Whether question of whether a matter has been settled prior to arbitration can fall within scope of section 67 of the Arbitration Act 1996

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Comm/2014/1476.html&query=title+(+sun+and+united+and+kasteli+)&method=boolean

Section 67 of the Arbitration Act 1996 provides that a party can challenge an award of a tribunal “as to its substantive jurisdiction”. Substantive jurisdiction is defined in the Act as meaning whether there is a valid arbitration agreement, whether the tribunal is properly constituted, or “whether matters have been submitted to the arbitration in accordance with the arbitration agreement”.

In this case, the tribunal was asked to resolve the question of whether or not the parties had reached a binding settlement (here, in relation to costs). The claimant argued that where there is an issue as to whether there remains any dispute between the parties, that is a dispute about “whether matters have been submitted to the arbitration in accordance with the arbitration agreement”. If there is no dispute, the tribunal has no jurisdiction. The defendant countered that the tribunal had jurisdiction because it was being asked to resolve the question of whether or not there had been a settlement.

There is no prior authority or textbook commentary on this issue. Hamblen J concluded that the defendant was correct: “In my judgment, where there is a dispute as to whether the claim….which has been referred to arbitration has been settled that will generally fall within the reference made to the arbitral tribunal” and hence falls outside the scope of section 67.