Originally from The American Review of International Arbitration (ARIA)

PAGE PREVIEW

I.   INTRODUCTION

     Arbitration is a private dispute resolution mechanism chosen by parties to settle disputes without resorting to litigation, thereby excluding or limiting the jurisdiction of national courts, subject to specific conditions and exceptions. The parties’ agreement to arbitrate—rather than litigate—is the foundation of international arbitration and reflects their mutual consent to submit disputes to arbitration.  Many commercial contracts include clauses mandating resolution through international commercial arbitration, reinforcing this principle of party autonomy. As Pieter Sanders observed, “the existence of an arbitration agreement deprives the courts of their jurisdiction. The judge becomes incompetent when the defendant invokes an arbitration agreement.”  This highlights that arbitration agreements not only establish jurisdiction for arbitral tribunals but also restrict judicial intervention. Parties may freely determine the substantive law governing their contract, the law applicable to the arbitration agreement under the doctrine of separability, procedural rules for the proceedings, and the seat of arbitration. They may also grant or limit arbitrators’ authority to decide on their own jurisdiction. This deliberate exclusion of national court authority, when expressly agreed upon, empowers arbitrators with exclusive jurisdiction to resolve disputes, underscoring arbitration’s central premise: party consent as the foundation of private, enforceable dispute resolution.

     An American decision has affirmed that instituting judicial proceedings after consenting to arbitration constitutes a contractual breach that may be asserted as a defense.  In private law disputes, arbitration is governed by a distinct legal architecture that transcends ordinary procedural rules, reflecting a synthesis of private ordering, international treaty obligations, and national legislation that collectively reinforce party autonomy.  Its proliferation is frequently attributed to perceptions of efficiency, confidentiality, and the international enforceability of awards, though some scholars have cast doubt on the extent to which these advantages are realized in practice. 

     National courts are engaged primarily in commercial disputes to the extent that domestic legislation reserves their supervisory jurisdiction in limited circumstances, the absence of which could otherwise implicate public policy or broader public interests. Section 67 of the English Arbitration Act 1996 exemplifies this carve-out, granting English courts authority to review arbitral determinations of their own jurisdiction when rendered as an “award.” In the U.K., reinforcing the arbitration framework may be particularly important to preserve its longstanding reputation for neutrality and procedural rigor, especially in light of skepticism engendered by the nation’s withdrawal from the European Union. Brexit has exerted wide-ranging adverse effects across sectors of the British economy, including in the field of dispute resolution.

     This article examines the circumstances under which challenges are brought pursuant to section 67 of the Arbitration Act 1996, the procedural prerequisites for such challenges, and the judicial approaches employed in exercising this jurisdiction. It further offers a critical assessment of the strengths and limitations of section 67, the Law Commission’s proposed reforms, and their incorporation into the English Arbitration Act 2025, which amended relevant provisions of the Arbitration Act 1996, weighing the anticipated benefits and drawbacks of these reforms. In addition, the article advances recommendations aimed at strengthening the English arbitration framework, which continues to be regarded as amongst the preeminent venues for international arbitration.