The defendant company brought claims in arbitration against the claimant state concerning the suspension and subsequent cancellation by the claimant of a mining licence granted to the defendant under a mining licence agreement. Its request for arbitration followed six weeks after it had sent the claimant a contractual notice of dispute. The licence agreement provided that, in the event of any disputes arising thereunder, the parties would in good faith endeavour to reach an amicable settlement and only if none was reached within a period of three months from a written notice by one party to the other specifying the nature of the dispute and seeking an amicable settlement could either party submit the matter to the exclusive jurisdiction of an ICC arbitration tribunal. In the arbitration the claimant contended that no arbitration proceedings should have been commenced until three months after the notice of dispute and therefore that the arbitrators were without jurisdiction. The claimant’s challenge was rejected by the arbitrators. The claimant subsequently issued an arbitration claim before the court to make an application under section 67 of the Arbitration Act 1996 challenging the tribunal’s award. One of the issues on the claim was whether the challenge to the alleged prematurity of the request for arbitration was one going to the substantive jurisdiction of the arbitrators under section 30(1)(c) and thus within section 67.
On the arbitration claim—
Held, claim dismissed. If, on a challenge to an arbitration award, the issue related to whether a claim could be brought to arbitration, the issue was ordinarily one of jurisdiction and subject to further recourse under section 67 of the Arbitration Act 1996. Conversely, if the issue related to whether a claim should be heard by the arbitrators at all, or at least not before a certain time, the issue was ordinarily one of admissibility, the tribunal’s decision on the issue was final and section 30(1)(c) and thus section 67 of the 1996 Act did not apply. The question for section 30(1)(c) was whether an issue was arbitrable. Given the issue in the instant case was not whether the claim was arbitrable, or whether there was another forum rather than arbitration in which it should be decided, but whether it had been presented too early, the issue did not engage section 30(1)(c) and was not one in relation to which a challenge under section 67 could be made, with the arbitrators in any event being in the best position to decide questions relating to whether the conditions precedent had been satisfied (paras 11, 12–13, 14, 15, 18–19, 20, 21, 38).
Charlie Lightfoot (instructed by Jenner & Block (London) LLP) for the claimant.
Ali Malek QC, Tom Sprange QC and Kabir Bhalla (instructed by and of King and Spalding International LLP) for the defendant.