SCC Practice Note: Prima Facie Jurisdiction between 2013–2023
The SCC Arbitration Institute publishes a new practice note focusing on the decisions on prima facie jurisdiction issued by the SCC between 2013 and 2023. In the practice note, the SCC’s stance in relation to its prima facie jurisdiction is discussed, and the cases where the SCC found it manifestly lacked jurisdiction are presented. The practice note is written by Adam Runestam, intern at the SCC during January to March 2023 and associate at Hammarskiöld.
For parties to make use of arbitration as an alternative means of dispute resolution, the dispute at hand must (a) be arbitrable and (b) the parties must have entered into a valid agreement stating that the dispute must be settled by arbitration. In short, the determination of whether these criteria are met is a question of jurisdiction. In arbitrations administered by the SCC, the SCC is empowered to determine whether it has prima facie jurisdiction over those disputes.
In this practice note, the SCC provides insight into its practice in determining its prima facie jurisdiction. The key findings are that between 2013 and 2023, the SCC determined its prima facie jurisdiction in a total of 269 cases. Only eleven cases were dismissed for manifest lack of jurisdiction. This confirms the SCC’s pro-arbitration stance.
Before the SCC will dismiss a case on jurisdictional grounds, there must be a manifest lack of jurisdiction on the SCC’s part. The cases where the SCC has determined that this high threshold has been met can be split into four categories: (i) where the arbitration agreement calls for ad hoc arbitration, (ii) where the arbitration agreement refers to the institutional rules of another arbitration institute, (iii) where arbitration has been initiated against a party that is not a party to the arbitration agreement, or (iv) where the parties have not entered into an arbitration agreement.
Maintaining a high threshold for the SCC to dismiss a dispute referred to it prioritises effectiveness in the administration of arbitrations and reduces the risk of filibustering.