Who decides whether a tribunal can hear the case

What the tribunal rules on, and who rules on it

Before a tribunal can decide a dispute it has to be able to hear it at all, and the first body to rule on that is the tribunal itself. Article 16 of the UNCITRAL Model Law lets the tribunal rule on its own jurisdiction, including objections to the existence or validity of the arbitration agreement. The secretariat’s Explanatory Note calls this “Kompetenz-Kompetenz”, and adds that the tribunal’s competence is subject to court control.¹

Institutional rules say the same in their own words. The LCIA Rules give the tribunal power to rule upon its own jurisdiction and authority, including any objection to the existence, validity, effectiveness or scope of the arbitration agreement. The DIAC Rules do the same for objections to the agreement to arbitrate. English law breaks the question into three parts, and section 30(1) of the Arbitration Act 1996 lets the tribunal rule on them unless the parties agree otherwise.^3,4,6

• Whether there is a valid arbitration agreement (Arbitration Act 1996, section 30(1)(a))
• Whether the tribunal is properly constituted (section 30(1)(b))
• What matters have been submitted to arbitration in accordance with the arbitration agreement (section 30(1)(c))⁶

Separability keeps the clause standing

A party attacking the contract is not automatically attacking the clause inside it. Under Model Law article 16(1) an arbitration clause in a contract is treated as an agreement independent of the other terms, and a decision that the contract is null and void does not of itself invalidate the clause. The LCIA Rules put it the same way, and the DIAC Rules let the tribunal rule regardless of what is alleged about the underlying contract.^1,3,4

Section 7 of the Arbitration Act 1996 goes further, covering an agreement that never came into existence or has become ineffective, not only an invalid one. Unless the parties agree otherwise, the arbitration agreement is treated as distinct from the agreement it forms part of.⁵

When the objection has to be raised

Each text fixes the deadline differently. The Model Law, the DIAC Rules and the LCIA Rules key it to a named pleading, the statement of defence. The Arbitration Act 1996 keys it to conduct: an objection at the outset must be raised not later than the first step the party takes to contest the merits. Three of the four let the tribunal admit a late objection where the delay is justified.^1,3,4,7

Taking part without objecting

A party that joins in and says nothing can lose the point. Under section 73 of the Arbitration Act 1996, a party who takes part, or continues to take part, without objecting that the tribunal lacks substantive jurisdiction may not raise that objection later. The objection has to be made forthwith or within the time the arbitration agreement, the tribunal or Part I of the Act allows. The way out is narrow: the party must show it could not with reasonable diligence have discovered the grounds.⁸

Section 73(2) adds a second bar. Where the tribunal rules that it has substantive jurisdiction, a party who could have questioned that ruling and does not do so in time may not object later on any ground that was the subject of the ruling. Section 30(2) is the provision that preserves the challenge: such a ruling may be challenged by any available arbitral process of appeal or review or in accordance with Part I.^6,8

The screen before a tribunal exists

An objection often arrives before there is a tribunal to hear it, and the rulebook says what the centre does in the gap. Under DIAC rule 6.2 the Respondent may raise preliminary objections to the agreement to arbitrate, no later than with its Answer. The DIAC Arbitration Court shall then, if so requested, decide that the arbitration proceeds if it is prima facie satisfied that an agreement to arbitrate may exist under the Rules.³

Rule 6.3 leaves the final decision to the tribunal. Even without a specific objection, the tribunal must satisfy itself that the agreement to arbitrate referred to in the Request is valid and that the claims fall within its scope. The screen decides whether the case moves, not whether the tribunal has jurisdiction.³

A jurisdiction objection is not an argument the case makes room for whenever it surfaces. The rulebook sets who hears it first, by when it has to be raised, and what happens to the party that stayed quiet.

