Originally from the Leading Arbitrators' Guide to International Arbitration - Fourth Edition

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I. INTRODUCTION

An arbitrator’s jurisdiction stems from a voluntary act. Unlike a judge’s authority to hear the parties and make a final decision, an arbitrator’s jurisdiction can only be based upon the will of the parties (not the product of legislation), whether expressed in a contract in general terms covering a future dispute or in a separate agreement covering an existing dispute. 

Consent—the expression of the will of the parties—either exists or it does not.  It either covers a specific issue or it does not. For this reason, one might (naively) suspect that challenges to arbitration would be few and far between. For the most part, in commercial arbitration, they are less frequent than in certain types of litigation in certain jurisdictions.

However, objections to jurisdiction do arise in international arbitration (and with sufficient frequency that the editors of this compendium consider that a chapter on jurisdiction is merited). A party may challenge jurisdiction on grounds that it is not a signatory to the arbitration agreement, that it did not have the capacity to enter into the arbitration agreement, or that the arbitration agreement is “pathological” (amongst other reasons). It may also argue that certain claims are outside of the arbitration agreement. A party challenging jurisdiction may do so in good faith or merely as a ploy: a dilatory tactic during the course of the arbitration or an ex-post attempt to set aside the award—a last, desperate action by a party who senses that the end is near.