Challenging the substantive jurisdiction of an arbitral tribunal falls under the category of challenging an award. It involves discussions on the foundations of the competence-competence doctrine, which provides for an arbitral tribunal to rule on its own jurisdiction. Grounds of challenge to substantive jurisdiction emanate from the ‘consent principle’, which restrains the ‘tribunal’s authority and powers’. A tribunal’s ruling on its own jurisdiction, or making of an award in the absence of consent—in light of an arbitration agreement—would allow for raising such a challenge. Section 67 of the English Arbitration Act 1996 (hereinafter ‘AA 1996’) provides that a challenge to an arbitral award may pertain to its substantive jurisdiction. Alternatively, a declaration may be sought from the court to declare an award made by an arbitral tribunal on the merits to be of no effect—wholly or partially—owing to the tribunal’s lack of substantive jurisdiction. It is important to note that section 67 is a mandatory provision. The implication is that parties cannot contract out of the said provision.

A creditor bringing an action will want interest too. Interest compensates for late payment. For the last 200 years, relief came from statutes. The common law did not recognize a right to pre-judgment interest. That position was relaxed in Sempra Metals v IRC [2008] 1 AC 561. Interest on debts and other claims for breach of contract were legitimised. Plaintiffs can now present claims for compound interest at common law, whereas statutory interest is always simple. Where the interval between cause of action and judgment is long and the sum is large, this is a superior option. In a recent Privy Council decision (Sagicor Bank Jamaica v YP Seaton[2022] UKPC 48), interest calculated on a compound basis was roughly 52 times greater than simple, and roughly 368 times the principal sum.