South Australian Current Acts South Australian Current Acts16—Competence of arbitral tribunal to rule on its jurisdiction
(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—
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—
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.