In the “Newcastle Express”, the Court of Appeal, in apparent disregard of Lord Hoffman’s views in the Fiona Trust, has ruled that an arbitrator had no jurisdiction to rule on whether the condition precedent to the creation of the contract in which the relevant clause was contained. There is Swedish and Swiss Supreme Court authority pointing in the opposite direction too. I was writing about this and the French Cour de Cassation ruling in Kabab-Ji for my regular Alternatives column. So, I thought that I would update the Separability paper on my website: https://adamsamuel.com/wp-content/uploads/2021/04/separabi-4.pdf.
In the meantime, the Court of Appeal in S3D Interactive, Inc v OOvee Ltd [2022] EWCA Civ 1665 unsurprisingly concluded that the recipient of a peremptory order from an arbitrator could not condition the granting of a court order enforcing it on an affirmative ruling that a jurisdictional challenge to the arbitrator failed. I’ve thought up lots of different ways of challenging jurisdiction. However, an attack on the Court’s powers to support arbitration by enforcing an interim order or measure by the arbitrator by way of jurisdictional challenge to the arbitrator is a bit of new one.