When a court is seized first

The same question reaches courts directly, and the Model Law tells the court to stand back. Article 8(1) requires a court before which an action is brought in a matter that is the subject of an arbitration agreement to refer the parties to arbitration, unless it finds that agreement null and void, inoperative or incapable of being performed. Article II(3) of the New York Convention puts the same duty on the court of a Contracting State.^1,2

United States law divides the work differently. Under 9 U.S.C. section 4 the court orders the parties to proceed to arbitration once satisfied that the making of the agreement, or the failure to comply with it, is not in issue, and where either is in issue it proceeds summarily to the trial of that issue.¹²

A preliminary ruling, or part of the final award

Holding the power to rule leaves open when to use it. Model Law article 16(3) gives the tribunal the choice of ruling on the plea as a preliminary question or in an award on the merits. The first route carries a timetable. Any party may ask the court specified in article 6 to decide the matter, within thirty days of notice of a preliminary ruling that the tribunal has jurisdiction. That decision is subject to no appeal, and the tribunal may carry on while the request is pending.¹

The rulebooks set the same choice. The DIAC Rules provide that in general the tribunal shall rule on a jurisdiction objection as a preliminary question but, after consultation with the parties, may instead rule on it in the Final Award. The LCIA Rules allow either an award as to jurisdiction or authority or a later award on the merits, and treat the parties as having agreed not to apply to a state court about the tribunal’s jurisdiction once the tribunal is formed.^3,4

The same question at enforcement

A jurisdiction ruling is not the end of the matter, because the award still has to pass a court on the grounds that apply to any award. Two of them turn on jurisdiction: an arbitration agreement that is not valid, and an award that goes beyond the submission. Both recur at recognition and enforcement under Model Law article 36(1)(a). There the fallback law for the validity of the agreement is that of the country in which the award was made, not that of the court asked to set the award aside.¹

Both also carry a severance proviso, so where the decisions can be separated article 34(2)(a)(iii) sets aside only the excess part and article 36(1)(a)(iii) lets the part properly submitted be recognised and enforced. In the United States the scope question returns through 9 U.S.C. section 10(a)(4), under which a court may vacate an award where the arbitrators exceeded their powers.^1,13

A narrower second look under the 1996 Act

A seat can decide how much of the jurisdiction argument a court will hear over again. The Arbitration Act 1996 applies to England and Wales and Northern Ireland. Its section 67, as amended, allows a challenge to an award as to substantive jurisdiction, and the substituted section 67(1)(b) adds a challenge to an award on the merits on the ground that the tribunal lacked substantive jurisdiction. Section 67(3A) makes remission the preferred remedy: the court must not set the award aside unless satisfied that it would be inappropriate to remit.⁹

Sections 67(3B) and 67(3C) let rules of court provide for the case where the application relates to an objection the tribunal has already ruled on and is made by a party that took part in the proceedings. Subject to the court ruling otherwise in the interests of justice, three limits apply.⁹

• A ground not raised before the tribunal must not be raised before the court, unless the applicant did not know of it and could not with reasonable diligence have discovered it (section 67(3C)(a))
• Evidence not put before the tribunal must not be considered, unless the applicant could not with reasonable diligence have put it before the tribunal (section 67(3C)(b))
• Evidence the tribunal heard must not be re-heard (section 67(3C)(c))⁹

The Arbitration Act 2025 made those changes: its section 10 substituted section 67(1)(b) and section 67(3) and (3A), and its section 11 inserted sections 67(3B) to (3D). All came into force on 1 August 2025.^9,10,11

A gate set by rule, not case by case

Read together, these texts turn a contested threshold into an administered sequence. A centre can screen the case on a prima facie standard while no tribunal exists. The tribunal then rules on its own jurisdiction under the adopted rulebook, against a deadline keyed to a named pleading or to the first step on the merits, with a waiver rule for the party that stayed silent. A court at the end asks only whether the agreement covered what was decided. What answers that is the record of which rule applied and who decided, which is the point of administering a case on your own rulebook.^1,3,7,8