Arbitration rewards procedural vigilance. A party that believes a tribunal lacks jurisdiction usually cannot stay silent, contest the merits, and only later invoke the objection if the case turns unfavourable.
Typical jurisdictional objections that may be raised in arbitration include:
- No valid arbitration agreement;
- A party is not bound by the arbitration agreement;
- The tribunal was not properly constituted;
- The dispute falls outside the scope of the arbitration clause;
- The claim is against the wrong party;
- The subject matter is not arbitrable;
- Required preconditions to arbitration were not satisfied;
- In treaty cases, there is no consent or no jurisdiction under the treaty / ICSID Convention.
Most arbitration laws and rules require the objection to be raised early, often no later than the statement of defence. But the effect of delay is not uniform. Some systems deem the objection waived; others allow a late plea for justified reasons; and ICSID tribunals in particular have sometimes considered jurisdiction despite a party’s lateness.
This note explores the timing constraints imposed by various arbitral systems, examining first commercial arbitration and then investor-State arbitration.
Timing of Jurisdictional Objections in Commercial Arbitration
In commercial arbitration, a common structure has emerged among institutional rules regarding the timing of jurisdictional objections, typically featuring all or most of the following five provisions:
- A plea that the arbitral tribunal does not have jurisdiction shall be raised no later than the submission of the statement of defence;
- A plea of this nature with respect to a counterclaim must be raised no later than the defence to counterclaim;
- A party shall not be precluded from raising such a plea merely because it has appointed, or participated in the appointment of an arbitrator;
- A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings; and
- The arbitral tribunal may admit a later plea if it considers the delay justified.
This is the structure adopted by the UNCITRAL Arbitration Rules,[1] and the arbitration rules of the Hong Kong International Arbitration Centre (the “HKIAC”),[2] the Singapore International Arbitration Centre (the “SIAC”),[3] and the London Court of International Arbitration (the “LCIA”),[4] albeit with slight variations (see footnotes for the wording from each particular set of rules). The International Chamber of Commerce (“ICC”) Rules, on the other hand, do not feature a clear jurisdictional objection waiver provision.
The same approach also appears in legislation. It was incorporated into the UNCITRAL Model Law,[5] and is therefore reflected in numerous national arbitration laws across the world, for example, in Section 16(2)-(4) of the Indian Arbitration and Conciliation Act 1996, Article 20(1)-(2) of Federal Law No. 6 of 2018 on Arbitration of the United Arab Emirates, and Article 16(2)-(3) of the Costa Rican Law for International Arbitration. The United Kingdom’s 1996 Arbitration Act likewise features such a provision at Section 31.[6]
The baseline message is therefore clear: jurisdictional objections must be raised promptly. Nevertheless, the consequences of delay vary significantly across regimes and, in practice, are often less severe than the black-letter rules might suggest.
Commercial Cases
A useful example of the application of these provisions in the SIAC Rules and the UNCITRAL Model Law is Hunan Xiangzhong Mining Group Ltd v Oilive Pte Ltd.
In this case, despite having received communications and documents regarding the commencement and progress of the arbitration, the respondent chose not to participate in the arbitration until nearly two months after it was due to submit its statement of defence and five months after the appointment of the arbitrator, at which time it submitted its jurisdictional objection on the basis that the arbitrator was allegedly not appointed in accordance with the parties’ arbitration agreement.[7]
The arbitrator found that first, he had jurisdiction,[8] and second, under Rule 31.2 (then 28.3) of the SIAC Arbitration Rules, the objection was untimely.[9]
The arbitrator rejected the respondent’s argument that, because it had not filed a statement of defence, its objection could not be untimely according to the text of the SIAC Rules. The arbitrator found that the purpose of the rule was to ensure that, where a respondent participates in the proceedings, it must file a jurisdictional objection by the time it responds substantively to the claim brought against it. The fact that the respondent chose not to file a jurisdictional objection pursuant to the SIAC Rules meant that there was no injustice in requiring a respondent to file a jurisdictional objection within a specific timeframe. If there had been a justifiable delay, the tribunal would have been empowered under the SIAC Rules to admit it outside the stipulated time, but no such justification existed in this case.[10]
The respondent then applied before the Singapore High Court for a declaration that the sole arbitrator did not have jurisdiction over the proceedings.[11]
The Singapore High Court agreed with the sole arbitrator. Relying on both the SIAC Rules and Article 16(2) of the Model Law, as enacted in Singapore,[12] it held that the objection was out of time. Its reasoning is notable because it emphasised purpose over literalism. The court considered that allowing a respondent to withhold a jurisdictional objection until after the evidential hearing simply because it had declined to submit a statement of defence would defeat the very aim of the rule, namely to prevent delay and tactical ambush.[13]
A similar issue arose in A v B, before the English Commercial Court under the LCIA Rules and the Arbitration Act 1996. There, the respondent challenged the jurisdiction of the tribunal shortly before the date on which its statement of defence was due, on the grounds that the request for arbitration was invalid.[14] The tribunal made a partial award on jurisdiction, dismissing the challenge as waived because it was brought too late.[15] The respondent then commenced proceedings before the UK Commercial Court.
