Who Decides the Arbitrator’s Jurisdiction in International Commercial Arbitration: The Competence-Competence Doctrine From a Transnational Perspective

Av. / Atty. Lütfi Göktaş LL.M.

ABSTRACT

The contractual character of international arbitration raises questions regarding jurisdiction of the arbitral tribunal. Although arbitration is a consensual process, the issue of who decides the arbitrator’s jurisdiction is problematic because the arbitral proceedings cannot be deemed as being entirely separate from the court in the seat of the arbitration. As leading conventions, the UNCITRAL Model Law and the New York Convention provides multinational parties with a dispute resolution mechanism that enables them to have their disputes resolved by a neutral adjudication in order not to be affected by diminutions of national courts and to have easily enforceable judgments.

To understand the authorization of arbitrators, the competence-competence doctrine must be scrutinized. Whereas the positive effect of the doctrine is widely recognized, the Model Law and the NYC are not clear on the negative effect, and different countries adopt different approaches regarding the negative effect of the competence-competence doctrine, which is concerned with who decides the arbitrator’s jurisdiction when a party objects to the validity or scope of the arbitration agreement. Some apply the prima facie approach, which places greater value on the parties’ interest for the purpose of preventing dilatory tactics and providing cost-efficiency. Others take a more interventionist and presumptive approach, which seeks to affirm the parties’ intention at all stages in order to minimize the risk that parties who never agreed to arbitration are forced to participate. This dissertation offers a comparative analysis of jurisdictional approaches to granting priority to the arbitral tribunal to rule on its own jurisdiction.

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