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.
[...] 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. [...]
[...] 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. “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. Unavoidability of Uncertainty: One Lesson from the Recent U.S. [...]
[...] Origin and meaning of kompetenz-kompetenz The term kompetenz-kompetenz comes from the German “Kompetenz-Kompetenz”, which literally means 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. [...]
[...] Court Ruling in Argentina v. BG Group.” http://kluwerarbitrationblog.com/blog/2012/01/27/theunavoidability-of-uncertainty-one-lesson-from-the-recent-u-s-court-ruling-in-argentina-v-bggroup/ Sklenyte, Aiste. “International Arbitration: the Doctrine of Separability and Competence-Competence Principle.” The Aarhus School of Business http://pure.au.dk/portal-asbstudent/files/2372/000126197-126197.pdf Smit, Robert H. “Separability and Competence-Competence in International Arbitration: Ex Nihilo Nihil Fit? [...]
[...] 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. [...]
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