The Commercial Court accepted that the request for arbitration had indeed been invalid, as it was an “ineffective attempt to refer separate disputes to a single arbitration.”[16] The court then turned to whether the respondent had indeed lost its right to object.
Significantly, the court held that the starting point was section 31(1) of the Arbitration Act 1996, not the LCIA Rules, because it was unlikely that the rules were intended to depart materially from the statutory regime.[17] Section 31(1)[18] does not require that an objection be raised “as soon as possible”; rather, it must be made no later than the first step taken to contest the merits. The court therefore read Article 23.3 of the LCIA Rules, which does contain such “as soon as possible” language,[19] in a way consistent with the Act: the rules were designed to exclude genuinely untimely objections, not to introduce a stricter autonomous regime.[20]
These cases illustrate two broader points. First, the spirit of the timing rule, as well as the corresponding national law, often matters more than its literal wording. The purpose is to prevent undue delay and tactical manoeuvring, so an objection may be treated as late even where a party can formulate a technically literal argument to the contrary.
Secondly, tribunals and courts often address untimeliness and merits together. Even where lateness is invoked, decision-makers frequently still examine the substance of the objection. That pattern becomes even clearer in investment arbitration.
Timing of Jurisdictional Objections in Investment Arbitration
Investment arbitration, especially under the International Centre for the Settlement of Investment Disputes (“ICSID”) framework, also emphasises the need for prompt submission of jurisdictional objections.
Rule 41(1) of the 2006 ICSID Arbitration Rules provided that any objection that the dispute or any ancillary claim is not within the jurisdiction of the ICSID or, for other reasons, is not within the competence of the arbitral tribunal shall be made “as early as possible” but “no later than the expiration of the time limit fixed for the filing of the counter-memorial, or, if the objection relates to an ancillary claim, for the filing of the rejoinder – unless the facts on which the objection is based are unknown to the party at that time.”[21]
On paper, this appears strict. In practice, however, ICSID tribunals have not always treated delay as determinative.
Investment Cases
For example, while claiming that belated submission of jurisdictional objections resulted in their waiver, some tribunals have nonetheless dedicated a full analysis to the merits of the objections, noting that they would also fail on that basis:
- In Desert Line v. Yemen, the respondent waited until the last day fixed for the filing of its counter-memorial when, instead of a counter-memorial, it filed a 79-page document entitled “Objections to Jurisdiction” along with two volumes of exhibits.[22] The tribunal recognised that the fact that objections shall be filed with ICSID no later than the deadline for the counter-memorial does not mean that the respondent was not bound to raise them before that date, if they were or ought to have been already manifest, in view of the as early as possible requirement of Article 41.[23] However, the tribunal nonetheless examined and disposed of the respondent’s objections.[24]
- In Siag v. Egypt, following a partial award on jurisdiction, the respondent belatedly raised additional jurisdictional objections on the basis of the claimant’s nationality and alleged bankruptcy.[25] The tribunal considered that the respondent’s objections to jurisdiction “were not brought ‘as early as possible’ and have been waived.”[26] However, despite this finding, the tribunal nonetheless analysed the merits of the objections in order to state that “[e]ven had Egypt’s objections not been waived the Tribunal considered that they fail on their merits.”[27]
- In Generation Ukraine v. Ukraine, the tribunal dismissed a jurisdictional objection raised by the respondent at the final hearing “as having been raised late”, citing Rule 41.[28] Nonetheless, the tribunal specified that “[e]ven had this not been so, the Tribunal would dismiss [the objection] as hypertechnical and unmeritorious”.[29]
Other tribunals, however, have found that their duty to determine their own jurisdiction overrides the waiver provision of Rule 41(1) and requires them to consider all jurisdictional objections:
