ICDPASO Commercial Arbitration Rules Interpretation Series 22“Objections to Jurisdiction of the Arbitral Tribunal”

Arbitral jurisdiction is the foundation of arbitral proceedings, as it determines whether the arbitral tribunal has the authority to hear a case and render a binding award. In commercial arbitration, raising an objection to jurisdiction is an important procedural right of the parties. Article 22 of the ICDPASO Commercial Arbitration Rules (“the Rules”) systematically stipulates “objections to jurisdiction of the arbitral tribunal.” It not only incorporates advanced practices in international commercial arbitration—such as the principles of “Competence-Competence” and separability of the arbitration agreement—but also introduces innovations regarding time limits for objections and procedural arrangements. These provisions reflect a balance between efficiency and fairness and establish a comprehensive institutional framework for jurisdictional objections.

I. Text of Article 22 of the Rules: “Objections to Jurisdiction of the Arbitral Tribunal”

Article 22. Objections to Jurisdiction of the Arbitral Tribunal

1. The Arbitral Tribunal has the power to rule on its own jurisdiction, including any dispute relating to the existence, validity or scope of the arbitration agreement.

2. For the purpose of the preceding paragraph, the arbitration clause forming part of the contract or the arbitration agreement attached to the contract shall be severable from the contract. The validity of the arbitration clause or arbitration agreement shall not be affected by the conclusion, non-entry-into-force, invalidity, inefficacy, change, dissolution, suspension, termination, transfer or cancellation of the contract.

3. The party’s objection to the jurisdiction of the Arbitral Tribunal shall be raised in the Statement of Defense at the latest; the objection to the Arbitral Tribunal’s jurisdiction beyond the scope of the submissions to arbitration shall be raised in writing within fourteen (14) days upon occurrence of the alleged beyond the scope of the submissions to arbitration.

Where a party raises an objection to the jurisdiction beyond the aforesaid time limit, the Arbitral Tribunal may accept the objection if the delay is justified.

The fact that the parties have appointed or participated in the appointment of arbitrators shall not prevent them from raising an objection to the jurisdiction.

4. In respect of the objection to jurisdiction raised in accordance with this Article, the Arbitral Tribunal may make a ruling on it as if it were a preliminary issue or in the substantive award.

II. Comparative Analysis: Horizontal Comparison with Major Arbitration Rules

1. Comparison of the Principle of “Competence-Competence”

The principle of “Competence-Competence” is a fundamental principle in international commercial arbitration. Its core is that the arbitral tribunal has the authority to determine its own jurisdiction. Article 22 paragraph 1 of the Rules expressly adopts this principle, aligning with the rules of major arbitration institutions worldwide. For example, the ICC Arbitration Rules (2021) Article 6(3) 1, the UNCITRAL Arbitration Rules (2021) Article 23.1 2, the LCIA Arbitration Rules (2020) Article 23(4) 3, and the HKIAC Administered Arbitration Rules (2024) Article 19(1) 4 all provide that the arbitral tribunal may decide jurisdictional issues directly. This paragraph also indicates the typical categories of jurisdictional objections. Common objections concern the existence, validity, and scope of the arbitration agreement. In practice, objections regarding a party’s subject qualification are also common; accordingly, the paragraph uses “any dispute relating to” as a supplementary fallback formulation.

2. Comparison of the Principle of Separability of the Arbitration Agreement

Article 22 paragraph 2 establishes the principle of separability of the arbitration agreement, which is largely consistent with the provisions of major international arbitration institutions. The UNCITRAL Rules 5, ICC Rules 6, the SIAC Arbitration Rules 7, and the HKIAC Rules 8 contain nearly identical provisions.

