Pro-arbitration approaches to non-compliance with multi-tier dispute resolution clauses: trends and paradoxes

The emerging prevalence of multi-tier dispute resolution clauses reflects the contracting parties’ rising preference for hybrid dispute resolution. Non-compliance with pre-arbitration requirements in these clauses can nevertheless have different consequences for the parties. This article examines the court decisions of Australia, Singapore, Hong Kong, the United Kingdom and Switzerland, which addressed the effect of such non-compliance at the time of referral to arbitration, review of arbitral ruling on jurisdiction, and annulment of arbitral award. They reflect intersecting paradoxes with respect to party autonomy in dispute resolution. First, the parties’ conditional consent to arbitrate does not affect the arbitral tribunal’s jurisdiction, and non-compliance with pre-arbitration requirements is presumptively non-jurisdictional and therefore non-reviewable by the courts (‘conditional consent (to arbitrate) paradox’). However, this pro-arbitration approach may risk upholding consent to arbitrate at the expense of disregarding consent to other dispute resolution mechanisms before arbitration (‘consent (to ADR) paradox’). This leads to the third paradox that such pro-arbitration approach may undermine other ADR mechanisms (‘pro-ADR paradox’). By clarifying the emerging trends despite disparities while reconciling these paradoxes, this article provides the theoretical framework for improving consistency and coherency in the judicial determination of the consequences of non-compliance with pre-arbitration requirements.