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Kompetenz Kompetenz and UNCITRAL

Model Law
Overview:
Clash of jurisdictions between state courts and
arbitral tribunals?
What is Kompetenz Kompetenz of an arbitral
tribunal worth? (UNCITRAL Model Law, NYC,
European Convention)
The end of Kompetenz Kompetenz? (Draft Art 27A
Brussels Regulation)
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Clash of jurisdictions
Clash of jurisdictions between state courts and
arbitral tribunals:
Is the arbitration world neatly regulated, or
Is it a jungle?

The origin of the term Kompetenz


Kompetenz
Germany
a finally binding decision of an arbitral tribunal on
its own jurisdiction
(based on an additional agreement concluded
between the parties to have the jurisdiction
resolved by arbitration (Kompetenz-KompetenzClause)

What is Kompetenz Kompetenz worth?


Nowadays:
In most jurisdictions, it is a tentative competence of
the arbitral tribunal to decide on its competence
subject to the competence of the state courts to
finally decide.
The situation is even worse where a claim is
brought directly before a court.

UNCITRAL Model Law


Article 8(1) UNCITRAL Model Law:
A state court before which an action is brought
which is subject to an arbitration agreement shall
refer the parties to arbitration unless it finds that
the arbitration agreement is null and void,
inoperative or incapable of being performed.

Article 8(1) UNCITRAL Model Law


It is in the competence of the court to decide on the
validity of the arbitration agreement.
Court means any court rightly seized according to
its domestic law; not just the court at the place of
arbitration.

New York Convention


Art II (3) NYC
Any court seized is entitled to examine the validity
of an arbitration clause and hence to decide
whether or not it has jurisdiction to decide the
matter.

European Convention
More arbitration-friendly where arbitration was
initiated before a state court is seized: The
arbitrators decision is subject only to
subsequent judicial control provided for under the
lex fori.
However, a court is free to decide on the existence
and the validity of the arbitration agreement where
seized prior to initiation of an arbitration.

Interim Conclusion
Kompetenz Kompetenz of an arbitral tribunal is a
myth in today s word.

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Draft Art 27A Brussels Regulation


A court of a member state shall stay the
proceedings once the defendant contests the
jurisdiction of the court with respect to the
existence and scope of an arbitration agreement if a
court of the member state that is designed as place
of arbitration in the arbitration agreement is seized
for declaratory relief in respect to the existence, the
validity and/or scope of that arbitration agreement.

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Draft Art 27A Brussels Regulation


forum conveniens
respecting the parties agreement to have their
dispute decided in a specific country
potentially reaching the aim that was stressed in
the course of the drafting of UNCITRAL Model Law:
To decide upon the jurisdiction of an arbitral
tribunal at the earliest possible stage
disregarding Kompetenz Kompetenz of an arbitral
tribunal to decide on its own jurisdiction

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Draft Art 27A Brussels Regulation


The scope under Article 27A (the existence, the
validity and/or scope of that arbitration
agreement)
broader than
the scope under Article 8(1) Model Law and Art
III(2) NYC (null and void, inoperative or incapable
of being performed).

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The end of Kompetenz Kompetenz?


The forum conveniens granted by article 27A
would be a court (not only ultimately, but even in
the first place) rather than an arbitral tribunal.
Kompetenz Kompetenz of the arbitral tribunals
would not be respected.
But isnt that in the given context - already a
reality?
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Thank you!

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