A question of Admissibility or Jurisdiction? An overview of international positions regarding compliance with agreed pre-arbitration processes

A recent decision by the High Court of Singapore has addressed, at first instance, a controversial procedural question in international arbitration namely, whether non-compliance with a contractually agreed tiered dispute resolution clause ought to be dealt with by an arbitral tribunal as a question of admissibility or whether it is a condition precedent to the tribunal’s jurisdiction to hear the dispute. 

The resolution of this question is important  because if challenged as a matter impacting the tribunal’s jurisdiction, the issue has the potential not only to seriously disrupt the arbitration process while the tribunal rules on its own jurisdiction under the principle of compétence‑compétence, but may, if the tribunal lacks jurisdiction, cause a tribunal award to be declared invalid or annulled. In contrast, challenges to the admissibility of a claim are generally left as a matter exclusively for consideration and resolution by the arbitral tribunal. 

The High Court’s decision in DRO v DRP [2025] SGHC 255 (DRO v DRP) that tiered dispute resolution clauses are matters going to admissibility, as opposed to jurisdiction, brings Singapore in line with the position in many other major jurisdictions where modern international arbitration is commonplace. However, it remains to be seen whether this decision will be appealed and tested before the Court of Appeal, Singapore’s highest court. 

To assist with understanding the position in each jurisdiction, Bird & Bird has collated the below guide for other countries on whether a failure to comply with a pre-arbitration step would be considered an issue of admissibility or jurisdiction in the eyes of a domestic court:

Singapore

Prior to DRO v DRP, the Singapore courts had not directly addressed the question of whether pre-conditions to arbitration are matters going to jurisdiction or admissibility.

In DRO v DRP, the applicant had contracted with a consortium consisting of the respondent and a separate entity (Company A). Under the contract, both Company A and the respondent were jointly and severally liable as the contractor and the consortium was not recognised as a separate legal entity. 

Issues arose during the project and the applicant entered into a settlement agreement with Company A alone. The respondent then commenced arbitration proceedings against the applicant for payment of invoices and additional works carried out. The applicant filed a jurisdictional challenge which was dismissed by the tribunal, following which the applicant applied to the High Court to decide the matter pursuant to section 10(3)(a) of the International Arbitration Act 1994. 

In its application to the High Court, the applicant raised the following grounds:

1. Issue 1: That the respondent had no locus standi to commence the arbitration without joining Company A as a claimant; and
2. Issue 2: That the respondent did not satisfy the pre-arbitration requirements in the contract before commencing arbitration. 

On Issue 1, the High Court held that the respondent had the requisite locus standi to commence the arbitration. The court found that the dispute resolution clause in the contract was intended to apply to disputes which arose between the applicant and: (a) Company A and the respondent jointly; (b) Company A alone; or (c) the respondent alone. The dispute which arose in this case concerned only the applicant and the respondent. 

On Issue 2, the court first considered whether a failure to comply with a condition precedent to arbitration was a matter of admissibility or jurisdiction. 

The court held that it was a matter of admissibility for the following reasons:

1. This view is consistent with the distinction between jurisdiction and admissibility, i.e., jurisdiction refers to the power of the tribunal to hear a case, whereas admissibility refers to whether it is appropriate for the tribunal to hear the case.
2. A previous Court of Appeal decision, BTN v BTP [2021] 1 SLR 276, had approved this view in obiter.
3. This view aligns with the general consensus in international arbitration that preconditions to arbitration should be treated as matters of admissibility rather than jurisdiction. The High Court saw no reason why Singapore should adopt a contrary position.  

Nevertheless, the High Court found that the dispute resolution clause in the contract did not contain any conditions precedent to arbitration and, in any event, the applicant had waived strict compliance with any pre-arbitration procedures. The High Court therefore dismissed the application. 

As noted above, it remains to be seen whether this decision will be appealed. 

Australia

In Australia, different courts within Australia’s varying jurisdictions having reached contrasting conclusions in recent years on this issue. However, the principle to be derived from the cases is that failure to comply with pre‑arbitration steps will generally be considered to be a matter of admissibility, not jurisdiction, unless the court must conclude from the clear drafting of the clause that the parties’ intention was for the pre-arbitration step to be a jurisdictional precondition.

In WCX M4-M5 Link AT Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd (No 2) [2022], the Supreme Court of NSW reached the conclusion that an expert determination process was a condition precedent to arbitration, and served as a jurisdictional gateway, because of the clear and specific drafting of the dispute‑resolution clause that was under examination in that case. 

