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CIArb AWARD WRITING TECHNIQUES: JURISDICTIONAL CHALLENGE

5/11/2021

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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].
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    AWARD WRITING BLOG FOR ARBITRATION

    Objective of this Page:I am sharing these information with a caveat that these information is for educational purpose only and shall not be taken as an advice be it legal or otherwise. You should seek proper advice to your case with the relevant professionals. The author cannot guarantee the accuracy of the information so provided here.

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      • CIPAA Procedure >
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    • Arbitration >
      • Appointment of Arbitrator >
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      • PAM Arbitration Procedure
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        • Drawdown
      • Award Writing Blog >
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      • QMDJ - Shifting Palace
    • Audit & Cases >
      • Cases - REA Hotel
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    • Newsletter >
      • MBS FengShui Reinvestigated
    • FAQ
    • E-Store
  • Educator
    • Author I am...
    • Speaking Engagement >
      • International Contract
      • PAM cpd UNLIMITED 2.0
      • Arch Edu Practice Paper - 3Ds Pedagogy
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    • Journey in USM(Arch) >
      • Thesis >
        • Site Analysis
        • Urban Design Approach
        • Sketch Design
        • Model Based Paradigm
        • Technical Studies
      • Studio 01
      • Studio 02
    • Discourse in Studio 6 >
      • Ideation
      • The Production Model >
        • The Actors
        • The Stage
        • Urban Mass
        • The Box
        • The Play
        • The Break
        • The Newsletter
        • The Document
        • The Presentation
    • d:KON 4 >
      • Actors >
        • Chua LiCheng
        • Ng KenHong
        • Sean Tan
        • Peggy Chai
        • Elliotte Teoh
        • Vincent Tow
        • TzeLer
        • Elaine
        • Ng SongChun
        • Carissa Foong
        • Ng WeiMun
        • Ng ChenYin
        • Nicol Ong
        • Adron Liang
        • Ivan Sung
        • Lau HuiJew
      • Acts >
        • Portraiture
        • A Slice of Space Time
        • Box of Installation of Lights
        • Radio Misreading
        • Grid of Destinies
        • Shelter
        • Anatomy of Pain
        • Tensigrity of Ego
        • Of Prisons and Walls
        • Forest of Nails
        • Curtain of Fears
        • Dissolution of the Ego
        • If it's Ain't Broken it's Ain't Worth Mending
        • Flight of Freedom
        • Cross of Complexity and Contradiction
        • interrogation
      • Stage >
        • Soap Box
      • Play
      • Approach
      • Galleria >
        • Martial Gallery
        • Drive Through Gallery
        • Clinique Gallery
        • Cafe Gallery
        • MACC Gallery
        • Haunted Gallery
        • Backpacker Hotel
        • Audio Bookshop Gallery
        • Funeral Parlour
        • Extreme Game Gallery
        • Play Ground
        • Wedding Gallery
        • Meditation Gallery
        • Water Tower
        • Photography Studio
        • Chapel Gallery
    • External Critique >
      • Discourse in Sem 06
      • Discourse in Sem 05 >
        • The Site - KB
        • The Rectilinear
        • The Paired Kidneys
        • The Boat
        • The Decepticon
        • The Curvature
      • EnviroDesign MasterClass 2015
    • Philosophy
    • Codes Regulations & Standards >
      • Building Codes
      • Fire Codes
      • QAQC & Building Inspection
      • Critics
  • Photo Essays
    • Shanghai
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  • Contact