Page 1
Emden's Construction Law by Crown Office Chambers/Chapter 25 Arbitration/Substantive Jurisdiction of the Arbitral
Tribunal/Application to court under s 32
Application to court under s 32
[25.121]
It seems the intention of the Act is that an application to the court under Arbitration Act 1996, s 32 is to be regarded as
an exceptional course1. This policy should not be pressed too far. If there is a genuine dispute over jurisdiction, it may
be that the sooner it is definitively resolved the better, so that the arbitration can proceed (if it should proceed at all) on a
sound basis. Use of s 32 can result in a huge saving of time and costs 2. Such an application requires the consent of all
parties3, or, as an alternative, the application must have the arbitrator's permission and in addition the court must be satisfied that the court's ruling is likely to produce substantial costs savings, that the application has been made without
delay, and that there is good reason why the matter should be decided by the court 4. A party to the arbitration cannot
evade the restrictions in s 32(2) by making an application to the court for a declaration at common law rather than under
s 325. Nor is it appropriate for a claimant to evade the conditions laid down in s 32 by invoking the court's general powers to grant declarations before it commences its claim in arbitration6. If the parties agree on an application to the court,
the court should normally consider and deal with the application7. An application made without the consent of all parties
must state why it is said that the matter ought to be decided by the court 8. An application under s 32 does not prevent the
arbitral proceedings continuing meanwhile, unless the parties so agree 9. But even in the absence of agreement by the
parties, the arbitrator may decide it is better to await the outcome of the application 10.
1
†††† DAC Report para 141, 147.
2
†††† See Azov Shipping Co v Baltic Shipping Co [1999] 2 Lloyd's Rep 159, Colman J.
†††† Arbitration Act 1996, s 32(2)(a). Arbitration Act 1996, s 40(2)(b) should probably not be read as placing a party under a duty to give
consent.
3
4
†††† Arbitration Act 1996, s 32(2)(b). Cf LCIA Arbitration Rules (2014), art 23.5.
†††† ABB Lummus Global Ltd v Keppel Fels Ltd [1999] 2 Lloyd's Rep 24; cf Vale do Rio Doce NavegaÁao SA v Shanghai Bao Steel Ocean
Shipping Co Ltd [2000] 2 Lloyd's Rep 1.
5
6
†††† HC Trading Malta Ltd v Tradeland Commodities SL [2016] EWHC 1279 (Comm), 166 ConLR 94.
7
†††† See Arbitration Act 1996, s 32(2).
8
†††† Arbitration Act 1996, s 32(3).
9
†††† Arbitration Act 1996, s 32(4).
†††† Arbitration Act 1996, s 31(5) confers on the arbitrator a power to stay the arbitral proceedings. Arbitration Act 1996, s 32(4) confers
on the arbitrator a discretion to proceed; it does not impose a duty to proceed. It is thought that in many cases the better course for saving
costs will be to stay the arbitration proceedings until the application to the court is determined.
10
[25.122]
Page 2
It should be noted that the restrictions on appeal are more draconian under Arbitration Act 1996, s 32 than under s 67.
Where an award has been challenged in regard to substantive jurisdiction under s 67, the leave of the court is required
for an appeal to the Court of Appeal1. Where the court has ruled on jurisdiction under s 32, there is an additional requirement that leave may only be given if the court considers that the question of jurisdiction involves a point of law of
general importance or which for some other special reason should be considered by the Court of Appeal 2.
1
†††† Arbitration Act 1996, s 67(4).
2
†††† Arbitration Act 1996, s 32(6). On appeals to the Court of Appeal, see further [25.339] ff.
[25.123]
The parties cannot agree to exclude the power of the court to determine a question of jurisdiction under Arbitration Act
1996, s 32, since it is a mandatory provision1. But the possibility of pursuing an objection by an application under s 32
is lost in the circumstances set out in Arbitration Act 1996, s 73. See [25.332] ff.
†††† Arbitration Act 1996, s 4(1), Sch 1. At ICE Arbitration Procedure 2010, r 6.4(f) the parties and the arbitrator are directed to consider
whether and to what extent to exclude the right to go to the Court under s 32. This is a misconceived provision, since any such agreement
would be of no effect.
1