ENGLAND & WALES Law and Practice Contributed by: James Stacey, Peter Wickham, Samantha Holland and William Humphries, Slaughter and May
5.4 Standard of Judicial Review for Jurisdiction/Admissibility
and void, inoperative or incapable of being performed (Section 9 (1)). The burden of proof is on the applicant to establish the existence of an arbitration agreement and that it covers the matter in dispute. In Mozambique v Privinvest Shipbuilding SAL (Hold- ing) [2023] UKSC 32, the Supreme Court confirmed the relevant test to be as follows: • the court must identify the matters that have been or will foreseeably be raised in the court proceed - ings, and determine if each matter falls within the scope of the arbitration agreement; • a matter need not cover the whole of the dispute; • a matter is a substantial issue, not an issue that is peripheral or tangential to the subject of the proceedings; • a common-sense approach to evaluating the sub - stance and relevance of a matter should be taken; and • the true nature of the matter must be considered, as well as the relevant context. A party must challenge the court’s jurisdiction within the time limit for acknowledging service of the claim form. The right of a stay may be lost where the appli - cant has taken steps in court proceedings to answer the substantive claim. This can include participating in a case management conference and inviting the court to make related orders ( Nokia Corp v HTC Corp [2012] EWHC 3199 (Pat)). The court has an inherent jurisdiction to stay pro - ceedings even where Section 9 of the 1996 Act is not satisfied. The court has exercised this discretion where there is a dispute regarding the validity or scope of the arbitration agreement ( Golden Ocean Group v Humpuss Intermoda Transportasi [2013] EWHC 1240 (Comm)). If a party commences litigation in another jurisdiction, the party against whom proceedings are commenced can apply to the English courts for an anti-suit injunc - tion. The English courts may grant an anti-suit injunc - tion where foreign court proceedings are brought in breach of an arbitration agreement, due to its equi - table jurisdiction under the Senior Courts Act 1981. This includes proceedings in breach of foreign-seated
Where the substantive jurisdiction of the tribunal is challenged under Section 67, the standard of review is currently de novo and will take place via a full rehear - ing ( Dallah Real Estate & Tourism v Government of Pakistan [2010] UKSC 46). However, the 2025 Act provides for court procedure rules for Section 67 applications to be amended to the effect that, unless the court considers otherwise in the interests of justice, where the tribunal has already ruled on its own jurisdiction and the Section 67 appli - cation is made by a party who took part in the arbitral proceedings: • evidence heard by the tribunal must not be reheard by the court; and • no new grounds of objection nor evidence may be put before the court, unless the applicant did not, and could not, with reasonable diligence have done so before the tribunal. The Ministry of Justice is considering the extent to which changes need to be made to the court pro - cedure rules to reflect these amendments and the timescales in which any changes should be made. Questions of admissibility are separate from questions of jurisdiction. A dispute as to the jurisdiction of the tribunal concerns whether a tribunal has the power to determine the dispute in question at all, whereas questions of admissibility concern whether the tribu - nal will exercise its power in relation to a particular claim submitted to it where there is an alleged defect in the way the claim has been brought. For exam - ple, the English High Court has held that the ques - tion of whether a party had complied with a multi-tier dispute resolution clause raised questions of admis - sibility rather than jurisdiction, and that it therefore did not have the power to review the tribunal’s deci - sion ( Republic of Sierra Leone v SL Mining Ltd [2021] EWHC 286 (Comm); NWA v NVF [2021] EWHC 2666 (Comm)). 5.5 Breach of Arbitration Agreement A court shall stay court proceedings in respect of a matter that under an arbitration agreement is to be referred to arbitration unless the agreement is null
210 CHAMBERS.COM
Powered by FlippingBook