The prima facie review and the court’s role in Staying legal proceedings in favor of an arbitration agreement?
When a court is asked to stay the legal proceedings and refer the parties to arbitration, the court will conduct a prima facie review on the existence of an arbitration agreement
A court hearing an application for a stay should grant it, deferring the actual determination of the tribunal’s jurisdiction to the tribunal, if the applicant is able to establish a prima facie case that:
| a valid arbitration agreement exists between the parties to the court proceedings; |
| the dispute in the court proceedings falls within the scope of the arbitration agreement; and |
| The arbitration agreement is not: |
| Null and Void: An arbitration agreement will be found to be null and void if one or both parties to it lacks the capacity to enter into such an agreement. |
| incapable of being performed: Where an agreement cannot be performed, no court is going to stay the proceedings and force the plaintiff to rely upon an unworkable agreement. Example: when a party was unable to afford the costs of arbitration. Despite the presence of an arbitration agreement, the party would only be able to pursue its claim before the court with legal aid, and the other party had not been willing to advance the costs of arbitration |
| Inoperative: arbitration agreement that has ceased to have effect by the time the court is asked to stay the legal proceedings This term covers two situations
| a time limit of an arbitration agreement has expired and is, therefore, no longer operative. | 
| the agreement is valid but it cannot be relied upon because it is inapplicable. Example: res judicata Waiver of the right to arbitrate, like when a party has failed to properly invoke the arbitration agreement in a court proceeding, or if it has actively pursued claims before a court that was covered by the arbitration agreement.
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Arbitration Q&A guide simplified by Hesham Elrafei FCIArb
Arbitri 2022
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