In contrast the Supreme Court of SA found in Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2021] that the escalation steps within the tiered dispute resolution clause were of a procedural and not jurisdictional nature, aligning with the modern international approach adopted by the Singapore High Court in DRO v DRP, as well as a number of earlier Australian court decisions from various jurisdictions.[1] 

Australia’s arbitration legislation (both State and Federal) is largely based on the UNCITRAL Model Law, which aligns with legislation in other countries like Hong Kong, and recent cases (such as CBI Constructors Pty Ltd and Another v Chevron Australia Pty Ltd (2024) 419 ALR 126 at [75]) have cited the Hong Kong Court of Final Appeal’s distinction between admissibility and jurisdiction in this area favourably.

The differing outcome in these two Australian cases reemphasises the importance of unambiguous drafting in dispute resolution clauses. In Australia, the risk of potentially invalidating arbitral awards as a result of procedural miscues remains a tangible possibility where the parties’ clear intention from the drafting was to make the pre-arbitration activity a condition precedent to the commencement of arbitration. 

These cases are a prescient reminder for businesses and lawyers to comply with all pre-arbitration steps mandated in an agreement, to avoid the risk of a potential jurisdictional challenge to the arbitration. They also serve as a reminder to parties to consider whether all of the pre-arbitration steps are necessary, or helpful, before entering into commercial agreements. As part of this, they should actively turn their minds to whether the delay to the commencement of the arbitral process and potential uncertainty that is caused by the inclusion of mandatory pre-conditions is appropriate for their transaction. 

United Arab Emirates

In the UAE, compliance with contractual preconditions to arbitration are treated as matters of admissibility rather than jurisdiction. The DIFC Courts were the first UAE jurisdiction to expressly adopt this position, followed by the ADGM Courts and then, more recently, the Dubai Court of Cassation (DCC). 

Under DIFC law, since 2014 it has been well-settled that challenges based on the timing of or readiness for arbitration and compliance with procedural preconditions are matters of admissibility, while challenges based on the existence or validity of the arbitration agreement come down to jurisdiction.[2] In this regard, the DIFC Courts have repeatedly emphasised that parties cannot bypass the tribunal by framing admissibility issues as jurisdictional ones.

Similarly, while the ADGM is a relatively nascent jurisdiction, since 2020 the ADGM Courts have made it clear they will intervene only where the agreement to arbitrate is genuinely in question but will otherwise take a limited supervisory role and defer to arbitral tribunals on procedural and merits-related objections.[3] 

Both the DIFC and ADGM jurisdictions embrace the distinction between jurisdiction and admissibility, but they reach that point through slightly different judicial pathways and with different emphases. Reasoning by the DIFC Courts has developed over a longer period and is heavily influenced by English case law and international arbitral practice. The ADGM Courts, however, frame the distinction between admissibility and jurisdiction as being essential to the limited supervisory role of courts under the ADGM Arbitration Regulations 2015.

Finally, the position in “mainland” Dubai is led by a decision of the Dubai Court of Cassation, which in 2022 confirmed that compliance with contractual preconditions to arbitration are matters of admissibility rather than jurisdiction,[4] and in November 2024 issued a judgment that further clarified how contractual pre‑conditions to arbitration are treated under UAE law.[5]

Alignment between these key jurisdictions within the UAE supports UAE’s status as a jurisdiction highly supportive of arbitration as a dispute resolution mechanism. 

United Kingdom 

London is a global centre for international arbitration and the English court is well known for its pro-arbitration approach. Parties may only challenge an arbitral award on three limited grounds set out in the Arbitration Act 1996 (the Act), one of which is substantive jurisdiction. Successful challenges on jurisdiction are rare and although the English Commercial Court has experienced an increase in applications in recent years, only one application (of 24 applications) was successful between 2023 – 2024. The question of whether compliance with pre-arbitration steps in an arbitration agreement goes to jurisdiction or admissibility is therefore relevant and important. 