(3)Comparison of the adjudication method of Jurisdictional Objections 

Article 22 paragraph 4 grants the arbitral tribunal discretion, in light of the specific circumstances of the case, whether to rule on jurisdiction as a preliminary issue or in the substantive award. Rules such as those of the LCIA and SIAC similarly allow jurisdictional objections to be dealt with either by a preliminary decision or in the final award. 9 This flexible approach enables the tribunal to dispose swiftly of manifestly unmeritorious objections, or to hear objections that are closely intertwined with the merits together with the substantive issues. In addition, arbitration institutions differ in how they handle jurisdictional objections before the tribunal is constituted. The ICC, HKIAC, and SIAC Rules provide for a Prima Facie review mechanism by the institution prior to constitution of the tribunal.10 By contrast, while the Rules do not expressly set out an institutional pre-review mechanism of this kind, in practice the ICDPASO Arbitration Court generally conducts a formal review before referring the substantive dispute to the arbitral tribunal, reflecting a different balance between “party autonomy in arbitration” and “institutional gatekeeping.”

Through the above comparison, the design of Article 22 fully draws on and integrates the consensus embodied in major international arbitration rules. In its details, it closely tracks mainstream international approaches, while also resonating with the efficiency-oriented spirit commonly reflected in Chinese arbitration rules.

III. Commentary on Article 22 paragraph 1: The Principle of the Arbitral Tribunal’s Power to Rule on Its Own Jurisdiction (“Competence-Competence”)

This paragraph affirms the principle of “Competence-Competence” (Kompetenz-Kompetenz), namely that the arbitral tribunal has the authority to determine its own jurisdiction.

1. Meaning and Purpose of the Principle

The principle of “Competence-Competence”has both positive and negative dimensions. The “positive effect” means that the arbitral tribunal has the power to review and decide, in the first instance, objections relating to its jurisdiction. The “negative effect” means that, before the tribunal has ruled on jurisdiction, courts should not intervene prematurely, so as to avoid interfering with the arbitral process. The purpose of the principle is to safeguard the independence and integrity of arbitration and to prevent parties from using jurisdictional disputes to delay or derail proceedings. By empowering the tribunal to review its own jurisdiction at the outset, arbitration does not come to a standstill merely because one party raises an objection; instead, the tribunal determines whether the objection is well-founded and whether the proceedings should continue. This both promotes efficiency and avoids unnecessarily diverting disputes to national courts, enabling arbitration to function as a mechanism rooted in party autonomy.

2. International Legal Principle Basis

The “Competence-Competence” principle is well established in international arbitration doctrine and has been widely accepted by jurisdictions around the world. The UNCITRAL Model Law on International Commercial Arbitration first expressly recognized this principle in 1985, granting arbitral tribunals the authority to rule on their own jurisdiction.11 Many national arbitration laws subsequently drew on this approach—for example, France and the United Kingdom have recognized that the arbitral tribunal may decide jurisdictional objections in the first instance.12 In this sense, “Competence-Competence” has become one of the basic norms of international arbitration.

It should be noted that “Competence-Competence” does not mean that the tribunal’s jurisdictional decision is final and immune from any review. In most jurisdictions and under many rules, the tribunal’s award on jurisdiction remains subject to limited judicial review. Under the UNCITRAL Model Law, for example, after a tribunal rules as a preliminary question that it has jurisdiction, either party may, within a specified period (typically 30 days), request a court to review that award.13 However, courts generally do not intervene proactively before the arbitration has concluded. This structure balances arbitral autonomy and judicial supervision: the tribunal acts as the primary gatekeeper, while courts provide a safeguard mainly at the set-aside or enforcement stage. Accordingly, while the Rules confer decision-making power on the tribunal, a party dissatisfied with the tribunal’s decision may still raise the objection in set-aside proceedings or in proceedings resisting enforcement after an award is rendered, as permitted by applicable law.

3. Evolution and New Developments in Chinese Law

In China, since the implementation of the Arbitration Law (1994), the allocation of decision-making power on the validity of arbitration agreements and jurisdictional objections has historically been relatively conservative. The arbitral tribunal itself was not directly granted “Competence-Competence” by statute. Where a party objected to the validity of an arbitration agreement, it could request either the arbitration commission or the people’s court to decide before the first hearing; if one party applied to the arbitration commission while the other brought the matter to court, the court would decide. This mechanism to some extent reflects an “institution-centered” approach, but it also reduces the tribunal’s initiative as the adjudicator of the dispute.

