The kompetenz-kompetenz doctrine is generally understood as the arbitral tribunal's authority to rule on the scope, validity and existence of the arbitration agreement if any of these are challenged, and thereby to rule essentially also on its own jurisdiction. Although under this doctrine there is no need for the arbitral tribunal to invoke the jurisdiction of a national court, this does not preclude judicial review by the latter either.
The term kompetenz-kompetenz comes from the German Kompetenz-Kompetenz, which literally means the jurisdiction of jurisdiction. French speakers use the term competence sur la compétence, or competence-competence in short, to denote the same concept. According to Fouchard, Gaillard, and Goldman, the origin of the expression has never been very clear. What we can say about it is that it has continental origins, but has now become more or less recognised in common law jurisdictions as well, even if in a state that is not completely clear.
[...] In the end, the form that kompetenz-kompetenz takes in reality is simply an outcome of how much relative importance a national system places on either concern. Bibliography Bermann, George. ‘The “Gateway” Problem in International Commercial Arbitration.' The Yale Journal of International Law (2012). http://www.yjil.org/docs/pub/37-1-bermann-the-gatewayproblem.pdf Bukisa. “What is Doctrine of Competence-Competence.” http://www.bukisa.com/articles/27372_what-is-doctrine-of-competence-competence Fouchard Philippe, Emmanuel Gaillard, Berthold Goldman, John Savage. Fouchard, Gaillard, Goldman on International Commercial Arbitration. The Hague: Kluwer Law International Kluwer Arbitration Blog. “The Unavoidability of Uncertainty: One Lesson from the Recent U.S. [...]
[...] The stakes in kompetenz-kompetenz Using the above examples of the French and German interpretations of kompetenz-kompetenz, we can deduce that what are essentially at stake are concerns of efficacy and legitimacy. By efficacy I refer to the efficacy of the arbitration process. To start with, kompetenz-kompetenz is consistent with the parties' express or implied intent that any and all disputes arising out of their relationship are to be resolved by arbitration, including disputes about the arbitration agreement itself. This means that the arbitral tribunal's jurisdiction should be safeguarded somehow, and that a party should not be allowed to escape or delay the arbitration proceedings simply by challenging the existence, validity or scope of the arbitration agreement. [...]
[...] However, these are only templates. In reality, the application of kompetenz-kompetenz is more nuanced and therefore the doctrine is less readily grasped. For example, the third model approaches best the procedure that is used in France. Yet at the same time, a French court does have the possibility of questioning arbitral jurisdiction, but only under the following two very strict conditions: firstly, no arbitral tribunal must have been constituted yet; and secondly, the arbitration agreement must be prima facie manifestly inexistent or null—and this latter criterion is supposed to be extremely difficult to fulfil. [...]
[...] All the same, once arbitration proceedings are initiated, they are allowed to run their full course as a way to ensure overall efficacy. Conclusion The opposing concerns of efficacy and legitimacy are addressed by the fact that while the arbitral tribunal retains its jurisdiction to rule on its own jurisdiction, the nature of its decision is ultimately provisional in the sense that generally, this decision is subject to judicial review. This appears to be the overarching structure of the kompetenz-kompetenz doctrine. [...]
[...] It should be noted that of all these, Art. 16(1) of the UNCITRAL Model Law appears to provide the most popular articulation of the doctrine: “The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.” Even though the kompetenz-kompetenz doctrine might seem to be straightforward, there is still some confusion and ambiguity surrounding it. Thus, I will explore its origin and meaning; its various forms; and (III) the stakes involved. [...]
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