- In Zhinvali v. Georgia, the respondent raised for the first time a jurisdictional objection only in its rejoinder, and statements in its counter-memorial implied a recognition of the respondent’s consent to ICSID jurisdiction.[30] The respondent never claimed in its rejoinder or thereafter that its delay in raising its jurisdictional objections was based on facts unknown at the time that it had filed its counter-memorial, and consequently, the tribunal found that the respondent failed to meet the plainly mandatory requirements of Rule 41(1).[31] However, the tribunal found that in keeping with the dictates of Article 41 of the ICSID Convention, it had no other alternative but to follow Rule 41(2)’s invitation to the tribunal “on its own initiative” to consider “at any stage of the proceeding, whether the dispute […] is within the jurisdiction of the Centre and within its own competence”, as Rule 41(2) took priority over the waiver provisions of Rule 27.[32] Therefore, the tribunal concluded that any waiver by the respondent of its rights “would not, and could not, foreclose this institutional prerogative of the Tribunal”, and thus considered the merits of the respondent’s objection.[33]
- In AIG v. Kazakhstan, the tribunal opined that the claimant’s argument that the respondent had waived its objections to jurisdiction when it made them over two months after having filed its counter-memorial could not be accepted because “[o]bjections to the jurisdiction of an adjudicatory body cannot be ignored, if raised during the arbitral proceedings – delay notwithstanding.”[34] The tribunal further explained that Rule 41 of the ICSID Rules was intended simply “to alert the parties to bring forth their objections, basic to the dispute being adjudicated upon the merits, at the earliest possible point of time”, but not to be coercive.[35] Instead, according to the tribunal, Article 41 of the ICSID Convention “requires a Tribunal to determine every objection to jurisdiction.”[36]
The result is that, in ICSID arbitration, timing requirements are important but rarely conclusive. Tribunals often regard their duty under Article 41 of the Convention as outweighing any procedural waiver argument, with the consequence that even late objections are usually examined on their merits.
Conclusion
Across arbitration regimes, the formal rule is broadly consistent: jurisdictional objections should be raised early, usually no later than the first substantive defence. The divergence lies not in the existence of timing requirements but in the consequences attached to non-compliance.
Tribunals in both commercial and investment arbitration often treat timeliness as an important procedural requirement, yet not an absolute bar. While late objections may be deemed waived in principle, tribunals frequently still examine their merits, either as a matter of prudence or because of their independent duty to satisfy themselves of their jurisdiction.
This practice likely reflects a prudential concern on the part of tribunals to insulate their awards from subsequent challenge, which is understandable.[37] However, it also risks diluting the normative force of timeliness requirements, effectively reducing them from binding procedural obligations to little more than hortatory reminders.
The case law suggests that the rule on timing serves primarily to promote procedural efficiency and prevent tactical ambush, rather than to preclude substantive review altogether. This is particularly evident in ICSID arbitration, where tribunals have emphasised that their obligation under Article 41 of the ICSID Convention to determine jurisdiction may override strict waiver provisions.
In practical terms, while late jurisdictional objections may still receive full analytical treatment, parties should not rely on such flexibility. The safest course remains to raise any jurisdictional objections as early as possible, ideally in the first substantive submission. Delay risks not only procedural dismissal but also undermines the credibility of the objection, even if tribunals ultimately proceed to consider it on the merits.
[1] UNCITRAL Arbitration Rules, Article 23(2) (“A plea that the arbitral tribunal does not have jurisdiction shall be raised no later than in the statement of defence or, with respect to a counterclaim or a claim for the purpose of a set-off, in the reply to the counterclaim or to the claim for the proposed set-off. A party is not precluded from raising such a plea by the fact that it has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.”).