However, the newly revised PRC Arbitration Law (as Amended in 2025)(the “New Arbitration Law”), adopted by the Standing Committee of the 14th National People’s Congress at its 17th session, formally introduces the “Competence-Competence” principle.14 Compared with the former model—under which jurisdiction was determined by the arbitration commission and the people’s court—the New Arbitration Law (Article 31) includes the arbitral tribunal as one of the entities empowered to decide jurisdictional issues. This can be regarded as a significant step in incorporating “Competence-Competence” into China’s arbitration regime. At present, under the New Arbitration Law, the tribunal’s “Competence-Competence” is subject to a precondition: the parties must request the tribunal to decide an objection concerning the validity of the arbitration agreement. This reform aligns closely with the spirit of Article 22 of the Rules.

In sum, Article 22 paragraph 1, by explicitly empowering the arbitral tribunal to rule on its own jurisdiction, strengthens the foundation for an independent and autonomous arbitral process. Supported by international arbitration doctrine and the New Arbitration Law of China, this provision will help prevent jurisdictional disputes from improperly obstructing arbitration and ensure that proceedings can progress in an orderly manner under the tribunal’s control.

IV. Commentary on Article 22 paragraph 2: The Principle of Separability of the Arbitration Agreement

Article 22 paragraph 2 explains the principle of separability of the arbitration agreement. Under this paragraph, the arbitration agreement—whether as an arbitration clause within the main contract or as a separate arbitration agreement related to the contract—is independent from the main contract. Specifically, the formation, amendment, pending effectiveness, termination, revocation or invalidity of main contract do not affect the validity of the arbitration clause or arbitration agreement.

1. Meaning of the Separability Principle

Separability or Autonomy of Arbitration Agreement is another cornerstone principle of international arbitration. Its core meaning is that an arbitration clause is legally separable from the main contract and should be treated as an independent agreement. Where the main contract is found invalid, revoked, or terminated for some reason, the arbitration clause remains valid unless the clause itself is independently vitiated. This ensures that the arbitral tribunal can also have jurisdiction to determine issues concerning the validity of the underlying contract.

2 Doctrinal Foundations of Separability

The separability principle emerged from twentieth-century arbitration practice and is widely regarded as a key legal mechanism for ensuring the effective operation of arbitration. As early as the UK case Heyman v. Darwins Ltd. (1942)15, courts showed a tendency to consider arbitration clauses separately from the main contract. In 1967, the U.S. Supreme Court, in Prima Paint16, recognized the separability of arbitration agreements. Thereafter, the principle has been widely accepted across jurisdictions and in international instruments, including the UNCITRAL Model Law.17

The doctrinal basis of separability is that the arbitration agreement is an independent consensus on dispute resolution mode; its validity should not depend on the continued existence of other contractual terms in main contract. Otherwise, the parties’ intention to arbitrate could easily be defeated. Without separability, a party could evade arbitration simply by alleging that the main contract is invalid, thereby obstructing proceedings and undermining the effectiveness of arbitration. The separability principle prevents the circular logic of “if the contract is invalid, the arbitration clause must also be invalid,” thereby safeguarding the independent value of arbitration agreements as the consensual outcome among the parties involved in dispute resolution.

3. Practical Significance and the Position Under Chinese Law

In practice, separability most commonly arises where one party alleges that the main contract is invalid due to false expression of intent, malicious collusion harming the lawful rights of others, or violation of offends the public order and good morals, and then refuses arbitration in an attempt to return the dispute to court litigation. Judicial practice in many jurisdictions generally applies separability and reviews the arbitration clause independently. If the arbitration clause itself is not invalid, it remains effective even if the main contract is invalid; the parties remain bound by it, and the dispute should be submitted to arbitration. The arbitral tribunal may also determine the contract’s validity in the first instance, without awaiting a court decision.

