CIArb AWARD WRITING TECHNIQUES: JURISDICTIONAL CHALLENGE

CIArb AWARD WRITING TECHNIQUES: JURISDICTIONAL CHALLENGE

Arbitrator may rely on its ability to decide on its jurisdiction as in competence-competence, yet it is often that party may challenge a tribunal’s jurisdiction on many areas such as:
 
Jurisdictional Challenge
 

1. Respondent raised an objection to my jurisdiction to hear the allegations of tort asserted by Claimant. The objection was timely made in accordance with Art. 23.2 of the Rules, “A plea that the arbitral tribunal does not have jurisdiction shall be raised no later than in the statement of defence or, with respect to a counterclaim or a claim for the purpose of a set-off, in the reply to the counterclaim or to the claim for the purpose of a set-off. A party is not precluded from raising such a plea by the fact that it has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.”
2. I wrote to the Parties’ representatives, by letter dated [DATE], and set a schedule for written submissions on the jurisdictional issue.
3. Subsequently, I heard the deliberation by the parties and asked the parties to consider whether they wished me to rule on the jurisdictional issue immediately or defer the issue to the Final Award as I am permitted to do by Art.23.3 of the Rules, “The arbitral tribunal may rule on a plea referred to in paragraph 2 either as a preliminary question or in an award on the merits. The arbitral tribunal may continue the arbitral proceedings and make an award, notwithstanding any pending challenge to its jurisdiction before a court.”
4. The Parties jointly determined that they wished to have the issue dealt with as part of the Final Award which they confirmed by letters dated [DATE].
5. I now deal with the jurisdictional issue as the followings:
   1. Art. 23 of the Rules provides that the arbitral tribunal shall have the power to rule on the objection that it has no jurisdiction.
   2. It is undisputed that the contract entered into between the Parties contains no agreement to arbitrate. The Parties’ Submissions on the question of jurisdiction agree that, consequently, my jurisdiction is founded on the letters dated [DATE].
   3. The plain language of the letters of as quoted above refers to […],  therefore the claims of tortious conduct are closely connected to the contract claims as [Who] owed a duty of reasonable care to accurately represent the capabilities of [What] to perform the work specified in the contract.
   4. The language used by the Parties in the said letters does not expressly refer to the legal nature of the claims asserted by the Parties. I find that especially significant given the fact that the letters were written after the dispute had already arisen and been pending for almost a year i.e. at a time when the Parties knew or should have known the nature of their dispute.
   5. If the Parties had intended to limit the arbitration to claims sounding in contract they had the ability to do so.
   6. It is well-settled that arbitration clauses are to be broadly construed.
6. Accordingly, I FIND that the language of the letters dated [DATE] is sufficiently wide to encompass the claims of tortious conduct raised by [Who] which are closely linked with the contract claims; and 
7. I HOLD that I have jurisdiction to hear the allegations of tortious conduct set forth in [Where] dated [DATE].