Doctrine of Competence
Doctrine of Competence-competence
The proper allocation of responsibilities between courts and arbitral tribunals for resolving disputes concerning arbitral jurisdiction – disputes about whether the plaintiff’s claim ought to be decided by an arbitral tribunal or a court – has been one of the most complex and controversial question of modern arbitration law. Although there is broad agreement on one general proposition that arbitrators are empowered to rule on their own jurisdiction and then proceed to settle the substantive dispute (UNCITRAL Model Law 16(1), French Code Art 1466, English Arbitration Act 1996, S 30(1), Swiss PIL Art 186(1)) – decades of debates failed to produce a genuine consensus among commentators, courts and policy-makers.
The doctrine of competence-competence recognises the jurisdiction of the arbitral tribunal to rule on its own jurisdiction. It holds that the arbitrators have jurisdiction to decide challenges to their own jurisdiction, to decide challenges to arbitration agreements on which their own authority to resolve the parties’disputes is based. National court must enforce arbitration agreement and awards, it will do so only if the arbitral tribunal has jurisdiction. The power of arbitral tribunal to decide upon its own jurisdiction is an ‘inhenrent’ power.
Under the civil law system generally accepted that the arbitral tribunal has its own jurisdiction, and as per J Paulson in the absence of any irregularities, the courts are usually not likely to interfere with the arbitral tribunal’s ruling on jurisdiction. However this is not the case in common-law countries, the courts insist that they should have the final say on whether the arbitral tribunal has jurisdiction. As per Lord Justice Saville the questions of the jurisdiction cannot be left to the tribunal itself.
When deciding if whether the arbitral tribunal is empowered to rule on its own jurisdiction, the judge should look into the contract between the parties. Firstly is
The proper allocation of responsibilities between courts and arbitral tribunals for resolving disputes concerning arbitral jurisdiction – disputes about whether the plaintiff’s claim ought to be decided by an arbitral tribunal or a court – has been one of the most complex and controversial question of modern arbitration law. Although there is broad agreement on one general proposition that arbitrators are empowered to rule on their own jurisdiction and then proceed to settle the substantive dispute (UNCITRAL Model Law 16(1), French Code Art 1466, English Arbitration Act 1996, S 30(1), Swiss PIL Art 186(1)) – decades of debates failed to produce a genuine consensus among commentators, courts and policy-makers.
The doctrine of competence-competence recognises the jurisdiction of the arbitral tribunal to rule on its own jurisdiction. It holds that the arbitrators have jurisdiction to decide challenges to their own jurisdiction, to decide challenges to arbitration agreements on which their own authority to resolve the parties’disputes is based. National court must enforce arbitration agreement and awards, it will do so only if the arbitral tribunal has jurisdiction. The power of arbitral tribunal to decide upon its own jurisdiction is an ‘inhenrent’ power.
Under the civil law system generally accepted that the arbitral tribunal has its own jurisdiction, and as per J Paulson in the absence of any irregularities, the courts are usually not likely to interfere with the arbitral tribunal’s ruling on jurisdiction. However this is not the case in common-law countries, the courts insist that they should have the final say on whether the arbitral tribunal has jurisdiction. As per Lord Justice Saville the questions of the jurisdiction cannot be left to the tribunal itself.
When deciding if whether the arbitral tribunal is empowered to rule on its own jurisdiction, the judge should look into the contract between the parties. Firstly is