[2] HKIAC Arbitration Rules, Article 19.3 (“A plea that the arbitral tribunal does not have jurisdiction shall be raised if possible in the Answer to the Notice of Arbitration, and shall be raised no later than in the Statement of Defence, or, with respect to a counterclaim, in the Defence to the Counterclaim. A party is not precluded from raising such a plea by the fact that it has designated or appointed, or participated in the designation or appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitration. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.”).
[3] SIAC Arbitration Rules, Rule 31.2 (“Any objection that: (a) the Tribunal does not have jurisdiction shall be raised no later than in a Statement of Defence or with respect to a counterclaim, in a Statement of Defence to a Counterclaim; or (b) the Tribunal is exceeding the scope of its jurisdiction shall be raised within 15 days from the date that the matter alleged to be beyond the scope of the Tribunal’s jurisdiction arises during the arbitration. The Tribunal may admit an objection raised by a party outside the time limits under this Rule 31.2 if it considers the delay to be justified. A party is not precluded from raising an objection under this Rule 31.2 by the fact that it has nominated, or participated in the nomination of, an arbitrator.”).
[4] LCIA Arbitration Rules, Article 23.3 (“An objection by a Respondent that the Arbitral Tribunal does not have jurisdiction shall be raised as soon as possible but not later than the time for its Statement of Defence; and a like objection by any party responding to a counterclaim or cross-claim shall be raised as soon as possible but not later than the time for its Statement of Defence to Counterclaim or Cross-Claim. An objection that the Arbitral Tribunal is exceeding the scope of its authority shall be raised promptly after the Arbitral Tribunal has indicated its intention to act upon the matter alleged to lie beyond its authority. The Arbitral Tribunal may nevertheless admit an untimely objection as to its jurisdiction or authority if it considers the delay justified in the circumstances.”).
[5] UNCITRAL Model Law 2006, Article 16 (“(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that he has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.”).
[6] 1996 Arbitration Act, s. 31 (“(1) An objection that the arbitral tribunal lacks substantive jurisdiction at the outset of the proceedings must be raised by a party not later than the time he takes the first step in the proceedings to contest the merits of any matter in relation to which he challenges the tribunal’s jurisdiction. A party is not precluded from raising such an objection by the fact that he has appointed or participated in the appointment of an arbitrator. (2) Any objection during the course of the arbitral proceedings that the arbitral tribunal is exceeding its substantive jurisdiction must be made as soon as possible after the matter alleged to be beyond its jurisdiction is raised. (3) The arbitral tribunal may admit an objection later than the time specified in subsection (1) or (2) if it considers the delay justified.”).
[7] Hunan Xiangzhong Mining Group Ltd v Oilive Pte Ltd [2022] SGHC 43, para. 40.
[8] Hunan Xiangzhong Mining Group Ltd v Oilive Pte Ltd [2022] SGHC 43, para. 22.
[9] Hunan Xiangzhong Mining Group Ltd v Oilive Pte Ltd [2022] SGHC 43, para. 23.
[10] Hunan Xiangzhong Mining Group Ltd v Oilive Pte Ltd [2022] SGHC 43, para. 24.
[11] Hunan Xiangzhong Mining Group Ltd v Oilive Pte Ltd [2022] SGHC 43, para. 1.
[12] Hunan Xiangzhong Mining Group Ltd v Oilive Pte Ltd [2022] SGHC 43, para. 40.
[13] Hunan Xiangzhong Mining Group Ltd v Oilive Pte Ltd [2022] SGHC 43, para. 45.
[14] A v B [2017] EWHC 3417, para. 10.
[15] A v B [2017] EWHC 3417, para. 11.
[16] A v B [2017] EWHC 3417, para. 23.
[17] A v B [2017] EWHC 3417, para. 31.
[18] 1996 Arbitration Act, s. 31(1) (“An objection that the arbitral tribunal lacks substantive jurisdiction at the outset of the proceedings must be raised by a party not later than the time he takes the first step in the proceedings to contest the merits of any matter in relation to which he challenges the tribunal’s jurisdiction. A party is not precluded from raising such an objection by the fact that he has appointed or participated in the appointment of an arbitrator.”)
