It is not unusual for arbitration agreements to contain pre-arbitration procedural requirements, such as negotiation or mediation, which the parties must attempt before proceeding to arbitration. These are commonly known as “tiered” or “escalation” arbitration agreements – you have to escalate the dispute through each tier before you can go to arbitration.

Disputes may arise as to whether these pre-arbitration procedural requirements have been fulfilled. In C v D [2022] HKCA 729, the Hong Kong Court of Appeal held that, unless the arbitration agreement expressly said otherwise, it was for the arbitral tribunal (and not the court) to decide whether such pre-arbitration procedural requirements had been fulfilled. In that case, D brought arbitration proceedings against C. C disputed the arbitral tribunal’s jurisdiction on the basis that certain prearbitration procedural requirements had not been fulfilled. The tribunal considered, but rejected, C’s objection to jurisdiction, and went on to issue a partial award on liability in favour of D. C then applied to the Hong Kong court to set aside that partial award under Article 34 of the UNCITRAL Model Law. The court refused to do so.

The Court of Appeal noted (at paragraphs 61-63) that the parties had agreed to submit their dispute to arbitration. There was no reason to confine the scope of arbitrable disputes to substantive disputes arising out of or in relation to the agreement between them – in other words, arbitrable disputes would include disputes as to whether prearbitration procedural requirements had been fulfilled, unless expressly excluded by the parties. As these had not been expressly excluded, it was within the arbitral tribunal’s jurisdiction to decide whether the pre-arbitration procedural requirements had been fulfilled.

This decision is significant as it is from an appellate level court in a Model Law jurisdiction.

Eugene Kwok of Prince’s Chambers is an advocate in international commercial arbitrations and also accepts appointments to sit as an arbitrator.  He is a Member of the Chartered Institute of Arbitrators.