Jurisdiction: who decides the jurisdictional question?

The Court of Appeal in Hashwani and Others v OMV Maurice Energy Ltd [2015] EWCA Civ 1171 has confirmed the long-standing approach of the English courts to the effect that, if there is a dispute as to the existence or scope of an arbitration agreement, the court will rarely exercise its inherent jurisdiction to stay its own proceedings and allow the arbitrators the first opportunity to resolve the matter.

The English approach contrasts dramatically with that taken in other common law jurisdictions, where a stay will be granted as long as the court is satisfied that there is a prima facie case that there is a valid and applicable arbitration clause. The difference in approach rests upon the view in England that there can always be an appeal against an award on jurisdiction so that it saves time and money for the court to deal with the matter in the first place.