Abstract This article explores the Law Commission’s proposed reforms to section 67 of the English Arbitration Act 1996 and, in particular, the missed opportunity to establish a threshold test for challenges to the substantive jurisdiction of an arbitral tribunal. The current reforms are chiefly concerned with the manner through which the English Courts are to conduct a section 67 challenge, rather than the principles to be applied. Through a comparative assessment of the approach in other jurisdictions, we propose that a two-factor test be introduced that requires any challenge of substantive jurisdiction to demonstrate a breach that (i) is more than de minimis and (ii) results in material prejudice. Such a test would help to dissuade frivolous challenges, bolster England as a pro-arbitration destination, and bring England further into line with other, well-respected jurisdictions that impose similar tests.
Goh et al. (2024) studied this question.