Rationale & Relevance
In dismissing the Applicant’s application, the Court stated that the Applicant’s objection was not raised as required as per Section 17 of the Arbitration Act. The Section confers on the Arbitral Tribunal the power to rule on all jurisdictional issues pertaining to its own competence to adjudicate on a matter. The court stated that there is no jurisdiction given to the Arbitral Tribunal as a matter of right or inherence or by statute, rather, the jurisdiction of the arbitral tribunal is derived through the Arbitration Clause or Arbitration Agreement between the parties. The Court observed that the arbitral tribunal is bound by the agreement between the parties therefore Jurisdiction of the Arbitral Tribunal was admitted.
The court relied on a passage of the Halsbury law that states that parties to an arbitration agreement may if they wish, contract that no arbitration proceedings shall be brought after the expiration of some shorter period than that applicable under the statute. The Court further outlined that there is a clear distinction between jurisdiction and limitation of actions. Limitation only limits a party’s right to institute a claim which is statue barred, whereas absence of jurisdiction connotes that the court or tribunal has no power to entertain the case.
Finally, the Court stated that the preliminary objection concerned a point of fact and not of law as the Applicant brought out the issue of whether the Respondent had committed fraud. The Court observed that this is a weighty issue of fact which can only be resolved by way of evidence and must be strictly proved. The Court stated that such an issue cannot be determined as a ground of preliminary objection