The development direction of amendments to China’s Arbitration Law has been to place increasing emphasis on separability. Article 19 of the PRC Arbitration Law (2017 Amendment) lists four scenarios of changes to the substantive contract 18, but it does not cover all possible contractual states, which has led to disputes in practice. For example, the question whether a contract is formed is often entangled with whether the arbitration clause is formed, and some views have treated contract formation as determinative of arbitration clause formation. The New Arbitration Law clearly provides that whether the contract is formed, becomes effective, or is revoked does not affect the validity of an arbitration agreement that has been concluded, thereby further strengthening separability and providing clearer adjudicative rules for determining the validity of arbitration agreements.

By establishing separability, this legislative direction provides an important precondition for the tribunal’s exercise of jurisdiction. It ensures that the arbitration agreement will not be easily negated by association with the fate of the main contract, thereby “locking in” the arbitral process and preventing parties from using substantive defenses in contract disputes to overturn the procedural choice of arbitration. The separability principle expressly set out in Article 22 mirrors the New Arbitration Law, allowing parties to commence arbitration earlier without waiting for resolution of disputes over the contract’s validity, thus improving dispute-resolution efficiency.

V. Commentary on Article 22 paragraph 3: Time Limits and Procedural Requirements for Raising Jurisdictional Objections

Article 22 paragraph 3 specifies the time limits, form, and procedural effects for raising objections to arbitral jurisdiction, and can be seen as a provision that refines the procedure for making such objections.

1. Ultimate Deadline: Raising the Objection in the Statement of Defence

This paragraph first provides that any objection to arbitral jurisdiction must be raised no later than in the Statement of Defence. This means that the respondent should generally, when submitting a response to the arbitration notice for the first time after receiving the arbitration application, raise together its reasons for objecting to the validity of the arbitration agreement or the jurisdiction of the institution/tribunal. The choice of the Statement of Defence as the cutoff point is that the defense marks the formal entry of the respondent into the stage of positive response to the substantive issues of the case, and there has been sufficient time to consider and raise procedural objections as well as substantive responses. (Article 5 of the Rules provides for the procedure of “response to the arbitration notice”, which is the beginning the respondent to respond to substantive issues of the case, including jurisdictional issues. For details, please refer to the analysis of Article 5 of the Rules) In international practice, this timing aligns with the approach adopted by most arbitral institution rules.19 The New Arbitration Law provides for raising objections “before the first hearing”, which largely overlaps in time with the submission of the defence. Thus, both international rules and Chinese law require jurisdictional objections to be raised at an early stage before the case proceeds to substantive hearing, reflecting the principle of timely objection and preventing strategic delay of parties until the later stage of arbitration that wastes arbitral resources.

In practice, the respondent usually evaluates the validity and scope of the arbitration agreement after receiving the arbitration notice and arbitration application (Article 19 of the Rules). If it is believed that there is no valid arbitration agreement or the dispute is not within the scope of the agreement, an objection will be explicitly raised when submitting a response to the arbitration notice/statement of defense. This is not only necessary for the parties to exercise their right of defense, but also an important measure to preserve their own rights in the arbitration procedure and avoid being regarded as accepting arbitration (corresponding to the "Waiver of Right to Object" clause in Article 3 of these Rules). On the contrary, if the deadline is not met, it may be presumed that the parties have accepted arbitration jurisdiction.

2.Timely objections to matters beyond jurisdiction

This paragraph further stipulates that any objection to the arbitral tribunal exceeding its jurisdiction (such as exceeding the factual scope of the arbitration request - the parties request compensation for specific losses, but the arbitral tribunal rules on other facts not claimed or expands the scope of factual determination) shall be raised in writing within 14 days after the occurrence of the exceeding facts. This rule specifically sets a fixed deadline of 14 days, which has the advantage of operability, giving the parties a clear time frame to urge them to take action as soon as possible, while also preventing them from indefinitely delaying under the guise of "still under consideration".

3.Delay in written form and justifiable reasons

Regarding the form of objection, this paragraph requires it to be raised "in writing". This requirement corresponds to the "objection in writing" in Article 3 "Waiver of Right to Object" of the Rules, which reflects the seriousness of the procedure. Written submission is beneficial for fixing the content of objections, avoiding ambiguity caused by verbal objections, and providing clear basis for arbitration tribunals and institutions.

