Enforcing the agreement to arbitrate

The availability of declaratory relief

The Arbitration Act 1996 contains detailed and complex provisions whereby the jurisdiction of the arbitrators can be determined initially by the arbitrators themselves subject to the right of an objecting party to seek relief from the court during the arbitration or following the making of an award. Prior to the passing of the 1996 Act, the courts had the right on application to grant a declaration as to the binding effect of an arbitration agreement or the validity of a reference to arbitration, and although there is no mention of this power in the 1996 Act, it has generally been assumed that declaratory relief remains freely available to a person who has denied the existence of a valid reference and who has refused to participate in the arbitration proceedings. The validity of this assumption has been tested before HHJ Seymour QC in J T Mackley & Co Ltd v Gosport Marina Ltd [2002] EWHC 1315 (TCC), [2002] Building Law Reports 367. As will be seen the power remains, but is to be exercised in exceptional circumstances only.