UK Law and Practice Contributed by: Roger Gherson, Emma Anderson, Cong Gao, Elizaveta Rachkova and Galiya Mustafina, Gherson Solicitors LLP
5. Jurisdiction 5.1 Challenges to Jurisdiction
5.3 Timing of Challenge An objection to substantive jurisdiction must generally be raised at the outset of arbitral proceedings, no later than the point at which the objecting party takes its first step to contest the merits, under Section 31 (1) of the Arbitration Act 1996. Before the tribunal has ruled, a party may apply to the tribunal itself under Section 30 or, in limited circumstances (with the agreement of all parties or the tribunal’s permission), to the court under Section 32, as clarified by Section 5 of the Arbi - tration Act 2025. Once the tribunal has ruled on its own jurisdiction, any further challenge can only be For jurisdictional challenges under Sections 32 and 67 of the Arbitration Act 1996, English courts apply a de novo standard, determining the jurisdictional question for themselves rather than deferring to the tribunal’s reasoning, as confirmed by the Supreme Court in Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs , Government of Pakistan [2010] UKSC 46 and applied in Central Trading & Exports Ltd v Fioralba Shipping Co [2014] EWHC 2397 (Comm). This same de novo, full-rehearing standard applies at the enforcement stage under Section 103 (2)(b), where a New York Convention award is resisted for want of a valid arbitration agreement, per Dallah . However, the Arbitration Act 2025 has narrowed this standard specifically for Section 67 post-award challenges, restricting new grounds and evidence and generally barring the rehearing of evidence already heard by the tribunal, where the objecting party participated in the tribunal’s jurisdictional ruling. 5.5 Breach of Arbitration Agreement Under Section 9 of the Arbitration Act 1996, a party against whom proceedings are brought in respect of a matter covered by an arbitration agreement may apply for a stay, and the court “shall grant a stay” unless satisfied that the agreement is null and void, inopera - tive or incapable of being performed, as confirmed by the Supreme Court in Republic of Mozambique v Privinvest Shipbuilding SAL ( Holding ) [2023] UKSC 32. This reflects a strong general willingness of the English courts to give effect to arbitration agreements and stay competing litigation, consistent with the pro- brought after an award under Section 67. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility
The principle of competence-competence is firmly established in England and Wales under Section 30 (1) of the Arbitration Act 1996, which provides that, unless the parties agree otherwise, the tribunal may rule on its own substantive jurisdiction, including whether a valid arbitration agreement exists, reinforced by the separability doctrine under Section 7 as applied by the House of Lords in Premium Nafta Products Ltd v Fili Shipping Co Ltd [2007] UKHL 40. The Arbitra - tion Act 2025 strengthened this principle by amending Section 32 to confirm that a party may only ask the court to determine jurisdiction as a preliminary matter where the tribunal has not already ruled on the issue, rather than treating a court application as an appeal. A tribunal’s jurisdictional ruling can still be challenged post-award under Section 67, although the 2025 Act now limits this to a review rather than a full rehearing where the objecting party has already participated in the tribunal’s jurisdictional process. 5.2 Circumstances for Court Intervention Courts may address jurisdiction under Section 32 (a preliminary point, only if the tribunal has not yet ruled, per the Arbitration Act 2025) or Section 67 (post-award challenge), generally showing marked reluctance to intervene out of respect for the tribunal’s competence- competence under Section 30 (1) of the Arbitration Act 1996. An exception arises at enforcement: in Dallah Real Estate and Tourism Holding Co v Ministry of Reli- gious Affairs , Government of Pakistan [2010] UKSC 46, the Supreme Court held that where enforcement of a New York Convention award is resisted under Sec - tion 103 (2)(b) for want of a valid arbitration agreement, the enforcing court must determine jurisdiction afresh rather than defer to the tribunal’s finding. Negative jurisdictional rulings can similarly be chal - lenged in court, since Section 67 does not expressly distinguish between positive and negative jurisdic - tional rulings. However, to the best of the authors’ knowledge, there is no directly on-point, named Eng - lish judgment confirming a successful Section 67 challenge to a negative jurisdictional ruling.
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