The Kompetenz-Kompetenz doctrine presumes that an international arbitral tribunal has jurisdiction to assess and decide its own jurisdiction. Legal systems adopt different approaches to the Kompetenz-Kompetenz principle. National arbitration legislation varies regarding the versions of the Kompetenz-Kompetenz principle adopted.[1]
The principle involves two types of effects. The positive effect of Kompetenz-Kompetenz is that the arbitral tribunal has the power to consider and decide jurisdictional objections. The negative effect of the principle amounts to the lack of authority of the judiciary to determine jurisdictional objections at least until the arbitral tribunal renders an award.[2]
France
Article 1465 of the French Code of Civil Procedure recognizes the Kompetenz-Kompetenz principle:
“The arbitral tribunal has exclusive jurisdiction to rule on objections to its jurisdiction.”[3]
Through this Article, France has adopted the positive effects of Kompetenz-Kompetenz, whereby the arbitral tribunal has jurisdiction to decide all jurisdictional disputes, subject to judicial review. Moreover, it reflects that in France, the parties are not required to confer authority to the arbitral tribunal through their agreement.
Article 1448 (1) of the French Code of Civil Procedure further provides:
“When a dispute subject to an arbitration agreement is brought before a court, such court shall decline jurisdiction, except if an arbitral tribunal has not yet been seized of the dispute and if the arbitration agreement is manifestly void or manifestly not applicable.”[4]
This Article demonstrates that the negative effects of the Kompetenz-Kompetenz principle are also effective in France, because national courts may not consider jurisdictional objections on an interlocutory basis.[5] The court must not inquire on the merits of the disputes nor the validity or scope of the arbitration clause.[6] The court’s authority is constrained to conducting a prima facie inquiry on the validity of the arbitration clause.[7]
United States
The US Federal Arbitration Act does not provide for the Kompetenz-Kompetenz principle. There is no equivalent to Article 1448 of the French Code of Civil Procedure. However, US Courts recognize the positive effect of Kompetenz-Kompetenz, subject to judicial review.[8]
The leading case addressing the principle is First Options of Chicago Inc. v Kaplan,[9] which provides that, through the arbitration agreement, parties may grant the arbitrator Kompetenz-Kompetenz or reserve jurisdictional decisions to national courts.[10] Absent contrary agreement by the parties, US courts have created a presumption that arbitrators have jurisdiction to decide their own jurisdiction, subject to subsequent judicial review.[11]
The US recognizes positive Kompetenz-Kompetenz but permits judicial consideration of jurisdictional issues on an interlocutory basis, in certain circumstances, which is an intermediary position compared to countries that wholly accept or reject the negative effects of Kompetenz-Kompetenz.[12]
[1] Gary Born, International Commercial Arbitration, Second Edition, Chapter 7: International Arbitration Agreements and Competence-Competence, p. 1048
[2] Gary Born, International Commercial Arbitration, Second Edition, Chapter 7: International Arbitration Agreements and Competence-Competence, pp. 1069 – 1071
[3] Article 1465 of the French Code of Civil Procedure
[4] Article 1448 (1) of the French Code of Civil Procedure
[5] Gary Born, International Commercial Arbitration, Second Edition, Chapter 7: International Arbitration Agreements and Competence-Competence, p. 1049
[6] Gary Born, International Commercial Arbitration, Second Edition, Chapter 7: International Arbitration Agreements and Competence-Competence, p. 1113
[7] Gary Born, International Commercial Arbitration, Second Edition, Chapter 7: International Arbitration Agreements and Competence-Competence, p. 1114
[8] Gary Born, International Commercial Arbitration, Second Edition, Chapter 7: International Arbitration Agreements and Competence-Competence, p. 1061
[9] First Options of Chicago, Inc. v. Kaplan (1995) No. 94-560; see also First Options of Chicago Inc. v. Kaplan: Arbitrating the Question of Arbitrability of U.S Supreme Court
[10] Gary Born, International Commercial Arbitration, Second Edition, Chapter 7: International Arbitration Agreements and Competence-Competence, pp. 1061 – 1062
[11] Gary Born, International Commercial Arbitration, Second Edition, Chapter 7: International Arbitration Agreements and Competence-Competence, p. 1062
[12] Gary Born, International Commercial Arbitration, Second Edition, Chapter 7: International Arbitration Agreements and Competence-Competence, p. 1049
