Scope of the court’s role in reviewing a decision on tribunal jurisdiction

The national court’s role in reviewing a tribunal’s award on jurisdiction is well established. However, the precise type of intervention that the court should undertake is less clear.

Certainly, review of a tribunal’s final award on its substantive jurisdiction is usually done de novo (that is, via hearing the matter afresh) through proceedings to set aside the award. These proceedings are (subject to any appeal rights) final and conclusive between the parties in any subsequent action or arbitration. However, where there is an appeal or review of the tribunal’s preliminary decision by the court, there is more division as between the courts of different states.

Nevertheless, the prevailing approach is for a hearing de novo, but, on the question of whether the arbitration agreement is valid and enforceable, there remains some ambiguity over whether the review is a prima facie one or a full judicial determination.