Eugene THONG Kompetenz-Kompetenz The kompetenz-kompetenz doctrine is generally understood as the arbitral tribunals authority to rule on the scope,

validity and existence of the arbitration agreement if any of these are challenged, and thereby to rule essentially also on its own jurisdiction. Although under this doctrine there is no need for the arbitral tribunal to invoke the jurisdiction of a national court, this does not preclude judicial review by the latter either. Kompetenz-kompetenz is recognised by the main international arbitration conventions and institutional rules, as well as most national arbitration laws, such as: 1961 European Convention on International Commercial Arbitration, Art. V(3); 1998 ICC Arbitration Rules, Art. 6(2); UNCITRAL Arbitration Rules (as revised in 2010), Art. 23(1); 2009 AAA International Arbitration Rules, Art. 15(1); 1998 LCIA Arbitration Rules, Art. 23.1; 1985 UNCITRAL Model Law on International Commercial Arbitration, Art. 16(1); 1996 English Arbitration Act, section 30(1); Art. 1465 of Frances new Code of Civil Procedure, as amended in 2011; German Code of Civil Procedure (Zivilprozessordnung), section 1040; 1987 Swiss Law on Private International Law, Art. 186(1). It should be noted that of all these, Art. 16(1) of the UNCITRAL Model Law appears to provide the most popular articulation of the doctrine: The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. Even though the kompetenz-kompetenz doctrine might seem to be straightforward, there is still some confusion and ambiguity surrounding it. Thus, I will explore (I) its origin and meaning; (II) its various forms; and (III) the stakes involved. I. Origin and meaning of kompetenz-kompetenz

The term kompetenz-kompetenz comes from the German Kompetenz-Kompetenz, which literally means the jurisdiction of jurisdiction. French speakers use the term comptence sur la comptence, or comptence-comptence in short, to denote the same concept. According to Fouchard, Gaillard, and Goldman, the origin of the expression has never been very clear. What we can say about it is that it has continental origins, but has now become more or less recognised in common law jurisdictions as well, even if in a state that is not completely clear. Nonetheless, Sklenyte attributes its origin to a case in 1955, when the German Federal Supreme Court held that the public forum request to enforce an arbitration award was not entitled to question the existence of a valid arbitration agreement. The court arrived at this conclusion by presuming the parties entered into not

Eugene THONG one but two arbitration agreements: one with respect to their commercial contract and another regarding a potential dispute about the existence of a valid arbitration agreement.1 What makes matters more confusing is that the German legal terminology KompetenzKompetenz has a meaning that is different from that of the term kompetenz -kompetenz as it is used in international arbitration. The German Kompetenz-Kompetenz would imply that the arbitral tribunal is authorised to make a final ruling on its jurisdiction, without any subsequent review of the decision by any court. This is, however, not the case, in Germany or elsewhere. II. The various forms of kompetenz-kompetenz

In fact, it has never even been accepted in Germany for the national courts to withhold deciding on the arbitral tribunals jurisdiction until the latter has had the occasion to do so itself, that which confuses the significance of the term even further. But aside from the confusion generated by linguistics, much of the uncertainty surrounding the doctrine also arises because the national laws of different states approach it in differing ways. Nonetheless, there are four possible variations of it: Firstly, the arbitral tribunal is allowed to continue with its proceedings despite challenges to the arbitration agreement specifically. This is subject to judicial review. Secondly, the arbitral tribunal is authorised to rule on its own jurisdiction, but this is subject to concurrent judicial review if one party takes the challenge to the national court. Thirdly, the arbitral tribunal is authorised to rule on its own jurisdiction, and judicial review is also possible, but only after the question has been addressed by the tribunal. Alternatively, it is also possible that the judicial review is permitted only after a final award on the merits has been made by the tribunal. In either case, what this means is that the arbitral tribunal must be the first instance of any challenge to its jurisdiction. Fourthly, the arbitral tribunal has the exclusive authority to rule on its own jurisdiction, and therefore this is subject to little or no judicial review. However, these are only templates. In reality, the application of kompetenz-kompetenz is more nuanced and therefore the doctrine is less readily grasped. For example, the third model approaches best the procedure that is used in France. Yet at the same time, a French court does have the possibility of questioning arbitral jurisdiction, but only under the following two very strict conditions: firstly, no arbitral tribunal must have been constituted yet; and secondly, the arbitration agreement must be prima facie manifestly inexistent or nulland this latter criterion is supposed to be extremely difficult to fulfil. Similarly, the procedure in Germany is such that it could fall under both the first and the second models: it allows for broader judicial intervention at the outset as well as

Sklenyte, pp. 47-8.

Eugene THONG during arbitration proceedings, but at the same time, once initiated, the arbitration must be allowed to run its course. III. The stakes in kompetenz-kompetenz

Using the above examples of the French and German interpretations of kompetenz-kompetenz, we can deduce that what are essentially at stake are concerns of efficacy and legitimacy. By efficacy I refer to the efficacy of the arbitration process. To start with, kompetenz-kompetenz is consistent with the parties express or implied intent that any and all disputes arising out of their relationship are to be resolved by arbitration, including disputes about the arbitration agreement itself. This means that the arbitral tribunals jurisdiction should be safeguarded somehow, and that a party should not be allowed to escape or delay the arbitration proceedings simply by challenging the existence, validity or scope of the arbitration agreement. On the other hand, it is always possible that a challenge to the arbitration agreement is genuine and thus legitimate. Having the arbitral tribunal rule on its own jurisdiction is also paradoxical because it basically lacks authority to decide anything unless and until their authority under the arbitration agreement has been established. On a practical level, another argument against the arbitral tribunals jurisdiction is the fact that the arbitrators have a financial interest in sustaining their jurisdictionthus it is unrealistic to expect from them an objective decision on this question. These two opposing concerns are what give the various interpretations of kompetenzkompetenz their shape. In the French case, the efficiency of the arbitral process is prioritised. Hence, while allowing nothing to derail the proceedings, French law also acknowledges the legitimacy concerns through the prima facie manifest inexistence or nullity exception. Whereas in the German instance, legitimacy is given more weight since broader judicial intervention is allowed at the start. At the same time, this may avoid long-term inefficiency as well, should the arbitration agreement be discovered to be inexistent or null eventually. All the same, once arbitration proceedings are initiated, they are allowed to run their full course as a way to ensure overall efficacy. Conclusion The opposing concerns of efficacy and legitimacy are addressed by the fact that while the arbitral tribunal retains its jurisdiction to rule on its own jurisdiction, the nature of its decision is ultimately provisional in the sense that generally, this decision is subject to judicial review. This appears to be the overarching structure of the kompetenz-kompetenz doctrine. It would hence be a mistake to think that the arbitral tribunal has sole jurisdiction under it; it is rather that the tribunal usually has earlier jurisdiction since we do not want unnecessary judicial intervention to obstruct the arbitration process

Eugene THONG from the start. In the end, the form that kompetenz-kompetenz takes in reality is simply an outcome of how much relative importance a national system places on either concern.

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