In the case where an objection is not raised within the prescribed time limit, this paragraph provides a certain degree of "tolerance": where a party raises an objection to the jurisdiction beyond the aforesaid time limit, the arbitral tribunal may accept the objection if the delay is justified. This reflects respect for the parties' right to raise objections to the arbitration basis, namely jurisdiction. The so-called “if the delay is justified” usually refer to missing the deadline or having reasonable objective reasons that are not due to the fault of the parties involved. For example, if the parties are unable to submit objections in a timely manner due to force majeure (such as sudden major accidents) during the defense period, or if they fail to discover any unauthorized matters due to the concealment of information by relevant parties within the 14 day period. In this case, the arbitral tribunal has the discretion to accept late objections instead of mechanically rejecting them outright. This not only avoids the harshness of the parties losing their rights due to minor delays, but also prevents intentional delays - as whether to accept objections beyond the deadline is in the hands of the arbitral tribunal. Once the arbitral tribunal finds that the reasons are insufficient, it may reject the delayed objection claims based on this, ensuring that the procedure is not abused.

4.The impact of raising objections on the arbitration process and the selection of arbitrators

The fact that the parties have already selected or participated in the selection of arbitrators does not prevent them from raising objections to jurisdiction. In many cases, the respondent needs to select their own arbitrator or participate in the selection of the presiding arbitrator within a specified period according to the rules before defending after receiving the arbitration notice/acceptance notice issued by the arbitration institution. If they have doubts about the validity of the arbitration agreement at this time, they may worry: Am I cooperating with the selection of arbitrators now equivalent to recognizing the validity of the arbitration agreement and not being able to object in the future? This paragraph explicitly eliminates this concern - the parties' fulfillment of the procedural obligation to appoint arbitrators does not constitute a waiver of the right to object. This is in line with the common international process of "retaining objections while advancing procedures" and is also a reasonable protection of the procedural rights of the parties involved. In addition, it is unrealistic to require the parties to postpone the formation of the arbitral tribunal while their objections are still pending: arbitration requires the timely establishment of the arbitral tribunal to advance the proceedings, while objections may have to wait for the arbitral tribunal or institution to hear before a decision can be made. If the arbitrator is not selected, the procedure will be deadlocked. Therefore, the usual practice is to first form an arbitration tribunal and then have the tribunal decide whether it has jurisdiction. Once arbitral tribunal is formed, the ruling on objections also has more procedural authority. At the same time, the act of appointing an arbitrator by the parties only indicates their compliance with the procedure and does not mean that they have abandoned their position of questioning the arbitration agreement. This provision confirms this point from a regulatory perspective, enabling the parties to strike a balance between procedural participation and rights preservation.

5.Connection with the "Waiver of Right to Object" clause

It should be pointed out that the " Waiver of Right to Object" system provided for in Article 3 of the rules is complementary to this paragraph in terms of content: the third paragraph of Article 22 clarifies the final point and requirements for raising jurisdictional objections, while Article 3 stipulates the legal consequences of not raising objections within the deadline (loss of objection rights). In short, this paragraph informs the parties of "when and how to raise" jurisdictional objections, while Article 3 informs the parties of "what consequences will be borne if not raised". The two together form a complete mechanism from reminder to punishment: if the parties raise objections in accordance with regulations as scheduled, the arbitral tribunal will review and make a ruling; If the parties are negligent in exercising their prior rights, they will lose the opportunity for later relief. This arrangement is common in international arbitration practice and is also aimed at urging the parties to exercise their procedural rights in good faith.

In summary, paragraph 3 provides specific provisions on the time, form, and procedural effectiveness of objections, delineating clear boundaries for parties to exercise their jurisdictional objection rights: it strictly requires timely exercise and also provides flexibility within a reasonable range. This design can effectively prevent parties from raising objections in a "surprise attack" manner afterwards, while ensuring that disputes over jurisdiction that are truly justified receive attention and judgment from the arbitral tribunal, thereby maintaining procedural fairness.

