chapter  16
7 Pages

Preliminary issues

ByClare Ambrose, Karen Maxwell, Michael Collett QC

The resolution of a dispute referred to arbitration often depends, at least in part, on the determination of a question of law which can be isolated from factual issues. Legally or commercially determinative preliminary issues can be of tactical significance since they offer an opportunity to “make or break” a case at an early stage. A preliminary issue may be regarded as useful even if it would only be decisive if decided in one way. The arbitrator may also be justified in refusing to rule on hypothetical scenarios where the outcome of the evidence is uncertain. The court’s power to decide preliminary issues is limited to questions of law except as regards jurisdictional issues. If the court decides that a preliminary issue is appropriate an oral hearing will be fixed to determine it. The court will usually fix the hearing as a matter of priority to avoid delay in the arbitration.