Recent decisions of the English Commercial Court confirm that compliance with pre-arbitration procedural requirements are matters of admissibility (on which the tribunal’s decision is final) and not jurisdiction (which would enable a party to challenge an award under section 67 of the Act). The Court’s rationale is clear from two cases in 2021: 

1. In Republic of Sierra Leone v SL Mining Ltd [2021] EWHC 286 (Comm), the Republic of Sierra Leone challenged an ICC award under section 67 on the basis that SL Mining had not sought to settle the dispute within the 3-month period specified in the underlying agreement prior to commencing arbitration. The Commercial Court dismissed the challenge holding that to the extent the issue relates to whether a claim has been presented to the tribunal prematurely (i.e. where a party has not complied with certain pre-arbitration steps), this is a matter of admissibility for the tribunal, rather than intervention by the court on jurisdiction.
2. The case of NWA, FSY v NVF, RWX, KLB [2021] EWHC 2666 (Comm) related to a section 67 jurisdiction challenge of an arbitral award on the basis that a party had failed to try and settle the dispute by mediation within 30 days before commencing an arbitration. The Commercial Court dismissed the challenge to the award, noting that the objective intention of the parties was to obtain a swift and final determination of their dispute (i.e. by expedited arbitration) if the dispute could not be settled by mediation. The Court held that the relevant provision in the arbitration agreement should therefore be construed in light of that intention and not in a way which would allow a party (or parties) to frustrate that intention.

The English Court will apply ordinary principles of contractual interpretation to construe the arbitration agreement and based on the above cases, there is a reluctance to treat a failure to comply with pre-arbitral steps as a bar to proceedings. 

Hong Kong

In Hong Kong, this issue has been settled by the Court of Final Appeal (CFA) in C v D [2023] HKCFA 16, which concluded that non-compliance with preconditions to arbitration is a matter of admissibility (to be decided by the arbitral tribunal), rather than jurisdiction.

In C v D, the dispute resolution clause in the agreement required the parties to conduct “good faith negotiations” for 60 days before referring the matter to arbitration. C argued that the arbitral tribunal lacked jurisdiction on the basis that the precondition to arbitration had not been fulfilled.

Upon appeal to the CFA, the Court clarified that the precondition set out in the arbitration agreement was directed to the obligation to arbitrate, not to the agreement to arbitrate. Therefore, unless it is unequivocally provided in the arbitration agreement that compliance with pre-arbitration steps are preconditions to jurisdiction, any issue concerning compliance with such preconditions to arbitration should presumably be a matter of admissibility and should not be subject to judicial intervention.

Nevertheless, if the parties agree that compliance with such a pre-condition is a jurisdictional issue amenable to court review, they should ensure that this agreement is set out in unequivocally clear language in their dispute resolution clause.

France

French law adopts an approach closely aligned with that recently adopted by the Singapore High Court in DRO v DRP, drawing a clear distinction between jurisdiction and admissibility in the context of multi-tier dispute resolution clauses. This principle applies to both domestic and international arbitration, albeit under different provisions of the French Code of Civil Procedure. 

In domestic arbitration, the Cour de cassation has held that non-compliance with a mandatory mediation clause raises a question of admissibility rather than jurisdiction and therefore cannot constitute a ground for setting aside an arbitral award under Article 1492 of the Code of Civil Procedure (Cass. 1st Civ., 1 February 2023, No. 21-25.024). In international arbitration, the Paris Court of Appeal has similarly ruled that non-compliance with a prior conciliation clause constitutes a matter of admissibility that does not fall within the grounds for annulment set out in Article 1520 of the Code of Civil Procedure (Paris Court of Appeal, 29 June 2021, No. 20/01304). 

The line drawn between admissibility and jurisdiction is of considerable importance under French international arbitration law: while Article 1520 of the Code of Civil Procedure allows the annulment judge to review whether an arbitral tribunal wrongly upheld or declined jurisdiction, decisions relating to admissibility are shielded from judicial review by the principle of non-revision of arbitral awards. Consequently, the annulment judge does not have jurisdiction to review a plea of inadmissibility based on the existence of a pre-arbitration conciliation clause, as such a plea falls exclusively within the arbitral tribunal’s authority. This pro-arbitration approach thus limits judicial interference with arbitral decisions.

Conclusion

The recent decision in Singapore is further evidence, if it was needed, that the strong weight of authority now supports the notion that in modern international arbitration practice, pre-arbitration steps are generally matters solely for the consideration of the tribunal as a matter of admissibility, rather than matters going to the tribunal’s jurisdiction. This is not an immutable rule as in exceptional cases, where the parties have clearly expressed their intention to the contrary, such pre-arbitration steps may in fact be a condition precedent and are therefore jurisdictional in nature.

For further advice or information regarding the nuances of international arbitration in your jurisdiction, reach out to our expert team.