Multi-tiered arbitration clauses are commonly found in sophisticated commercial contracts. Most require a party to engage in alternative dispute procedures (“ADR”) before referring a claim to arbitration.

The High Court has recently held in Republic of Sierra Leone v SL Mining Ltd 1 that a party’s non-compliance with such clauses will “ordinarily” not affect a tribunal’s “substantive jurisdiction” within the meaning of s.30(1) of the Arbitration Act 1996 (“AA 1996”), which authorises the tribunal to rule on its own substantive jurisdiction, including as to “(a) whether there is a valid arbitration agreement” and “(c) what matters have been submitted to arbitration in accordance with the arbitration agreement”. This is because these prerequisites do not concern whether “a claim could not be brought to arbitration” at all but merely whether a claim has been “prematur[ely]” brought.2 The Court