Neither Too Little, Nor Too Late: A Delayed Jurisdictional Challenge Finds Success

Introduction

Article 16 of the UNCITRAL Model Law on International Commercial Arbitration (the "Model Law") provides a means for early resolution of disputes over the jurisdiction of an arbitral tribunal. Pursuant to Article 16(3), if a preliminary ruling is made by the tribunal on the issue of jurisdiction, the respondent has 30 days to appeal against the ruling to the supervisory court. This begs the question, if a respondent fails to appeal in time and chooses not to participate in the arbitral proceedings, are they precluded from using a jurisdictional challenge to set aside the final award?

In the May 9, 2019 decision of Rakna Arakshaka Lanka Ltd v. Avant Garde Maritime Services (Pte) Ltd ^{2019] SGCA 33 ("RALL v. AGMS"), the Singapore Court of Appeal provided an answer and held that the preclusive effect of Article 16(3) of the Model Law does not extend to a respondent who does not participate in the arbitral proceedings and has not contributed to any wastage}