Does Article 8 of the Model Law Call for Full or Prima Facie Review of the Arbitral Tribunal's Jurisdiction?

COURTS IN Model Law jurisdictions are currently divided on an issue that is of great practical and theoretical importance. It concerns the extent of the review of arbitral jurisdiction to be undertaken by a court seised of a referral application based on Article 8(1). Provided that it has been made in a timely manner, such an application can only be dismissed if the agreement is either inapplicable or ‘null and void, inoperative or incapable of being performed’ – in other words if the action does not fall within the ambit of an arbitration agreement which is, from a legal standpoint, fully binding.1 In a nutshell, the debate concerns whether the court can perform a full review of the arbitration agreement's validity and applicability – in which case the claim could only be referred to arbitration upon a finding that the claimant actually acted in breach of an undertaking to arbitrate – or whether the court should rather apply a prima facie standard and refer to arbitration upon finding that there is a reasonable likelihood that the claimant acted in breach of a duty to arbitrate. The text of Article 8(1) provides no clear answer. In practice, this debate matters because the court's role has direct consequences on the cost, duration and complexity of referral, as well as on the likelihood that a court will refuse to assert jurisdiction over a claim that allegedly falls within the ambit of an arbitration agreement. From a theoretical standpoint, the debate is essentially about the true basis of the court's obligation to refer the parties to arbitration and a tension between, on the one hand, ensuring the efficiency of the arbitral process and, on the other hand, dealing promptly and finally with objections to the tribunal's jurisdiction in order to ensure that the …