In Broda Agro Trade (Cyprus) Limited v Alfred C Toepfer International GmbH [2009] EWHC 3318 (Comm), Teare J held that a party who makes submissions to a tribunal on the merits of the substantive claims has taken part in the arbitration for the purposes of section 72 of the Arbitration Act 1996. Section 72 entitles a party "who takes no part" in arbitral proceedings to challenge the tribunal's jurisdiction by proceedings in court "for a declaration or injunction or other appropriate relief".

The defendant (Toepfer) commenced GAFTA arbitration against the applicant (Broda). Broda indicated that it did not accept that the tribunal had jurisdiction, but also made submissions to the tribunal which addressed the merits of Toepfer's claims. The tribunal ruled that it had jurisdiction, and awarded Toepfer damages. When Toepfer applied to enforce that award, Broda applied under section 72 for a declaration that the tribunal lacked jurisdiction.

Teare J held that Broda's correspondence with the tribunal in relation to jurisdiction did not amount to "taking part" for the purposes of section 72: it was well established that a party could inform the tribunal of its view that the tribunal lacked jurisdiction without bringing itself outside section 72, although actually making submissions on the jurisdictional issue would amount to taking part within section 72. However, "taking part" for these purposes was not limited to taking part for the purposes of challenging jurisdiction. Any taking part which related to the merits of the substantive claims would also preclude an applicant from relying on section 72. On the facts, Broda had, by making submissions on the merits of the claims, taken part in the arbitral proceedings.

Teare J's interpretation of section 72 is in line with the analysis in Mustill and Boyd's Commercial Arbitration: 2001 Companion Volume. Parties who wish to challenge the tribunal's jurisdiction should take care that their correspondence with the tribunal and the other parties does not stray into submissions on the merits of the substantive claims.