In Michael Wilson and Partners Ltd v Emmott – Butterworths Law Direct 6.11.08 the parties had entered into an agreement which provided for English law and London arbitration. When the Claimant commenced arbitration, the Defendant served an amended counterclaim, claiming relief based upon the terms of a further agreement. Permission to make that amendment was opposed by the Claimant. The tribunal ruled in the Defendant's favour, holding that the dispute raised by the amended counterclaim fell within the arbitration clause. It accordingly granted the application to amend. The Claimant applied for an order pursuant to s 67 of the Arbitration Act 1996, challenging the award of the arbitration tribunal as to its substantive jurisdiction. An application by the Defendant for a continuation order pursuant to s 67(2) of the Act was subsequently granted.
Section 67 of the Arbitration Act 1996 provides: '(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court — (a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or (b) 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 … (2) The arbitral tribunal may continue the arbitral proceedings and make a further award while an application to the court under this section is pending in relation to an award as to jurisdiction …'
The Commercial Court held that the decision of the tribunal was not an award of the tribunal as to its substantive jurisdiction. The fact that the Defendant had sought and obtained from the tribunal a continuation order pursuant to s 67(2) of the Act had not amounted to a concession that the decision was an award by the tribunal as to its substantive jurisdiction and therefore susceptible to challenge under s 67. A reasonable recipient of the arbitrator's decision would conclude that the tribunal's decision had consisted of an answer to procedural questions, and would not have regarded the decision, or any part of it, as an award as to jurisdiction.
Accordingly, the application for an order pursuant to s 67 of the Arbitration Act 1996, challenging an award of an arbitration tribunal as to its substantive jurisdiction was dismissed.