A Matter of Characterisation Distinguishing Issues of Arbitral Jurisdiction and Admissibility of Claims

Abstract

It is axiomatic that arbitration is a matter of contract and, therefore, the legitimacy of arbitration depends on the fundamental premise that parties are not required to arbitrate without their consent. Arbitrators enjoy dispute resolution authority only when the parties have validly agreed to submit their disputes to arbitration.
Disputes often arise regarding the existence, validity, or enforceability of an alleged agreement to arbitrate. Those disputes impact on and imperil the arbitrators’ jurisdiction. But some disputes that at first glance appear to involve a jurisdictional challenge might, in fact, relate to the admissibility of the substantive claims. Consider, for example, the scenario presented by escalation clauses. Escalation clauses are contractual provisions setting forth more than one dispute resolution method to operate in sequential order. They require compliance with the first agreed method (e.g., mediation) before initiating the next one (e.g., arbitration). Disputes that a party has failed to comply with one of those contractual pre-arbitration requirements present a question of characterisation. They could be characterised as ‘jurisdictional’, ‘admissibility’, or ‘procedural’ issues.