Questions of arbitral jurisdiction occur frequently in practice. Parties involved in international trade and their lawyers are often embroiled in jurisdictional disputes which increase the legal costs of the parties involved, cause delay, and can affect enforcement of an award. A frequent and important issue is when jurisdiction is to be decided and by whom. The doctrine of Kompetenz-Kompetenz has been adopted in the Arbitration Act 1996 and has revolutionised how jurisdictional issues are to be determined. Certainty in this area is elusive because there are different approaches to the doctrine by the national laws of different states. If a legal system allows the arbitration to proceed in the face of a jurisdictional challenge – when, for example, the validity or scope of the arbitration agreement is questioned – the story could unfold in several ways.
In this seminar, our panellists will examine how Kompetenz-Kompetenz is treated in different jurisdictions.
• How is the doctrine of Kompetenz – Kompetenz understood and applied in different jurisdictions?
• Interaction of the separability doctrine with Kompetenz-Kompetenz
• Anti-suit injunctions and the doctrine of Kompetenz – Kompetenz
• What are the powers of the arbitral tribunal and the court?