- Two recent High Court decisions have confirmed that pre-arbitral dispute resolution obligations are not matters of jurisdiction; rather they are matters of admissibility, which are for arbitral tribunals to determine and not the national courts.
Dispute resolution clauses (sometimes referred to as ADR clauses or tiered clauses) are becoming an increasingly common feature of international commercial contracts. In essence, a dispute resolution clause (DR clause) requires parties to exhaust a number of alternative dispute resolution procedures (eg negotiation, mediation etc) before the matter can be referred to arbitration or litigation. Therefore, DR clauses provide the parties with opportunities to explore whether their dispute can be settled before launching expensive and time-consuming court or arbitration proceedings.
An issue that may arise in arbitration is whether a party’s failure to comply with a DR clause may give rise to an issue of admissibility for the arbitral tribunal, or whether it is an issue of jurisdiction for the court under
