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Transcript of Kompetenz-Kompetenz
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Eugene THONG
Kompetenz-Kompetenz
The kompetenz-kompetenz doctrine is generally understood as the arbitral tribunals 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
Frances 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 isstill 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-kompetenzThe term kompetenz-kompetenz comes from the German Kompetenz-Kompetenz, which literally
means the jurisdiction of jurisdiction. French speakers use the term comptence sur la
comptence, or comptence-comptence 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
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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.1
What makes matters more confusing is that the German legal terminology Kompetenz-
Kompetenz has a meaning that is different from that of the term kompetenz -kompetenz as it is used
in international arbitration. The German Kompetenz-Kompetenz would imply that the arbitral
tribunal is authorised to make a final ruling on its jurisdiction, without any subsequent review of the
decision by any court. This is, however, not the case, in Germany or elsewhere.
II. The various forms of kompetenz-kompetenzIn fact, it has never even been accepted in Germany for the national courts to withhold deciding on the
arbitral tribunals jurisdiction until the latter has had the occasion to do so itself, that which confuses
the significance of the term even further. 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.
Nonetheless, there are four possible variations of it: Firstly, the arbitral tribunal is allowed to
continue with its proceedings despite challenges to the arbitration agreement specifically. This is
subject to judicial review. Secondly, the arbitral tribunal is authorised to rule on its own jurisdiction,
but this is subject to concurrent judicial review if one party takes the challenge to the national court.
Thirdly, the arbitral tribunal is authorised to rule on its own jurisdiction, and judicial review is also
possible, but only after the question has been addressed by the tribunal. Alternatively, it is also
possible that the judicial review is permitted only after a final award on the merits has been made by
the tribunal. In either case, what this means is that the arbitral tribunal must be the first instance of any
challenge to its jurisdiction. Fourthly, the arbitral tribunal has the exclusive authority to rule on its
own jurisdiction, and therefore this is subject to little or no judicial review.
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 nulland this latter criterion is supposed to be
extremely difficult to fulfil. Similarly, 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
1Sklenyte, pp. 47-8.
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during arbitration proceedings, but at the same time, once initiated, the arbitration must be allowed to
run its course.
III. The stakes in kompetenz-kompetenzUsing 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 tribunals 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.
On the other hand, it is always possible that a challenge to the arbitration agreement is
genuine and thus legitimate. 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. On a practical level, another argument against
the arbitral tribunals jurisdiction is the fact that the arbitrators have a financial interest in sustaining
their jurisdictionthus it is unrealistic to expect from them an objective decision on this question.
These two opposing concerns are what give the various interpretations of kompetenz-
kompetenz their shape. In the French case, the efficiency of the arbitral process is prioritised. Hence,
while allowing nothing to derail the proceedings, French law also acknowledges the legitimacy
concerns through the prima facie manifest inexistence or nullity exception. Whereas in the German
instance, legitimacy is given more weight since broader judicial intervention is allowed at the start. At
the same time, this may avoid long-term inefficiency as well, should the arbitration agreement be
discovered to be inexistent or null eventually. 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 would hence be a mistake to think
that the arbitral tribunal has sole jurisdiction under it; it is rather that the tribunal usually has earlier
jurisdiction since we do not want unnecessary judicial intervention to obstruct the arbitration process
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from the start. 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.
BibliographyBermann, 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-gateway-
problem.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, 1999.
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unavoidability-of-uncertainty-one-lesson-from-the-recent-u-s-court-ruling-in-argentina-v-bg-
group/
Sklenyte, Aiste. International Arbitration: the Doctrine of Separability and Competence-Competence
Principle. The Aarhus School of Business, 2003. http://pure.au.dk/portal-asb-
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Smit, Robert H. Separability and Competence-Competence in International Arbitration: Ex Nihilo
Nihil Fit? Or Can Something Indeed Come FromNothing? Paper presented at the spring meeting
for the American Bar Association, Section of International Law and Practice, Washington, D.C.,
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http://www.stblaw.com/google_file.cfm?TrackedFile=6B46113B5E8CBB828FBA7101C4A829F1
439B10&TrackedFolder=585C1D235281AED9B6A07D5F9F9478AB5A90188899