Court review of an arbitrator’s preliminary jurisdictional ruling: de novo or appellate review?
Albert Monichino QC
The Supreme Court of Victoria’s Arbitration List judge has confirmed that the appropriate standard of review by a court of an arbitral tribunal’s preliminary ruling on jurisdiction is a de novo review.
Lin Tiger Plastering Pty Ltd v Platinum Construction (Vic) Pty Ltd [2018] VSC 221
There has been a surprising lack of authority in Australia regarding the standard of review to be adopted by a court when reviewing a preliminary ruling on jurisdiction by an arbitral tribunal. Such review is provided for by Article 16(3) of the UNCITRAL Model Law on International Commercial Arbitration (Model Law), given the force of law in Australia by the International Arbitration Act 1974 (Cth), and the equivalent section 16(9) of the new uniform Commercial Arbitration Acts which regulate domestic arbitration in each State and Territory of Australia. The issue has now been considered by Croft J in the context of s 16 of the Commercial Arbitration Act 2011 (Vic) (CAA). Facts A builder entered into two subcontracts with a sub-contractor for the latter to perform plastering and related works on two domestic building projects. Each subcontract contained an arbitration clause. A dispute arose and the builder commenced arbitration proceedings. The sub-contractor objected to the jurisdiction of the arbitrator, contending that by reason of the Domestic Building Contracts Act 1995 (Vic) (DBCA), VCAT[1] had exclusive jurisdiction to hear and determine the dispute, and therefore the dispute was not arbitrable. In a preliminary ruling on jurisdiction, the arbitrator found that he had jurisdiction to hear and determine the dispute. The sub-contractor applied to the Supreme Court for review of the preliminary ruling on jurisdiction under section 16(9) of the CAA, which provides: If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within 30 days after having received notice of that ruling, the Court to decide the matter. Issues Croft J identified two dispositive issues: (a) first, what was the nature of the power of the Court under section 16(9) of the CAA; and (b) secondly, did the subcontractor carry out “domestic building works” under the subcontracts, such that the DBCA was engaged with the consequence that the dispute was not arbitrable? The first question is of greater interest given its more significant precedential value.