' Introduction and Background
1. By way of Originating Summons dated 1st August 2025, the applicant, PINK PEARL, seeks orders to stay the ongoing arbitral proceedings between the parties pending the hearing and determination of the present application. In addition, the applicant invites this Court to review the ruling delivered by the Sole Arbitrator on 11th July 2025 and to issue a declaration affirming that the arbitral tribunal has jurisdiction to entertain its counterclaim.
2. In response, the respondent, ESTEEL, filed a preliminary objection dated 21st August 2025, challenging the jurisdiction of this Court to hear and determine PINK PEARL’s application. Both parties filed written submissions on the objection, which I have carefully considered.
Analysis and Determination
3. The starting point is the recognition that this Court’s power to intervene in arbitral proceedings is narrowly circumscribed under Section 10 of the Arbitration Act, which limits judicial involvement to instances expressly provided for in the Act.
4. On the first ground of the preliminary objection, the respondent contends that Section 17(6) of the Act applies only where the arbitral tribunal has ruled affirmatively, that is, positively, on its jurisdiction as a preliminary question. It argues that the provision does not apply in the present case, as the Sole Arbitrator issued a negative ruling, expressly declining jurisdiction over the applicant’s counterclaim. The applicant disagrees with this position.
5. In my view, the interpretation by the respondent is unduly restrictive and cannot be sustained when read against the broader context and purpose of Section 17. The respondent’s position would lead to an unjust and illogical outcome which is that a party whose claim is excluded from arbitration would be left without recourse, while a party whose claim is admitted could seek judicial review. Such asymmetry is neither contemplated nor supported by the language of the Act as a whole.
6. The right to challenge a jurisdictional ruling must apply equally to both acceptance and rejection of jurisdiction. A purposive reading of Section 17 supports this conclusion. Section 17(1), which provides that “the arbitral tribunal may rule on its own jurisdiction,” must be interpreted to encompass both affirmative and negative rulings. This interpretation aligns with Article 159(2)(c) of the Constitution, which promotes alternative dispute resolution mechanisms, including arbitration, and with the objectives of the Arbitration Act, which seek to uphold party autonomy while ensuring access to judicial recourse where procedural rights are implicated.
7. The respondent further argues that the ruling of 11th July 2025 was a final determination and not an interlocutory decision, and therefore not amenable to judicial review. The applicant disputes this characterization of the ruling as a final determination.
8. A combined reading of Section 17(5) and 17(6) of the Arbitration Act reveals a clear procedural framework for challenging jurisdictional rulings made by an arbitral tribunal. Section 17(5) establishes that the tribunal has discretion to rule on a jurisdictional plea either as a preliminary question or within the final award on the merits. It states as follows;
(5) The arbitral tribunal may rule on a plea referred to in subsections (2) and (3) either as a preliminary question or in an arbitration award on the merits.
9. This bifurcation is significant, as it determines the timing and nature of any challenge that an aggrieved party may pursue. Section 17(6) provides a remedy where the tribunal rules on jurisdiction as a preliminary question, and allows an aggrieved party to apply to the High Court within thirty days of receiving notice of the ruling.
10. In the present case, the Sole Arbitrator ruled on the jurisdictional plea concerning the counterclaim as a standalone issue, separate from the merits. This constitutes a ruling on a preliminary question within the meaning of Section 17(5). Consequently, Section 17(6) becomes operative, and the applicant is entitled to challenge that ruling before this Court.
11. The respondent’s attempt to characterize the ruling as final is therefore misplaced. A final award on the merits would encompass a comprehensive adjudication of the substantive claims, not merely a threshold determination on jurisdiction. The tribunal’s decision to decline jurisdiction over the counterclaim, without addressing the merits, is inherently preliminary in nature, even if it has dispositive consequences for that part of the case.
12. It is therefore clear that the ruling of 11th July 2025 was a preliminary determination, and the applicant is entitled to challenge it before the High Court. The respondent’s objection cannot be sustained.
Disposition
13. Accordingly, having carefully considered the preliminary objection, the parties’ submissions, and the relevant provisions of the Arbitration Act, I find that this Court has jurisdiction to entertain the applicant’s challenge under Section 17(6).
14. The ruling of the Sole Arbitrator dated 11th July 2025, which declined jurisdiction over the applicant’s counterclaim as a preliminary question, is amenable to judicial review under the said provision.
15. The preliminary objection dated 21st August 2025 is therefore dismissed with costs. The matter shall proceed to hearing on the substantive application challenging the arbitral tribunal’s ruling on jurisdiction.
