An explanation of what the principle of Kompetenz-Kompetenz is in international commercial arbitration
What is meant by Kompetenz-Kompetenz in arbitration?
The doctrine of Kompetenz-Kompetenz allows an arbitral tribunal to determine its own jurisdiction to arbitrate over a dispute (Blackaby, 2015). This doctrine has two effects- a positive and a negative effect. The positive effect provides that the courts should not rule on the jurisdiction (competence) of arbitrators, before the arbitrators themselves have had the opportunity to determine such jurisdiction (Gaillard, 2008). The negative effect of Kompetenz-Kompetenz, on the other hand, provides that the arbitral tribunal must determine jurisdiction first, with any interference by the court limited to a ‘subsequent review’ (Kawharu, 2008: 243) of the tribunal’s decision, making this an effect of a ‘chronological priority’ (Fouchard, 1999:401).
The negative effect of this doctrine originates in France (French Civil Code 2011), and it is the most discussed one by legal writers and is considered to be controversial but also progressive (Gaillard, 2008). Controversial, because it can prevent the courts from carrying out a full merits’ assessment of each case and the validity of the arbitration agreement, while the tribunals have the opportunity to assert their own jurisdiction, at a detrimental effect to such legitimate considerations. Nonetheless, the negative effect promotes arbitration, though a balance has to be struck between ‘protecting arbitration from obstruction and preserving legitimate disputes over arbitrator jurisdiction’ (Barcello, 2003: 1122).
Blackaby N, Partasides C, Redfern A and Hunter M, (2015). Redfern and Hunter on International Arbitration: Student Version. Sixth Edition, Oxford: Oxford University Press
Barcello III J, (2003) Who Decides the Arbitrator’s Jurisdiction? Separability and KK in Transnational Perspective. 1115-1136 Cornell Law Faculty Publications Paper 508, available at http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1293&context=facpub accessed 29/2/2016
E Gaillard and D Di Pietro, Negative Effect of Competence-Competence: The Rule of Priority in Favor of the Arbitrators (Enforcement of AAs and International Arbitral Awards: The New York Convention in Practice, Cameron May 2008)
Kawharu A. (2008). Arbitral Jurisdiction. New Zealand Universities Law Review 23 238-264
Fouchard P, Gaillard E, Goldman B and Savage J. (1999), Fouchard Gaillard and Goldman on International Commercial Arbitration. Kluwer Law International
Article 1448(1), French New Code of Civil Procedure 2011