Nick Marsh & Alex Bromwich on s 72 of the Arbitration Act 1996: three 2025 judgments show that parties should act promptly & plead consistently
- Section 72 of the Arbitration Act 1996 allows a non-participating party who denies being bound by an arbitration agreement to challenge the tribunal’s jurisdiction.
- The courts have apply s 72 generously to protect party autonomy, but inconsistent jurisdictional objections can forfeit s 72 protection.
- Three 2025 cases stress that jurisdictional challenges must be raised promptly and clearly.
Section 72 of the UK Arbitration Act 1996 (AA 1996) concerns the rights of parties who are alleged to be parties to an agreement to arbitrate but who have taken no part in arbitration proceedings to challenge awards. Its first limb (s 72(1)) empowers such persons to apply to the court for a declaration, injunction or other appropriate relief in respect of the following questions:
i. Is there a valid arbitration agreement?
ii. Has the tribunal been properly constituted? and
iii. Have the matters referred to arbitration
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