In Michael Wilson & Partners Limited (A company incorporated in the British Virgin Islands) v John Forster Emmott [2008] EWHC 2684 (Comm), the court was asked to consider whether a decision of an arbitral tribunal consisting of an answer to two procedural questions was an award as to its substantive jurisdiction, and as such open to challenge under s.67 Arbitration Act 1996 (the Act).

Michael Wilson & Partners (Michael Wilson) provided legal services in Kazakhstan. In an Agreement dated December 2001 John Foster Emmott (Emmott) agreed to join Michael Wilson as director and shareholder. This Agreement came to an early end and arbitration proceedings were commenced by Michael Wilson.

The tribunal issued a decision entitled "Sixth Procedural Order" (Procedural Order) which dealt with both an application by Emmott to amend his counterclaim and his application for specific disclosure. Michael Wilson sought to challenge the arbitrators' order, under s.67 of the Arbitration Act, on the grounds that it was an award as to their substantive jurisdiction and should be set aside.

S.67 of the Act, allows a party to arbitral proceeding to apply to the court:

"challenging any award of the arbitral tribunal as to its substantive jurisdiction; or…for an order declaring an award made by the tribunal on the merits to be of no effect, in whole or in part, because the tribunal did not have substantive jurisdiction."

It was held that the tribunal's order was of a purely procedural nature, namely amendment and disclosure, and was not an award of the tribunal as to its substantive jurisdiction. A reasonable recipient of the order would come to this conclusion due to the contents of the order and the title of the order itself (Sixth Procedural Order – emphasis added). Furthermore the language used by the tribunal within the order was not the formal language expected of a final and binding decision. For these reasons Michael Wilson's s.67 challenge on substantive jurisdiction failed.