My article, “Challenges to Substantive Jurisdiction of Arbitral Tribunal Under the English Arbitration Act 1996: A Critical Review” (American Review of International Arbitration, Vol. 36, Issue 2, 2025), provides a detailed technical analysis of jurisdictional challenges. This blog post distils those arguments into a clear, accessible format, while extending the discussion through additional perspectives, particularly on the evolving significance and practical implications of section 67 reforms within English arbitration law.
Context: Jurisdiction, Consent, and Section 67
Section 67 of the English Arbitration Act 1996 provides the primary mechanism for challenging the substantive jurisdiction of an arbitral tribunal. It allows a party to contest an award on the basis that the tribunal lacked substantive jurisdiction or to seek a declaration that the award is of no effect, whether in whole or in part. This reflects the consent principle: arbitral authority derives from party agreement, and awards exceeding that consent are open to challenge. Importantly, section 67 is a mandatory provision, cf. section 4, which means parties cannot contract out of it. This reinforces its role as a safeguard against excesses of arbitral authority.
Substantive jurisdiction is defined through section 30(1), which limits challenges to three exhaustive grounds: the validity of the arbitration agreement, the proper constitution of the tribunal, and whether the matters decided fall within the scope of the arbitration agreement. English courts have consistently interpreted these grounds strictly, as reflected in cases such as Union Marine Classification Services LLC v. Comoros [2015] EWHC 508 and Lifestyle Equities CV & Anor v. Hornby Street (MCR) Ltd & Ors [2022] EWCA Civ 51. This strict approach prevents the expansion of jurisdictional challenges into broader appeals on the merits.
Section 67 applies only to “awards,” which include final, interim, and provisional awards, but not procedural orders. The distinction is significant because only decisions that determine substantive rights and liabilities can be challenged. Courts have emphasized substance over form in making this determination, ensuring that the label attached by a tribunal is not decisive.
The Pre-Amendment Position: Rehearing and Its Discontents
Before the recent reforms, section 67 permitted a full rehearing of jurisdictional challenges. Courts could reconsider the issue afresh, admit new evidence, and entertain new arguments, even if these had not been raised before the tribunal.
While this approach ensured thorough judicial scrutiny, it attracted sustained criticism (see Alexander Gunning, Has a Sufficient Case Been Made for the Law Commission’s Proposals in Respect of Section 67?, 40 Arb. Int’l 25 (2024)). It undermined efficiency by duplicating proceedings, increased costs, and weakened tribunal authority. In practice, section 67 challenges resembled second trials, contrary to arbitration’s promise of finality.
This dissatisfaction formed the backdrop to the UK Law Commission’s reform proposals, which have now been enacted through the English Arbitration Act 2025.
The 2025 Amendments: A Shift in Approach
The amendments introduced through the Arbitration Act 2025 represent a significant recalibration of section 67. They aim to reduce duplication, promote procedural discipline, and strengthen the role of arbitral tribunals. However, these reforms are not without their complications.
1. Restricting New Objections and Evidence
One of the most significant changes is the limitation on raising new objections or introducing new evidence before the court. Under the amended framework, parties are generally precluded from advancing arguments or evidence that were not presented to the tribunal.
There are limited exceptions. A party may rely on new objections or evidence if it shows they were unknown and could not reasonably have been discovered with due diligence during arbitration. This introduces a threshold balancing fairness and procedural efficiency.
The rationale is clear: to prevent parties from strategically withholding arguments for deployment at the court stage and to ensure they present their full case during arbitration. A key concern in situations where new evidence genuinely arises post-arbitration, or earlier objections were impracticable, is that the restriction may yield unjust outcomes.
2. From Rehearing to Review
A central feature of the amendments is the shift from full rehearings to a review-based approach. Courts are prevented from rehearing evidence and instead review the tribunal’s findings.
