This is another one in our series looking at the Law Commission’s review of the Arbitration Act 1996. Here, we are talking about section 67, one of the unicorn sections in the Act, so rarely is it used.

If you object to the tribunal dealing with your dispute, you can stay out of the arbitration and (i) challenge any award later, including at the enforcement stage or (ii) ask the court to decide on jurisdiction (section 72).

Or you can get involved in the arbitration, whilst objecting to the tribunal’s jurisdiction and go to the court to validate the tribunal’s lack of jurisdiction. The majority of the review focusses on this latter scenario when you get involved in the arbitration whilst protesting about it.

The tribunal might lack jurisdiction because there’s no valid arbitration agreement, the tribunal isn’t properly constituted or the arbitration agreement doesn’t cover the matters it has been ask to decide upon.

According to section 30, it’s up to the tribunal to decide on its own jurisdiction (and what turkey votes for Christmas…) so a challenge to the tribunal’s jurisdiction would ordinarily include a challenge to the tribunal itself.

In terms of involving the court, if the parties agree or the tribunal and court approve, then under section 32, the court can decide the issue. But if that’s not an option then comes section 67, which may be the basis to challenge an award just about jurisdiction or an award on the entire dispute.

The concern is that if the tribunal reaches a decision you don’t like, section 67 could have the effect of making the arbitration simply the dress rehearsal and the court the main performance; the court will reconsider the case again from the beginning (i.e. through a rehearing). A similar issue potentially arises on enforcement of overseas arbitral awards and also section 32 (mentioned above). The Law Commission suggests removing this possibility so that where a party has involved itself in the arbitration, and then makes a section 67 challenge, the court would carry out an appeal only, not a rehearing. That seems sensible.

The Law Commission also addresses some issues on the wording of the remedies available in section 67(3), which seems to me to be a "nice to have" amendment rather than a "need to have".

On costs, the Law Commission considers whether even if the tribunal finds it doesn’t have jurisdiction, can it still make a costs award? It concludes that a tribunal probably can already make that order but it’s worth spelling it out. I agree.