SEAT MATTERS: CHALLENGING A TRIBUNAL’S RULING ON JURISDICTION

1. Kompetenz-Kompetenz is the universally accepted principle that empowers arbitration tribunals to decide on their own jurisdiction. However, recent decisions in the Indian Supreme Court and the Singapore High Court provide timely reminders on whether and when such jurisdictional rulings can be referred to the local supervisory court. Parties must remember the inconsistency across jurisdictions in timings its challenge to the Tribunal’s ruling on jurisdiction.

India

2. Section 16 of the Indian Arbitration and Conciliation Act 1996 (the “ACA”) codifies the Kompetenz-Kompetenz. Section 16(5) provides that if a tribunal dismised a jurisdictional challenge then it shall continue with the arbitral proceedings and make an award. Relatedly, section 16(6) provides that a party aggrieved by such a ruling “may make an application for setting aside such an arbitral award in accordance with section 34” of the ACA.
3. In MCM Worldwide Private Limited v Construction Industry Development Council 2026 INSC 425 (“MCM”), the respondent argued that the tribunal’s order rejecting its jurisdictional challenge under section 16 of the ACA constituted an “award” which was susceptible to a setting aside under section 34 of the ACA. In support of its position, the respondent relied on a previous decision of the Supreme Court of India in Indian Farmers Fertilizer Cooperative Limited vs. Bhadra Products (2018) 2 SCC 534 (“Indian Farmers”) which held that an interim award which decided the issue of limitation could be set aside under section 34 of the ACA.
4. However, the Supreme Court of India in MCM distinguished its decisions in Indian Farmers on the basis that Indian Farmers did not concern a challenge to the tribunal’s jurisdiction, but rather as a distinct preliminary issue. Notably, the court at [11] quoted the observations it made in Indian Farmers where it appeared to suggest that legislative amendments ought to be introduced to defer challenges to interim awards until after the final award is delivered on the basis that “[p]iecemeal challenges likely piecemeal awards leads to unnecessary delay and additional expense”.
5. Therefore, the position in India today is that if a tribunal dismisses a jurisdictional challenge filed by a party, that party can only challenge the tribunal’s decision after the final award is rendered.

Singapore

6. The position is diametrically opposite in Singapore. For Singapore-seated arbitrations, appeals on a tribunal’s ruling on jurisdictional challenges are governed by either section 21(9) of the Arbitration Act 2001 (“AA”), dealing with domestic arbitrations, or section 10(3) of the International Arbitration Act 1994 (“IAA”), depending on whether the arbitration is regarded as an “international arbitration”.
7. Both section 21(9) of the AA and section 10(3) of the IAA provide that if a tribunal rules (a) on a jurisdictional challenge as a preliminary question that it has jurisdiction; or (b) on a jurisdictional challenge at any stage of the arbitral proceedings that it has no jurisdiction, any party may apply to the General Division of the Singapore High Court to review that decision within 30 days of receiving notice of the tribunal’s ruling.
8. The importance of this 30-day period was underscored in the recent decision of DSQ v DSR [2026] SGHC 67 (“DSQ”). The Singapore High Court held that if a party fails to challenge the preliminary ruling on jurisdiction within the prescribed 30-day period, that party would generally be precluded from raising the same jurisdictional challenge to set aside the final award.
9. However, an exception is available where the aggrieved party did not participate in the arbitral proceedings following the tribunal’s ruling on jurisdiction. The rationale for this exception is grounded in policy – the law does not compel a respondent against whom arbitral proceedings have commenced to defend its position if it believes that the tribunal has no jurisdiction. That said, this is a “risky course of action to take” as the final award would be enforceable against it should it’s position on jurisdiction ultimately turn out to be wrong (see Rakna Arkshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd [2019] 2 SLR 131 at [73]).

United Kingdom (England & Wales)

10. We consider the example of another prevalent arbitration seat, the UK. The position in UK is similar to that in Singapore and is governed by the Arbitration Act 1996 (“EAA”).
11. Section 31 of the EAA prescribes when a jurisdictional challenge must be made to the tribunal and expressly permits the tribunal to either rule on the issue in an award as to jurisdiction, or alternatively, deal with it as part of its final award. Alternatively, a respondent in an arbitration may invoke section 32 of the EAA to refer the jurisdictional issue directly to the Court, provided that the respondent has the written agreement of all other parties; or the permission of the tribunal.
12. Should the tribunal rule on a jurisdictional challenge in a preliminary award, either party may challenge that award in the England & Wales High Court under section 67(1)(a) of the EAA. Such a challenge must be filed within 28 days of the tribunal’s ruling (see section 70 (3) of the EAA). However, section 72 of the EAA provides that this 28-day requirement does not apply to a party which “takes no part in the proceedings”.
13. It is also worth noting that recent amendments to the EAA introduced in 2025 restrict the Court’s ability to conduct a de novo review of a tribunal’s decision on jurisdiction, confining the grounds and evidence to those that had been put before the tribunal.

Conclusion

14. While India, Singapore and England each subscribe to the foundational principle that arbitral tribunals possess the competence to rule on their own jurisdiction in the first instance, parties to arbitrations need to be mindful that there are differing approaches as to when the courts, at the seat having supervisory jurisdiction, can be invoked.
15. Please reach out to our team if you require advice or information regarding the nuances of international arbitration.

Authors: Akshay Kishore, Director, Duane Morris & Selvam LLP and Mark Ng, Associate Director, Selvam LLC

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