Broda Agro Trade (Cyprus) Ltd v Alfred C. Toepfer International GmbH [2009] EWHC 3318 (Comm), [2009] All ER (D) 176 (Dec)
A person might inform an arbitration tribunal of his view that the tribunal lacked jurisdiction without being held to have taken part in the arbitration proceedings.
However, if he made submissions to the tribunal for it to take into account when exercising its jurisdiction to rule on its own substantive jurisdiction, he risked being held to have taken part in the arbitration proceedings. Section 72 of the Arbitration Act 1996 stated that the condition to be satisfied by a person wishing to avail himself of that section was that he “takes no part in the proceedings”.
It did not state in terms that the condition to be satisfied was that he “takes no part in the proceedings in order to challenge the jurisdiction of the arbitration”. There was no reason to imply any such condition. Section 72 provided that a person who took no part in the arbitration proceedings might question the jurisdiction of the tribunal by seeking a declaration or injunction.