This marks an important doctrinal shift, aligning English arbitration law more closely with more deferential international practice. It also reinforces the competence-competence principle by giving greater weight to tribunal jurisdictional determinations. Conversely, it may be argued that abolishing full hearings offers no substantive benefit. French courts, located in the jurisdiction of the International Chamber of Commerce (ICC), customarily conduct full hearings. They predominantly function as the supervisory authority in challenges to ICC awards. Thus, a shift by English courts from rehearing to review may not necessarily result in greater efficiency, particularly when compared with their French counterparts.
At the same time, a review-based approach may limit the court’s ability to fully correct errors, particularly in complex or fact-intensive disputes. The absence of a rehearing could reduce the depth of scrutiny applied to jurisdictional questions.
3. Remedies and the Preference for Remission
The amendments also refine the range of remedies available under section 67. Courts now have explicit authority to remit an award to the tribunal, either in whole or in part, for reconsideration. This is coupled with a strong default position in favor of remission.
Under the amended framework, the court must remit the matter unless it would be inappropriate, for example where there is evidence of tribunal bias, an entrenched position, or where remittal would cause inordinate delay undermining the utility of arbitration. Only in such cases may the court set aside the award or declare it to be of no effect, either wholly or partially.
This preference reflects a policy choice to preserve the tribunal’s role as primary decision-maker. Allowing the same tribunal to revisit its award maintains continuity and avoids unnecessary duplication of proceedings.
However, potential drawbacks arise. If a tribunal is unwilling to reconsider its position, remission may cause undue delay and increased costs, meaning the reform’s intended efficiency gains may not materialize.
Evaluating the Amendments: Efficiency vs. Justice
Critically evaluating these reforms highlights a tension between efficiency and fairness. The amendments address concerns about abuse of process, duplication, and delay. They also promote procedural discipline and align English law with global arbitration standards.
On the other hand, the reforms may constrain the ability of courts to ensure that jurisdictional disputes are resolved justly. The restrictions on new evidence and arguments, combined with the shift to a review-based approach, could limit the court’s capacity to fully engage with the merits of a jurisdictional challenge. This concern is particularly acute in technology arbitrations, where developments are rapid and new information may emerge post-award. A framework confined to the tribunal record may thus exclude relevant post-award developments, including technological breakthroughs bearing on substantive jurisdiction.
This raises a broader question about the role of judicial oversight in arbitration. While arbitration is designed to minimize court involvement, it relies on courts to safeguard its legitimacy. If judicial review becomes too constrained, there is a risk that errors may go uncorrected.
Interaction with Existing Safeguards
The amendments must also be understood in conjunction with existing provisions such as section 73, which governs waiver. Parties that participate, or continue to participate, in arbitral proceedings without promptly raising jurisdictional objections may subsequently be precluded from doing so. Jurisdictional objections may be raised only by a party that has contested substantive jurisdiction without participating in the proceedings. This reinforces the emphasis on procedural discipline but also amplifies the impact of the new restrictions.
Together, these provisions create a more stringent framework for section 67 challenges. Parties must raise jurisdictional issues early, as opportunities for later correction are now more limited.
A Cautious Path Forward
In conclusion, the amendments introduced by the Arbitration Act 2025 represent a significant evolution in the law governing jurisdictional challenges. They seek to enhance efficiency, reduce duplication, and reinforce the authority of arbitral tribunals.
However, these benefits come with trade-offs. The new framework may, in certain cases, impede the ability to achieve just outcomes, particularly where new evidence emerges or where earlier objections could not reasonably have been raised.
A more balanced approach may require flexibility in applying these rules, taking into account the specific circumstances of each case. Ultimately, the effectiveness of the reforms will depend on how courts interpret and implement them in practice.The trajectory of section 67 illustrates a broader challenge in arbitration law. It involves reconciling the goals of finality and efficiency with the need for fairness and accountability. The 2025 amendments move the balance in favor of efficiency, but whether they strike the right equilibrium remains an open and evolving question, and they arguably carry significant risks for the reasons outlined above. This raises the broader question of whether efficiency has been prioritized at the expense of substantive justice.
- Postdoctoral Fellow, EW Barker Centre for Law & Business, National University of Singapore (NUS); Barrister (Lincoln’s Inn); PhD in Law (Humboldt); LLM (Warwick). ↩︎