C v D: Compliance With Pre-Arbitration Conditions — A Question Of Admissibility Rather Than Jurisdiction

In the recent decision of C v D,¹ the Hong Kong Court of Final Appeal ("HKCFA") unanimously found that when an arbitral tribunal concludes that pre-arbitration conditions in an arbitration agreement have been met, this is not reviewable by a court in a proceeding to set aside the award.

In reaching this conclusion, the majority adopted a conceptual distinction between subject-matter jurisdiction and procedural "admissibility" of a matter to arbitration.² The majority found effectively that non-compliance with pre-arbitration conditions does not negate an arbitral tribunal's jurisdiction over a dispute; rather it merely renders the dispute not yet admissible to arbitration.

Because the question of compliance does not affect the tribunal's jurisdiction, it is not jurisdictional in nature, and cannot be reviewed by a court (unless otherwise specified by the parties), even if the question was raised as an objection to the tribunal's jurisdiction.