Michael Wilson & Partners Ltd v Emmott

An arbitral tribunal’s decision is an award as to substantive jurisdiction according to its substance, not its label. The court asks how a reasonable recipient would understand the decision, having regard to its context, contents, description and language. A procedural order granting permission to amend a pleading may refer to jurisdiction without finally determining it. An application under section 67 of the Arbitration Act 1996 is therefore premature where no jurisdictional award has been issued. The court should ordinarily avoid expressing a view on the tribunal’s substantive jurisdiction unless that issue is necessary to determine the application.

The claimant applied under section 67 of the Arbitration Act 1996 to challenge an arbitral tribunal’s decision concerning the scope of an amended counterclaim. The tribunal had granted permission to amend and expressed the view that the dispute fell within the arbitration clause. It had also made further procedural orders and a continuation order under section 67(2).

The defendant argued that the decision was not an award as to the tribunal’s substantive jurisdiction. The issues were whether that argument remained open, whether the decision was an award, and, if so, whether the tribunal had jurisdiction.

1. The defendant remained entitled to argue that the tribunal’s decision was not an award. Applying for a continuation order under section 67(2) did not amount to an express or implied abandonment of that argument. The circumstances showed only that the defendant understood that the claimant had made an application which it maintained was properly brought.

2. Whether a decision is an award is a question of substance rather than form. The relevant question, identified in Ranko Group v Antarctic Maritime SA, was how the reasonable recipient would have understood the decision.

3. The reasonable recipient would regard the Sixth Procedural Order as answering procedural questions about amendment and disclosure, rather than finally determining jurisdiction. The decision was described as a procedural order, dealt with an application for permission to amend, expressed only the tribunal’s view that the dispute fell within the arbitration clause, and did not use the formal language ordinarily associated with a final and binding jurisdictional award.

4. The tribunal had therefore not issued an award as to its substantive jurisdiction. The section 67 application was dismissed. It was unnecessary and inappropriate to decide whether the tribunal in fact had jurisdiction. That issue was initially for the tribunal, which had not yet determined it by award; the court should be wary of expressing an unnecessary view on it.