A v B

A single request for LCIA arbitration cannot validly commence separate arbitrations under separate arbitration agreements where the LCIA Rules and the request indicate that only one arbitration was intended. The statutory and contractual time limit for a jurisdiction objection must be construed consistently with the mandatory scheme of the Arbitration Act 1996. The words “as soon as possible” do not, without clearer language, impose a sanction stricter than requiring the objection by the time for the Statement of Defence. A jurisdiction objection raised by that stage is therefore not lost merely because it could have been raised earlier.

B commenced one LCIA arbitration against A by a single Request, claiming sums under two separate crude oil sale contracts, each containing an LCIA arbitration clause. A responded, reserving its jurisdictional position, and later challenged the Request as invalid because it referred separate disputes and arbitration agreements to a single arbitration.

The arbitral tribunal dismissed the challenge as out of time. A applied to the High Court under section 67 of the Arbitration Act 1996, requiring a complete rehearing. The issues were whether the Request validly commenced the arbitration and whether A had lost its right to object by failing to raise the point before service of its Response.

1. Validity of the Request. The LCIA Rules treat a written request as commencing one arbitration, with one registration fee, one tribunal and procedures applicable to that arbitration. The Rules also provide for consolidation only with the parties’ agreement. A single request could not therefore be treated as commencing two arbitrations without producing an impermissible consolidation. The Request referred throughout to one arbitration, one arbitration agreement, one seat, one language and one fee. It was an ineffective attempt to refer separate disputes to one arbitration and was invalid.

2. The court adopted the broad and flexible approach to section 14 explained in The Biz [2011] 1 Lloyd’s Rep 688, concentrating on substance and the understanding of a reasonable recipient. That approach did not assist B because, in the context of the LCIA Rules, a reasonable recipient would understand this Request as commencing one arbitration only. The case was materially different because no arbitral rules applied in The Biz.

3. Time for jurisdiction objections. Sections 31 and 73 of the Arbitration Act 1996 are mandatory. Section 31(1) requires an objection to be made no later than the time when the party takes its first step contesting the merits. Where formal pleadings are required, that means no later than the Statement of Defence. Section 31(1) deliberately differs from section 31(2), which requires objections arising during the proceedings to be made as soon as possible.

4. Article 23.3 of the LCIA Rules closely follows section 31. Read in that statutory context, “as soon as possible” does not introduce a substantially stricter regime or cause loss of a fundamental jurisdiction objection before the Statement of Defence. The reasoning in AIG Europe (Ireland) Ltd v Faraday Capital Ltd [2006] 2 CLC 770 supported requiring clearer words before imposing a draconian sanction. A’s objection was raised by the time of its Statement of Defence and was not lost. The claim under section 67 succeeded, and the Tribunal had no jurisdiction to make the Award.

The judgment concerns a section 67 challenge to a partial arbitral award on jurisdiction. No appellate history is stated in the judgment.