[19] LCIA Arbitration Rules, Article 23.3 (“An objection by a Respondent that the Arbitral Tribunal does not have jurisdiction shall be raised as soon as possible but not later than the time for its Statement of Defence; and a like objection by any party responding to a counterclaim or cross-claim shall be raised as soon as possible but not later than the time for its Statement of Defence to Counterclaim or Cross-Claim. An objection that the Arbitral Tribunal is exceeding the scope of its authority shall be raised promptly after the Arbitral Tribunal has indicated its intention to act upon the matter alleged to lie beyond its authority. The Arbitral Tribunal may nevertheless admit an untimely objection as to its jurisdiction or authority if it considers the delay justified in the circumstances.”).
[20] A v B [2017] EWHC 3417, para. 38.
[21] ICSID Arbitration Rules, Rule 41. It should be noted, however, that, in 2022, the ICSID Rules were updated. Now, Rule 41(1) of the 2022 ICSID Arbitration Rules establishes the ability of parties to object that a claim is manifestly without legal merit because of, inter alia, a lack of jurisdiction of the ICSID or the tribunal. In such a case, Rule 41(2) mandates that a party shall file its written objection “no later than 45 days after the constitution of the Tribunal”. This is without prejudice to the right of a party under Rule 43 of the 2022 ICSID Arbitration Rules to file a preliminary objection that the dispute or any ancillary claim is not within the jurisdiction of the ICSID or for other reasons is not within the competence of the Tribunal, in which case the objecting party must notify the tribunal and the other party “as soon as possible”, without the specification that it must do so before the filing of the counter-memorial. Therefore, the previous Article 41 has effectively moved to Article 43.
[22] Desert Line Projects LLC v. Republic of Yemen, ICSID Case No. ARB/05/17, Award, 6 February 2008, para. 90.
[23] Desert Line Projects LLC v. Republic of Yemen, ICSID Case No. ARB/05/17, Award, 6 February 2008, para. 97.
[24] Desert Line Projects LLC v. Republic of Yemen, ICSID Case No. ARB/05/17, Award, 6 February 2008, para. 98.
[25] Waguih Elie George Siag and Clorinda Vecchi v. Arab Republic of Egypt, ICSID Case No. ARB/05/15, Award, 1 June 2009, paras. 117, 219.
[26] Waguih Elie George Siag and Clorinda Vecchi v. Arab Republic of Egypt, ICSID Case No. ARB/05/15, Award, 1 June 2009, para. 360.
[27] Waguih Elie George Siag and Clorinda Vecchi v. Arab Republic of Egypt, ICSID Case No. ARB/05/15, Award, 1 June 2009, para. 360.
[28] Generation Ukraine Inc. v. Ukraine, ICSID Case No. ARB/00/9, Award, 16 September 2003, para. 16.1.
[29] Generation Ukraine Inc. v. Ukraine, ICSID Case No. ARB/00/9, Award, 16 September 2003, para. 16.1.
[30] Zhinvali Development Ltd. v. Republic of Georgia, ICSID Case No. ARB/00/1, Award, 24 January 2003, para. 316.
[31] Zhinvali Development Ltd. v. Republic of Georgia, ICSID Case No. ARB/00/1, Award, 24 January 2003, para. 317.
[32] Zhinvali Development Ltd. v. Republic of Georgia, ICSID Case No. ARB/00/1, Award, 24 January 2003, para. 321, 323.
[33] Zhinvali Development Ltd. v. Republic of Georgia, ICSID Case No. ARB/00/1, Award, 24 January 2003, para. 324.
[34] AIG Capital Partners, Inc. and CJSC Tema Real Estate Company v. Republic of Kazakhstan, ICSID Case No. ARB/01/6, Award, 7 October 2003, para. 9.2.
[35] AIG Capital Partners, Inc. and CJSC Tema Real Estate Company v. Republic of Kazakhstan, ICSID Case No. ARB/01/6, Award, 7 October 2003, para. 9.2.
[36] AIG Capital Partners, Inc. and CJSC Tema Real Estate Company v. Republic of Kazakhstan, ICSID Case No. ARB/01/6, Award, 7 October 2003, para. 9.2.
[37] C. Schreuer, Belated Jurisdictional Objections in ICSID Arbitration, 2009 TDM 1081, p. 1081.
