Even if the claim for arbitration was premature, it should affect the admissibility of the
parties and not the jurisdiction
Difference between admissibility and jurisdiction;
Jurisdictional issues focus on the arbitrators and their competence to hear the issues whereas
admissibility focuses on the claim and whether it can be heard by the arbitrators.1
Jurisdictional issues involve permanent defects such as lack of consent or a dispute falling
outside the scope of an arbitration agreement, in contrary admissibility issues relate to a claim
not yet ready for adjudication due to an impediment not connected to the merits of the claim.2
How does pre –arbitral agreements concern admissibility rather than jurisdiction?
From day one, a party concluding an arbitration agreement in a bilateral treaty is aware of the
possibility of ending up in arbitration proceedings. Thus, the failure of the parties to fulfill
these requirements does not affect parties consent 3 rather raises questions about their
compliance with the agreed sequencing.4 For these reasons, and in view of the purpose of pre-
arbitration requirements, it is reasonable to establish as a default rule of interpretation, that they are
mere procedural requirement related to the admissibility of the claim. Therefore, in principle, unless
expressly agreed by the parties, pre-arbitration requirements should have no impact on the jurisdiction
of an arbitral tribunal.5 Hence, the parties not attempting to amicably settle the dispute in accordance
with conditions set out in a multi- tier arbitral clause
Should not affect the tribunals jurisdiction but rather its admissibility. 6
Other reasons for pre -mature claims not affecting the jurisdiction of arbitral tribunals;
1 Gerald G. Fitzmaurice, The Law and Procedure of the international court of justice 438- 439(1986)
2 Michael Waibel, Investment Arbitration: Jurisdiction And Admissibility, University of Cambridge Faculty of Law Legal Studies, Research Paper Series, Paper No.
9/2014, 65 (2014).
3 BG Group v. The Argentine Republic, 134 S. Ct. 1198 (2014), Motion for leave to file Amicus Curiae brief, Professors and Practitioners of Arbitration Law (in support
of writ of Certiorari), 15
4 Rudolf Dolzer & Christoph Schreuer, Principles of International Investment Law 262 (2nd ed. 2012).
5 Gary B. Born, International Commercial Arbitration 1051 et. seq., 1190, 3218 (2nd ed., 2014); Jan Paulsson, Jurisdiction and Admissibility, in Global Reflections on
International Law, Commerce and Dispute Resolution Liber Amicorum in honour of Robert Briner 609 (Gerald Aksen et al. eds., 2005).
6
ALEXANDER JOLLIES: „Consequences of Multi-tier Arbitration Clauses: Issues of
Enforcement“, Reprinted from (2006) 72 Arbitration, p. 335.
Other than the admissibility claims, several authors have also argued that non-adherence to pre-
arbitration mechanism should not affect the jurisdiction of arbitral tribunals for the sole reason that it
opens doors for the parties to misuse the stated clause. For example, the respondent may not adhere to
the pre-arbitration clauses and then when the matter is before an arbitral tribunal, they may argue that
since the pre-arbitration clause has not been adhered to, the tribunal has no jurisdiction. 7
Even then if the respondents claim that pre-arbitral mechanism should affect the tribunals jurisdiction;
Article 13 of the UNCITRAL Model Law seems to be based on the same conclusion:
“Where the parties have agreed to conciliate and have expressly undertaken not to initiate
during a specific period of time or until a specified event has occurred arbitral or judicial
proceedings with respect to an existing or future dispute, such an undertaking shall be given
effect by the arbitral tribunal or the court until the terms of the undertaking have been
complied with, except to the extent necessary for the party, in its opinion, to preserve the
right. Initiation of such proceedings is not of itself to be regarded as a waiver of the
agreement to conciliate or as a termination of the conciliation proceedings.” 8
“Such an undertaking shall be given effect by the arbitral tribunal” suggests that the tribunal
has jurisdiction and should make use of its authority to enforce the pre-arbitral steps. Also, if
one were to consider the pre-arbitral steps as conditions precedent to the arbitrators’
jurisdiction (as opposed to conditions precedent to the admissibility of the request for
arbitration), this could create difficulties in connection with the potential necessity of
preliminary measures prior to completion of the pre-arbitral steps and could have an adverse
effect on the question of lis pendens and the interruption of limitation periods. In any event,
the issue of whether a multi-tiered dispute resolution clause raises a valid condition precedent
to the tribunal’s authority to decide on the matter is a question of jurisdiction, which under
the principle of Kompetenz-Kompetenz is to be decided by the tribunal itself. 9
7
For instance, see Álvaro López De Argumedo Piñeiro: “Multi-Step Dispute
Resolution Clauses”, in Miguel Ángel Fernández-Ballesteros and David Arias
(eds),Liber Amicorum Bernardo Cremades, (© Wolters Kluwer España; La Ley 2010)
p. 733. Furthermore see Mauricio Gomm Ferreira Dos Santos, The Role of Mediation
in Arbitration: The Use and the Challenges of Multi-tiered Clauses in International
Agreements, Revista Brasileira de Arbitragem, (© © Comitê Brasileiro de Arbitragem
(CBAr) & IOB; © Comitê Brasileiro de Arbitragem (CBAr) & IOB 2013, Volume X
Issue 38) pp. 11-12. Also see, Gary B. Born: International Commercial Arbitration,
(3d. ed. 2009), p. 241 and Alexander Jollies: „Consequences of Multi-tier Arbitration
Clauses: Issues of Enforcement“, Reprinted from (2006) 72 Arbitration, p. 33
8
article 13, uncitral
9
Consequences of Multi-tier Arbitration Clauses: Issues of Enforcement
By ALEXANDER JOLLES
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