'
1. By way of Originating Summons dated 1st August 2025, the applicant, PINK PEARL, seeks orders to stay the ongoing arbitral proceedings between the parties pending the hearing and determination of the present application. In addition, the applicant invites this Court to review the ruling delivered by the Sole Arbitrator on 11th July 2025 and to issue a declaration affirming that the arbitral tribunal has jurisdiction to entertain its counterclaim.
2. In response, the respondent, ESTEEL, filed a preliminary objection dated 21st August 2025, challenging the jurisdiction of this Court to hear and determine PINK PEARL’s application. Both parties filed written submissions on the objection, which I have carefully considered.
Analysis and Determination
3. The starting point is the recognition that this Court’s power to intervene in arbitral proceedings is narrowly circumscribed under Section 10 of the Arbitration Act, which limits judicial involvement to instances expressly provided for in the Act.
4. On the first ground of the preliminary objection, the respondent contends that Section 17(6) of the Act applies only where the arbitral tribunal has ruled affirmatively, that is, positively, on its jurisdiction as a preliminary question. It argues that the provision does not apply in the present case, as the Sole Arbitrator issued a negative ruling, expressly declining jurisdiction over the applicant’s counterclaim. The applicant disagrees with this position.
5. In my view, the interpretation by the respondent is unduly restrictive and cannot be sustained when read against the broader context and purpose of Section 17. The respondent’s position would lead to an unjust and illogical outcome which is that a party whose claim is excluded from arbitration would be left without recourse, while a party whose claim is admitted could seek judicial review. Such asymmetry is neither contemplated nor supported by the language of the Act as a whole.
6. The right to challenge a jurisdictional ruling must apply equally to both acceptance and rejection of jurisdiction. A purposive reading of Section 17 supports this conclusion. Section 17(1), which provides that “the arbitral tribunal may rule on its own jurisdiction,” must be interpreted to encompass both affirmative and negative rulings. This interpretation aligns with Article 159(2)(c) of the Constitution, which promotes alternative dispute resolution mechanisms, including arbitration, and with the objectives of the Arbitration Act, which seek to uphold party autonomy while ensuring access to judicial recourse where procedural rights are implicated.
7. The respondent further argues that the ruling of 11th July 2025 was a final determination and not an interlocutory decision, and therefore not amenable to judicial review. The applicant disputes this characterization of the ruling as a final determination.
8. A combined reading of Section 17(5) and 17(6) of the Arbitration Act reveals a clear procedural framework for challenging jurisdictional rulings made by an arbitral tribunal. Section 17(5) establishes that the tribunal has discretion to rule on a jurisdictional plea either as a preliminary question or within the final award on the merits. It states as follows;
(5) The arbitral tribunal may rule on a plea referred to in subsections (2) and (3) either as a preliminary question or in an arbitration award on the merits.
9. This bifurcation is significant, as it determines the timing and nature of any challenge that an aggrieved party may pursue. Section 17(6) provides a remedy where the tribunal rules on jurisdiction as a preliminary question, and allows an aggrieved party to apply to the High Court within thirty days of receiving notice of the ruling.
10. In the present case, the Sole Arbitrator ruled on the jurisdictional plea concerning the counterclaim as a standalone issue, separate from the merits. This constitutes a ruling on a preliminary question within the meaning of Section 17(5). Consequently, Section 17(6) becomes operative, and the applicant is entitled to challenge that ruling before this Court.
11. The respondent’s attempt to characterize the ruling as final is therefore misplaced. A final award on the merits would encompass a comprehensive adjudication of the substantive claims, not merely a threshold determination on jurisdiction. The tribunal’s decision to decline jurisdiction over the counterclaim, without addressing the merits, is inherently preliminary in nature, even if it has dispositive consequences for that part of the case.
12. It is therefore clear that the ruling of 11th July 2025 was a preliminary determination, and the applicant is entitled to challenge it before the High Court. The respondent’s objection cannot be sustained.
Disposition
13. Accordingly, having carefully considered the preliminary objection, the parties’ submissions, and the relevant provisions of the Arbitration Act, I find that this Court has jurisdiction to entertain the applicant’s challenge under Section 17(6).
14. The ruling of the Sole Arbitrator dated 11th July 2025, which declined jurisdiction over the applicant’s counterclaim as a preliminary question, is amenable to judicial review under the said provision.
15. The preliminary objection dated 21st August 2025 is therefore dismissed with costs. The matter shall proceed to hearing on the substantive application challenging the arbitral tribunal’s ruling on jurisdiction.
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