(1) The arbitral
tribunal may rule on its own jurisdiction, including any objections with
respect to the existence or validity of the arbitration agreement.
(2) For that purpose,
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 null and void does not of itself entail
the invalidity of the arbitration clause.
Note for this subsection:
The Model Law provides
that such a decision does not “ipso jure” entail 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 such a plea 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.
(7) The arbitral
tribunal may, in the case of a plea referred to in subsection (4) or (6),
admit a later plea if it considers the delay justified.
(8) The arbitral
tribunal may rule on a plea referred to in subsection (4) or (6) either as a
preliminary question or in an award on the merits.
(9) If the arbitral
tribunal rules as a preliminary question that it has jurisdiction, any party
may request, within 30 days after having received notice of that ruling, the
Court to decide the matter.
(10) A decision of the
Court under subsection (9) that is within the limits of the authority of the
Court is final.
(11) While a request
under subsection (9) is pending, the arbitral tribunal may continue the
arbitral proceedings and make an award.
Note for this section:
Section 16 (other than
subsection (10)) is substantially the same as Art 16 of the Model Law.
Subsection (10) makes it clear that, although a decision of the Court is
generally final, review of a decision of the Court that is not made within the
limits of its powers and functions is not precluded.