Separability of arbitration clause and competence of arbitral tribunal to rule on its own jurisdiction
21.—(1) The arbitral tribunal may rule on its own jurisdiction, including a plea that it has no jurisdiction and any objections to the existence or validity of the arbitration agreement, at any stage of the arbitral proceedings.[12/2012]
(2) For the purpose of subsection (1), an arbitration clause which forms part of a contract is to be treated as an agreement independent of the other terms of the contract.
(3) A decision by the arbitral tribunal that the contract is void does not entail ipso jure (as a matter of law) the invalidity of the arbitration clause.
(4) A plea that the arbitral tribunal does not have jurisdiction must be raised not later than the submission of the statement of defence.
(5) A party is not precluded from raising the plea that the arbitral tribunal does not have jurisdiction by the fact that the party has appointed, or participated in the appointment of, an arbitrator.
(6) A plea that the arbitral tribunal is exceeding the scope of its authority must be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.[12/2012]
(7) Despite any delay in raising a plea mentioned in subsection (4) or (6), the arbitral tribunal may admit the plea if it considers the delay to be justified in the circumstances.
(8) The arbitral tribunal may rule on a plea mentioned in this section either as a preliminary question or in an award on the merits.
(9) If the arbitral tribunal rules —(a)
on a plea as a preliminary question that it has jurisdiction; or
(b)
on a plea at any stage of the arbitral proceedings that it has no jurisdiction,
any party may, within 30 days after having received notice of that ruling, apply to the Court to decide the matter.
[12/2012]
Appeal on ruling of jurisdiction
21A.—(1) An appeal from the decision of the Court made under section 21 lies to the appellate court only with the permission of the appellate court.[40/2019]
[Act 25 of 2021 wef 01/04/2022]
(2) There is no appeal against a refusal for grant of permission of the appellate court.[12/2012; 40/2019]
[Act 25 of 2021 wef 01/04/2022]
(3) Where the Court, or the appellate court on appeal, decides that the arbitral tribunal has jurisdiction —(a)
the arbitral tribunal must continue the arbitral proceedings and make an award; and
(b)
where any arbitrator is unable or unwilling to continue the arbitral proceedings, the mandate of that arbitrator terminates and a substitute arbitrator must be appointed in accordance with section 18.[12/2012; 40/2019]
(4) In making a ruling or decision under this section or section 21 that the arbitral tribunal has no jurisdiction, the arbitral tribunal, the Court or the appellate court (as the case may be) may make an award or order of costs of the proceedings, including the arbitral proceedings (as the case may be), against any party.[12/2012; 40/2019]
(5) Where an award of costs is made by the arbitral tribunal under subsection (4), section 39(1) applies with the necessary modifications.[12/2012]
(6) Where an application is made pursuant to section 21 ―(a)
such application does not operate as a stay of the arbitral proceedings or of enforcement of any award or order made in the arbitral proceedings unless the Court orders otherwise; and[Act 25 of 2021 wef 01/04/2022]
(b)
no intermediate act or proceeding is invalidated except so far as the Court may direct.[12/2012; 40/2019]
(7) Where there is an appeal from the decision of the Court pursuant to subsection (1) —(a)
such appeal does not operate as a stay of the arbitral proceedings or of enforcement of any award or order made in the arbitral proceedings unless the Court or the appellate court orders otherwise; and[Act 25 of 2021 wef 01/04/2022]
(b)
no intermediate act or proceeding is invalidated except so far as the appellate court may direct.[12/2012; 40/2019]
