Jurisdictional challenges under section 67 and section 30(1)(b): reflections on procedural irregularity in tribunal constitution

Abstract

Abstract This article explores the Law Commission’s proposed reforms to section 67 of the English Arbitration Act 1996 and, in particular, the missed opportunity to establish a threshold test for challenges to the substantive jurisdiction of an arbitral tribunal. The current reforms are chiefly concerned with the manner through which the English Courts are to conduct a section 67 challenge, rather than the principles to be applied. Through a comparative assessment of the approach in other jurisdictions, we propose that a two-factor test be introduced that requires any challenge of substantive jurisdiction to demonstrate a breach that (i) is more than de minimis and (ii) results in material prejudice. Such a test would help to dissuade frivolous challenges, bolster England as a pro-arbitration destination, and bring England further into line with other, well-respected jurisdictions that impose similar tests.