ARBITRATION

The Doctrine of Kompetenz-Kompetenz and Separability

The Doctrine of Kompetenz-Kompetenz and Separability

Introduction

The arbitration agreement is an agreement by which the parties agree to arbitration. It is the arbitration clause, if formulated for a possible future dispute and compromise, when it relates to an existing dispute. From the standpoint of terminology, the word compromise, which means an arbitration agreement, is beneficial for both the arbitration clause as a compromise. The arbitration agreement contract subjects to the terms of the contracts. Parties to a contract containing an arbitration clause sometimes confronted with the dilemma of seeking to enforce or resist the enforcement of an arbitration clause. It is where the main contract is unenforceable for one reason of the other. The possibility of arbitral tribunals to decide on their own competence is a characteristic feature of the adjudicative process. It is in contrast to the traditional concept of multiple instances known in the court of law. It is where the problems of jurisdiction resolved through procedures. However, in the case of arbitration the solution is different.

Discussion

Enforcement of the Arbitration Agreement by the English Courts

The English Court of Appeal has decided that the court ordered injunctions in support of arbitration remained available despite Turner v Grovit. In Through Mutual Association Insurance Association Limited v New India Assurance Co Limited, it held that Turner v Grovit did not preclude a restraining English injunction in support of an English arbitration clause, even if the addresses of the order initiated a lawsuit in the courts of a state party to the Convention. It shows that it is important to amend Art 1(4) in order to coordinate and harmonies court decision in arbitration matters within the European judicial area. It recognizes that is not an easy task and that it implies new provisions that need to be carefully studies and drafted.

The English courts apparently have not yet had to decide cases involving arbitration agreements that stood in conflict with COGSA 1971. A jurisdiction agreement, did not distinguish between jurisdiction and arbitration agreements, the principles that formulate the decision arguably apply to arbitration agreements, as well. Thus, arbitration agreements that lead to the evasion of the liability standards stipulated by COGSA 1971 will not be enforced; the place chosen for the arbitration is irrelevant except for its effect on the substantive law to be applied in the arbitration.

Kompetenz-Kompetenz Doctrine

A competence-competence doctrine is an arbitration agreement that allows taking decisions whether or not it has jurisdiction over an issue that required to settle down, also if the agreement is valid. According to the competence-competence agreement, the expiry or validity of an agreement involves a clause of arbitration does not necessarily means that the agreement has either expired or is invalid.

The Model Law Art 16(1), like ZPO, Art 1040 (1), recognizes both the principle of competence-competence doctrine and the autonomy of the arbitration clause, a regrettable proximity that can lead to confusing these two rules which overlap only partially. The former allows the arbitral tribunal to rule first, ...