Originally from European International Arbitration Review (EIAR)

I. Introduction

The English High Court has recently upheld two challenges to the jurisdiction of arbitral tribunals based on a failure by the parties to clearly evidence their intention to arbitrate.1 The actions in the High Court were brought under s.67(1)(a) of the Arbitration Act 1996, which allows for parties to arbitration to apply to the court to set aside an award where the tribunal lacks substantive jurisdiction i.e. jurisdiction to hear the case. This may be, for example, because there is no binding arbitration agreement or because the dispute which has arisen does not fall within the scope of an arbitration agreement. In the first case (Lisnave), the court set aside the award because the court was unwilling to imply an arbitration agreement into a contract based on the parties’ previous course of dealing. In the second case (Hyundai), the court set aside the award because the court found that there was no consensus between the parties as to the formation of a contract, and therefore there was no consensus as to the arbitration provision. It also raised the question of the degree to which the doctrine of separability will ‘save’ an arbitration agreement from invalidity of the main agreement.