Eugene THONG Kompetenz-Kompetenz 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. Kompetenz-kompetenz is recognised by the main international arbitration conventions and institutional rules, as well as most national arbitration laws, such as: 1961 European Convention on International Commercial Arbitration, Art. V(3); 1998 ICC Arbitration Rules, Art. 6(2); UNCITRAL Arbitration Rules (as revised in 2010), Art. 23(1); 2009 AAA International Arbitration Rules, Art. 15(1); 1998 LCIA Arbitration Rules, Art. 23.1; 1985 UNCITRAL Model Law on International Commercial Arbitration, Art. 16(1); 1996 English Arbitration Act, section 30(1); Art. 1465 of France’s new Code of Civil Procedure, as amended in 2011; German Code of Civil Procedure (Zivilprozessordnung), section 1040; 1987 Swiss Law on Private International Law, Art. 186(1). 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 (I) its origin and meaning; (II) its various forms; and (III) the stakes involved. I. Origin and meaning of kompetenz-kompetenz

The term kompetenz-kompetenz comes from the German “Kompetenz-Kompetenz”, which literally means “the jurisdiction of jurisdiction”. French speakers use the term “compétence sur la compétence”, or “compétence-compétence” 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. Nonetheless, Sklenyte attributes its origin to a case in 1955, “when the German Federal Supreme Court held that the public forum request to enforce an arbitration award was not entitled to question the existence of a valid arbitration agreement. The court arrived at this conclusion by presuming the parties entered into not

47-8. This is. without any subsequent review of the decision by any court. the arbitral tribunal has the exclusive authority to rule on its own jurisdiction. but only after the question has been addressed by the tribunal. the arbitral tribunal is authorised to rule on its own jurisdiction. In reality. In either case. it is also possible that the judicial review is permitted only after a final award on the merits has been made by the tribunal. II. pp. the arbitral tribunal is authorised to rule on its own jurisdiction. the procedure in Germany is such that it could fall under both the first and the second models: it allows for broader judicial intervention at the outset as well as 1 Sklenyte. Similarly. Secondly. what this means is that the arbitral tribunal must be the first instance of any challenge to its jurisdiction. in Germany or elsewhere.Eugene THONG one but two arbitration agreements: one with respect to their commercial contract and another regarding a potential dispute about the existence of a valid arbitration agreement. these are only templates. however. the arbitral tribunal is allowed to continue with its proceedings despite challenges to the arbitration agreement specifically. not the case. Yet at the same time. This is subject to judicial review.”1 What makes matters more confusing is that the German legal terminology “KompetenzKompetenz” has a meaning that is different from that of the term kompetenz -kompetenz as it is used in international arbitration. no arbitral tribunal must have been constituted yet. For example. Nonetheless. and judicial review is also possible. However. a French court does have the possibility of questioning arbitral jurisdiction. that which confuses the significance of the term even further. The German “Kompetenz-Kompetenz” would imply that the arbitral tribunal is authorised to make a final ruling on its jurisdiction. and therefore this is subject to little or no judicial review. it has never even been accepted in Germany for the national courts to withhold deciding on the arbitral tribunal’s jurisdiction until the latter has had the occasion to do so itself. the application of kompetenz-kompetenz is more nuanced and therefore the doctrine is less readily grasped. Thirdly. Alternatively. but only under the following two very strict conditions: firstly. but this is subject to concurrent judicial review if one party takes the challenge to the national court. there are four possible variations of it: Firstly. and secondly. Fourthly. the arbitration agreement must be prima facie manifestly inexistent or null—and this latter criterion is supposed to be extremely difficult to fulfil. the third model approaches best the procedure that is used in France. The various forms of kompetenz-kompetenz In fact. . But aside from the confusion generated by linguistics. much of the uncertainty surrounding the doctrine also arises because the national laws of different states approach it in differing ways.

the arbitration must be allowed to run its course. 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. At the same time. this decision is subject to judicial review. This appears to be the overarching structure of the kompetenz-kompetenz doctrine. the efficiency of the arbitral process is prioritised. it is always possible that a challenge to the arbitration agreement is genuine and thus legitimate. validity or scope of the arbitration agreement. 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. and that a party should not be allowed to escape or delay the arbitration proceedings simply by challenging the existence. but at the same time. while allowing nothing to derail the proceedings. III.Eugene THONG during arbitration proceedings. they are allowed to run their full course as a way to ensure overall efficacy. This means that the arbitral tribunal’s jurisdiction should be safeguarded somehow. On the other hand. another argument against the arbitral tribunal’s jurisdiction is the fact that the arbitrators have a financial interest in sustaining their jurisdiction—thus it is unrealistic to expect from them an objective decision on this question. it is rather that the tribunal usually has earlier jurisdiction since we do not want unnecessary judicial intervention to obstruct the arbitration process . including disputes about the arbitration agreement itself. These two opposing concerns are what give the various interpretations of kompetenzkompetenz their shape. Whereas in the German instance. this may avoid long-term inefficiency as well. Having the arbitral tribunal rule on its own jurisdiction is also paradoxical because it basically lacks authority to decide anything unless and until their authority under the arbitration agreement has been established. once initiated. the nature of its decision is ultimately provisional in the sense that generally. It would hence be a mistake to think that the arbitral tribunal has sole jurisdiction under it. legitimacy is given more weight since broader judicial intervention is allowed at the start. once arbitration proceedings are initiated. French law also acknowledges the legitimacy concerns through the “prima facie manifest inexistence or nullity” exception. we can deduce that what are essentially at stake are concerns of efficacy and legitimacy. should the arbitration agreement be discovered to be inexistent or null eventually. On a practical level. In the French case. All the same. Hence. By efficacy I refer to the efficacy of the arbitration process. The stakes in kompetenz-kompetenz Using the above examples of the French and German interpretations of kompetenz-kompetenz. To start with.

dk/portal-asbstudent/files/2372/000126197-126197. 2003. Court Ruling in Argentina v.com/articles/27372_what-is-doctrine-of-competence-competence Fouchard Philippe. “International Arbitration: the Doctrine of Separability and Competence-Competence Principle. BG Group.stblaw.” The Aarhus School of Business.bukisa. “What is Doctrine of Competence-Competence. http://pure. Emmanuel Gaillard. Aiste. George. http://www.Eugene THONG from the start. Section of International Law and Practice.” http://kluwerarbitrationblog.S. Berthold Goldman.org/docs/pub/37-1-bermann-the-gatewayproblem. Kluwer Arbitration Blog. “The Unavoidability of Uncertainty: One Lesson from the Recent U. Robert H.yjil. ‘The “Gateway” Problem in International Commercial Arbitration. the form that kompetenz-kompetenz takes in reality is simply an outcome of how much relative importance a national system places on either concern.cfm?TrackedFile=6B46113B5E8CBB828FBA7101C4A829F1 439B10&TrackedFolder=585C1D235281AED9B6A07D5F9F9478AB5A90188899 . 2003.’ The Yale Journal of International Law (2012). Goldman on International Commercial Arbitration. http://www.” http://www. 1999. Fouchard. Gaillard. Washington.com/google_file. In the end.au..pdf Smit. D. The Hague: Kluwer Law International. John Savage.  Bibliography Bermann.com/blog/2012/01/27/theunavoidability-of-uncertainty-one-lesson-from-the-recent-u-s-court-ruling-in-argentina-v-bggroup/ Sklenyte.C.pdf Bukisa. “Separability and Competence-Competence in International Arbitration: Ex Nihilo Nihil Fit? Or Can Something Indeed Come From Nothing?” Paper presented at the spring meeting for the American Bar Association. May 7-10.

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