Doctrine of Competence-competence of International Commercial Arbitration

Christian Herrera Petrus, “Spanish Perspectives on the Doctrines of Kompetenz-Kompetenz- and Separability: A Comparative Analysis of Spain’s 1988 Arbitration Act, American Rev. of Int’l Arbitration, vol. 11 (2000), pp. 397, 402 noted “that there is distinction in European arbitration law between minimalist approach to competence-competence, where arbitrators may rule on their own jurisdiction, but party may also apply to court for ruling, and more restrictive forms of competence-competence, where arbitrators must rule first on their jurisdiction, and court review of jurisdiction issues may only be obtained thereafter”.

” The UNCITRAL Model Law, for example, contemplates that, if an arbitral tribunal makes an initial determination on a plea that the tribunal does not have jurisdiction, any party may (within 30 days of receiving notice of the tribunal’s ruling) request that an appropriate court review the matter. See UNCITRAL Model Law on International Commercial Arbitration, art. 16(3). While a request for judicial review is pending, however, “the arbitral tribunal may continue the arbitral proceedings and make an award.”

The likelihood of corrupt or biased arbitrators that asserts jurisdiction to resolve disputes involving parties over whom they clearly have no authority is enough to prove the point. Many other “undesirable things” are possible. At least some possibility of court review to prevent such things to occur is important. Park, supra n. 32, at n.9 “An agreement giving arbitrators sole competence to rule on their own jurisdiction would make sense principally (perhaps only) when contained in a subsequent contract that provided for arbitration of a dispute about jurisdiction that had arisen under a pre-existing arbitration agreement.”

Thomas E. Carbonneau, “Beyond Trilogies: A New Bill of Rights and Law Practice Through the Contract of Arbitration,” American Rev. of Int’l Arbitration, vol. 6 (1995), p. I First Options “amounts to an adoption of the kompetenz–kompetenz- doctrine on an ad hoc, contractual basis”.

Park, supra n. 88, at 199 “Judges get involved in determining the contours of arbitrator jurisdiction for the simple reason that the arbitral process exists in the shadow of public coercion. Directly and indirectly the state lends its power to enforce the agreement to arbitrate. Court proceedings are stayed; arbitral awards are given res judicata effect; and the loser’s assets may be seized. The integrity of the judicial system that enforces the arbitral process will, of necessity, require courts to examine arbitrator jurisdiction independently of the arbitrator’s own ruling on their jurisdiction.”