KOMPETENZ-KOMPETENZ- THE RIGHT TO DECIDE JURISDICTION: TENSIONS BETWEEN ARBITRATORS AND

COURTS NOTES

 Arbitration is subject to certain limitations

 Arbitration is worthless unless it can be enforced
 Tribunal cannot enforce the award
o Local Court
 Provided that rules/parameters are followed
 i.e. public policy
 Can set it aside
o Foreign courts like New York convention
 Ahmad Baravati v Josephthal, Lyon & Ross Inc (1994)
o Concept of Party Autonomy
 Public policy is hard to define.
o JURISDICTIONAL. Was there a valid arbitral tribunal?
 AN ARBITRATION AGREEMENT IS A SEPARATE CONTRACT WITHIN A CONTRACT.
 English Law is one of the most intrusive with respect to jurisdiction. Others are more deferential.
But always some kind of scrutiny.
 KOMPETENZ-KOMPETENZ = RIGHT TO DECIDE FIRST
o Subject to scrutiny/review of court later.
 In most jurisdictions, there is no finality.
 POSITIVE KOMPETENZ-KOMPETENZ
o Positive right of jurisdiction of arbitrators to decide jurisdictional objections
o Subject to court’s scrutiny thereafter
 NEGATIVE KOMPETENZ-KOMPETENZ
o Who decides first?
o Is there curtailment of court’s jurisdiction at that initial stage?
o National courts should refrain from reviewing in parallel and with same degree of detail
the validity, efficact or enforceability of the arbitration agreement as the arbitral tribunal.
 Astivenca Astrilleros de Venezuala CA v. Oceanlink Offshore (Venezuelan SC)
o Principle of Kompetenz-Kompetenz
 French New Code of Civil Procedure and European Convention on International Commercial
Arbitration of 1961
 Types of jurisdictional objections
o A: Existence of the Arbitration Agreement: No contract to arbitrate at all
 Existential/primal
o B: Validity of the arbitration agreement
 Illegal purpose, contract
 Legal validity/enforceability of existing arbitration agreement
o C: Subject matter of the dispute not arbitrable as a matter of law or public policy
 Criminal matters, matrimonial disputes, validity of wills, taxation disputes, in rem,
certain intellectual property disputes (legal arbitrability)
o D: Effect or scope of the arbitration agreement
  Factual arbitrability
 Interpretation of arbitration clause—is it wide enough or not?
 Willesford v. Watson (1873) LR 8 CH 473
o Arbitration clause – “deconstructed”
 If breach is issue in contract – arbitration agreement is still valid. But if issue is contract is void ab
initio, then arbitration agreement cannot be given effect.
 Case
o Illegality of contract can go to arbitration. Illega\eigxplity of arbitration clause can’t go to
arbitration.
 Doctrine of separability – matter of illegality of contract does not necessitate illegality of
arbitration agreement.
 Common law rule: existence and validity of arbitral tribunal can’t be decided by latter.
 Article 16(1) and 16(2) of UNCITRAL Model Law
o Competence of arbitral tribunal to rule on its jurisdiction
o Question: Was this adopted by PH?
 Rule is different in UK Law bec. they did not adopt UNCITRAL. But they have their own concept of
separability.