Section 72 of the Arbitration Act 1996 provides that “a person alleged to be a party to arbitral proceedings but who takes no part in the proceedings may question (a) whether there is a valid arbitration agreement, (b) whether the tribunal is properly constituted, or (c) what matters have been submitted to arbitration in accordance with the arbitration agreement by proceedings in the court for a declaration or injunction or other appropriate relief”. It also provides that this party has “the same right as a party to the arbitral proceedings to challenge an award (a) by an application under s.67 on the ground of lack of substantive jurisdiction in relation to him, or (b) by an application under s.68 on the ground of serious irregularity…”.

The Court of Appeal considered the scope of s.72 in Broda Agro Trade (Cyprus) Ltd v Alfred C Toepfer International GmbH [2010] EWCA Civ 1100, a case which originated in a GAFTA arbitration. The Respondent in the arbitration had disputed the tribunal’s jurisdiction, however the tribunal ruled that it did have jurisdiction and ordered the parties to file submissions on the substantive dispute, which they proceeded to do. The Claimant was awarded damages and was given permission by the court to enforce this award. The Respondent made an application under s.72 for a declaration that there was no valid arbitration agreement, and argued that making submissions on the merits did not amount to “taking part” in the arbitration for the purposes of s.72. The High Court disagreed with this argument and rejected the application.

The Court of Appeal agreed, holding that there was no basis for limiting s.72, and that it applied to arbitral proceedings concerning the tribunal’s substantive jurisdiction and to proceedings relating to the merits of the substantive dispute. A party who participates in an arbitration but is disappointed with the result cannot rely on s.72, however he can challenge the award under s.67 for lack of substantive jurisdiction. Such a challenge will be subject to the relevant time limit, which may only be extended if the court thinks it appropriate. The court did not consider it to be so in this case.