VI. Commentary on Article 22 paragraph 4: How the Arbitral Tribunal Rules on Jurisdictional Objections

This paragraph grants the arbitral tribunal procedural discretion in handling jurisdictional objections: the tribunal may either decide the objection as a preliminary question, or address it together with the merits in the final award. The provision reflects respect for the tribunal’s procedural leadership and a concern for procedural efficiency.

Early Ruling vs. Final Award: The Tribunal’s Discretion: A decision rendered “as a preliminary question” means that the tribunal, before (or during) consideration of the merits, issues a specific determination on the jurisdictional objection. This is typically made in the form of a procedural order or a partial award, confirming whether the tribunal has jurisdiction. The advantage is: if the tribunal finds it lacks jurisdiction, the arbitration can be terminated immediately, avoiding wasted time and costs on merits proceedings; if it finds it has jurisdiction, procedural uncertainty is removed and the merits phase can proceed on a stable footing. Where the objection turns on a purely legal issue or the facts are relatively clear, tribunals often prefer an early ruling to clarify the path of the arbitration as soon as possible.

Deciding the objection “in the final award” means that the tribunal defers the jurisdictional issue and addresses it together with the substantive dispute at the conclusion of the case. This approach is typically adopted where the jurisdictional objection is closely intertwined with the merits. For example, disputes over the scope of an arbitration agreement may depend on substantive interpretation of contractual terms, which in turn may be closely connected with merits issues (such as whether and how the contract was performed). In such circumstances, the tribunal may consider that it can only reach an accurate jurisdictional determination after hearing the full evidentiary record on the merits, making consolidated treatment in the award more prudent. In addition, where the tribunal’s preliminary view is that the objection is not clearly persuasive, and where separating the proceedings would risk delay, the tribunal may choose not to issue a standalone ruling but instead respond to the objection in the final award.

The Rules expressly leave this choice to the tribunal’s judgment. In deciding which approach to adopt, the tribunal may consider, for example: (1) Clarity of the objection — where the objection concerns a purely legal question and the outcome is relatively clear, an early ruling may be appropriate; (2) Time and cost — an early ruling may require dedicated procedure or even a hearing and thus increase costs, but if it prevents an ultimately ineffective proceeding it may be cost-saving in the longer run; (3) Parties’ views — tribunals may hear the parties’ submissions on procedural arrangements; where both parties wish to have jurisdiction determined promptly, the tribunal may prioritize the objection.

In sum, paragraph 4, by conferring procedural discretion on the tribunal, balances efficiency and fairness. Where the jurisdictional objection is significant and clear, a timely ruling helps avoid unnecessary procedural expenditure; where the objection is factually interwoven with the merits or is not straightforward, addressing it in the final award may better ensure that all issues are resolved in one integrated decision. This flexible design enables the tribunal to tailor the process to the specifics of the case—avoiding waste while ensuring that parties’ procedural rights receive a meaningful response.

VII. Conclusion

1. Establishing two “cornerstone” principles to safeguard arbitral autonomy: By incorporating the principles of “Competence-Competence” and separability of the arbitration agreement, the Rules lay a solid foundation for smooth arbitral proceedings and underscore respect for arbitral autonomy.

2. Emphasizing timely objections to balance efficiency and rights: The Rules adopt a structure combining strict time limits with flexible exceptions. Strict deadlines deter dilatory tactics, while exceptions for justified delay and the assurance that participation in arbitrator appointment does not prejudice the right to object prevent rigid procedure from undermining legitimate rights.

3. Improving procedural linkage to prevent abuse while preserving rights: Article 22 working in close coordination with Article 3 on Waiver of Right to Object, these provisions form a complete chain of rules. They encourage parties to raise objections early and in good faith, while requiring tribunals to treat timely objections with due seriousness.

4. Empowering the tribunal to manage procedure and enhancing efficiency: By allowing the tribunal to decide how best to dispose of jurisdictional objections in light of the case, the Rules increase flexibility in procedural management and improve overall efficiency.

5. Aligned with international standards and adaptable to local laws: The design of the articles is deeply influenced by advanced international rules and has a high degree of international compatibility. At the same time, the content also considers the connection with Chinese arbitration practice and is consistent with the requirements of the New Arbitration Law.