TITLE:
Kompetenz-Kompetenz: An Arbitral Tribunal Authority to Decide Its Jurisdiction
AUTHORS:
Hassan Francis Whitfield
KEYWORDS:
Tribunal, Authority, Jurisdiction, Arbitration Agreement, Autonomy
JOURNAL NAME:
Beijing Law Review,
Vol.14 No.4,
December
7,
2023
ABSTRACT: The authority of an arbitral tribunal to establish its own jurisdiction is discussed in this article. Under the Kompetenz-Kompetenz (competence-competence) principle, a tribunal’s decision about its jurisdiction must be made within its own purview, at least in the initial stage. The principle permits a tribunal to define its authority’s scope and determine its jurisdiction. As it encourages party autonomy, this is one of the fundamental principles of arbitration. The significance of this tribunal power is that it corrects any excesses or inadequacies in jurisdiction by providing a prompt remedy to a party objecting, saving both money and time. The drawback of this power is that if an opposing party is not pleased with the processes, he may still be able to go back to court under the English Arbitration Act and the Model Law. Time, though, is of the essence. The article is supported by a body of secondary, current, and case law literature. It recognizes that parties to an arbitration agreement have the autonomy to decide whether to subject the arbitration procedures to arbitration rules. As a result, the UNCITRAL Rules of Arbitration and the ICC Rules of Arbitration are used as model rules in this article. The ability of an arbitral tribunal to decide on its jurisdiction is distinctive in that it tests that panel’s authority. It is undoubtedly a unique power because it contributes to determining the scope of a tribunal’s authority and thus acts as its own judge when called upon. This authority is crucial because it allows the arbitration processes to proceed according to plan.