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Arbitration Law

Chapter 5



Jurisdictional questions

5.1 An arbitration agreement, as distinguished from a submission agreement, is a contractual clause evidencing agreement to refer future disputes to arbitration.1 Disputes may be referred collectively or serially as they arise.2 Arbitration clauses are normally found in the context of contractual arrangements, and either form a part of the wider contract or are drafted as wholly independent agreements. A variety of issues affect the applicability of an arbitration clause, including its construction and scope, its form and incorporation from other documents. Arbitrators are, with one exception, capable of being given the power to determine conclusively the legal consequences of all of these matters. The limitation relates to the very jurisdiction of the arbitrators to hear the dispute, a question which most commonly arises with regard to the validity of the underlying contract but which may also arise in, for example, construing the validity and scope of the arbitration clause or in determining whether there is a dispute between the parties, or whether the arbitral tribunal is properly constituted. The position here is that the parties may by agreement confer upon the arbitrators the power to determine their own jurisdiction but that their decision is open to judicial challenge at any stage. These principles are discussed fully in Chapter 9, and it is sufficient to say here that the autonomy of the agreement to arbitrate, which is the foundation of the principle that arbitrators may consider their own jurisdiction, applies whether the arbitration clause is or is not physically a part of the main agreement.

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