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Home > Country profiles > Canada > Articles > Article detail

Neither Too Little, Nor Too Late: A Delayed Jurisdictional Challenge Finds Success

Sunday, 19th August 2019


Article 16 of the UNCITRAL Model Law on International Commercial Arbitration (the "Model Law") provides a means for early resolution of disputes over the jurisdiction of an arbitral tribunal. Pursuant to Article 16(3), if a preliminary ruling is made by the tribunal on the issue of jurisdiction, the respondent has 30 days to appeal against the ruling to the supervisory court. This begs the question, if a respondent fails to appeal in time and chooses not to participate in the arbitral proceedings, are they precluded from using a jurisdictional challenge to set aside the final award?

In the May 9, 2019 decision of Rakna Arakshaka Lanka Ltd v. Avant Garde Maritime Services (Pte) Ltd 2019] SGCA 33 ("RALL v. AGMS"), the Singapore Court of Appeal provided an answer and held that the preclusive effect of Article 16(3) of the Model Law does not extend to a respondent who does not participate in the arbitral proceedings and has not contributed to any wastage of costs or the incurring of any additional costs that could have been prevented by a timely application under Article 16(3). Thus, a non-participating party may still object to the jurisdiction of an arbitral tribunal at the "setting aside" stage. Moreover, such a party does not owe the other party any duty to participate especially when such participation may be inconsistent with their position that they are not subject to the jurisdiction of the arbitral tribunal."

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Source: McCarthy Tétrault LLP
Language: English
Contact: The International Arbitration Blog, Raynell Hodge and Heather Maki

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