jurisdiction of arbitral

Tribunal
A. Competence to rule on own jurisdiction
B. Power to order interim measures and preliminary
orders
 Article 16 (1) principles

Kompetenz-Kompetenz
- that the arbitral tribunal may independently rule on the
question of whether it has jurisdiction, including any objections
with respect to the existence or validity of the arbitration
agreement, without having to resort to a court.

Separability
- means that an arbitration clause shall be treated as an
agreement independent of the other terms of the contract.
As a consequence.....

A decision by the arbitral tribunal

that the contract is null and void
shall not entail ipso jure the
invalidity of the arbitration clause.

Art. 16(2) - Any objections relating to the arbitrators’

jurisdiction be made at the earliest possible time .
Where the arbitral tribunal rules as a preliminary
question

Art. 16 (3) - allows three (3) procedural safeguards to

reduce the risk and effect of dilatory tactics:

✴ short time-period for resort to court (30 days);

✴ court decision not appealable and;
✴ discretion of the arbitral tribunal to continue the
proceedings and make an award while the matter is
pending before the court.
 Chapter IV A on interim measures and preliminary
orders

Section 1. Section 2 . Section 3.

- provides a generic - deals with the - sets out rules

definition of interim application for, and applicable to both
measures and sets out conditions for granting preliminary orders
the conditions for of, preliminary orders. and interim measures
granting such
measures.
 Section 4.
- is the establishment of a regime
for the recognition and
enforcement of interim measures,
which was modelled, as
appropriate, on the regime for the
recognition and enforcement of
arbitral awards under art.s. 35 &
36 of the Model Law.
Section 5.
- includes art 17 J
- provides that “ a court shall have
the same power of issuing an
interi measure in reation to
arbitration proceedings
irrespective of whether their place
is in the territory of the enacting
State, as it has in relation to
proceedings in court”.
 Preliminary orders
Provide a means for preserving the status quo
until the arbitral tribunal issues an interim measure
adopting or modifying the preliminary order.

Article 17 B (1)
Provides that “ a party may, without notice to any other party,
make a request for an interim measure together with an
application for a preliminary rder directing a party not to frustrate
the purpose of the interi measure requested”.
Article 17 B (2)
permits and arbitral tribunal to grant a preliminary order if “it
considers that prior disclosure of the request for the interim
measure to the party against whom it is directed risks frustrating
the purpose of the measure”.

Article 17 C
contains carefully drafted safeguards for the party against
whom the preliminary order is directed, such as prompt
notification of the application for the preliminary order and of the
preliminary order itself (if any), and and opportunity for that
party to present its case “at the earliest possible of time”.
In any event...

A preliminary order has a maximum duration of

twenty (20) days and, while binding on the
parties, is not subject to court enforcement and
does not constitute an award.