Jurisdictional Disputes under the Arbitration Act 1996: A Procedural Route Map

IT IS some years since the Arbitration Act 1996 (‘AA 1996’ or ‘the 1996 Act’) introduced into the arbitral law of England and Wales1 principles of Kompetenz-Kompetenz largely derived from the UNCITRAL Model Law on Arbitration (‘Model Law’).2 It did so by providing that, unless otherwise agreed by the parties, and subject to challenge by any available arbitral process of appeal or review or in accordance with the provisions of Part I of the 1996 Act, an arbitral tribunal may rule on its own substantive jurisdiction,3 that is, as to whether there is a valid arbitration agreement, whether the tribunal is properly constituted and whether the matters in question have been submitted to arbitration in accordance with the arbitration agreement.4 There is, now, a significant body of case law concerning this new regime and its relationship with the court's power to consider jurisdictional issues whether under express provisions of the 1996 Act or at common law. This article written in early 2004, and revised for publication in mid 2005, considers, in the light of that case law and the provisions of the 1996 Act, the options available to the parties and the tribunal for dealing with questions concerning the tribunal's substantive jurisdiction where the seat (the legal place) of an arbitration is in England and Wales.