Grounds for Appeal . Third, a party that has not participated in the arbitra - tion proceedings may apply to the court for a declara - tion or injunction to restrain the arbitration proceed - ings by challenging: • the validity of an arbitration agreement; • whether the arbitral tribunal has been properly constituted; or • what matters have been referred to arbitration in accordance with the arbitration agreement (Section 72). The right to object to the substantive jurisdiction of the tribunal can be lost if a party takes part or continues to take part in proceedings without raising an objec - tion (Section 73). 5.3 Timing of Challenge A party can challenge the jurisdiction of the tribunal at any time before the English courts; see 5.2 Circum- stances for Court Intervention .
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