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Arbitrating Premature Claims: An Issue of Admissibility | King & Spalding

The question of whether a party’s failure to comply with a mandatory step in a multi-tiered dispute resolution clause is an issue of “admissibility” or “jurisdiction” was a hot topic in. ....

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Compliance with preconditions to arbitration a matter of admissibility, not jurisdiction

In its decision in
Sierra Leone v SL Mining Ltd,(1) the High Court confirmed that alleged non-compliance with the provisions of a multi-tiered dispute resolution clause (in particular, the submission of claims to arbitration prior to the end of a prescribed period of negotiation) is exclusively a matter of admissibility for the arbitral tribunal and cannot lead to a successful jurisdictional challenge under Section 67 of the Arbitration Act 1996. This decision confirms the scope of a London-seated tribunal s substantive jurisdiction under Section 30(1) of the Arbitration Act. It also confirms that initiation of arbitration proceedings, in apparent breach of a mandatory multi-tiered dispute resolution clause, may be valid where settlement of the dispute is deemed impossible within the remaining prescribed period. ....

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Commercial Court: Compliance With Arbitral Preconditions a Question of Admissibility | Latham & Watkins LLP

The decision clarifies the circumstances under which an arbitral award might be challenged.
A recent decision by the English Commercial Court indicates that failure to comply with a precondition to arbitration (such as an obligation to negotiate) calls into question the admissibility of a claim, rather than calling into question the jurisdiction of the arbitrators to hear such a claim. As parties to arbitration can only challenge an award through the English courts under s. 67 of the Arbitration Act 1996 (the Act) for lack of jurisdiction, and not in relation to the admissibility of a claim, the decision suggests that s. 67 may not be available to bring challenges concerned with a failure to comply with such preconditions to arbitration. ....

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