The Negative Effect of Compétence-Compétence: The Verdict Has to Be Negative

Austrian Arbitration Yearbook, pp. 238-258, 2009

Queen Mary School of Law Legal Studies Research Paper No. 22/2009

18 Pages Posted: 5 Jun 2009

See all articles by Stavros Brekoulakis

Stavros Brekoulakis

Queen Mary University of London, School of Law

Abstract

The paper explores issues relating to the conflict of jurisdiction between national courts and arbitral tribunals. More specifically, it looks into the theoretical premises of the jurisdiction of arbitral tribunals, and the doctrine of compétence–compétence, which provides tribunals with the power to examine and determine its own jurisdiction. However, the paper argues that, while the doctrine of compétence–compétence started as a legal convention aiming to strengthen the jurisdiction of arbitral tribunals, it has now developed to a legal paradox, threatening to undermine the delicate jurisdictional balance between national courts and arbitral tribunals. This especially applies to the negative effect of compétence-compétence, a conceptual derivative of the original meaning of the principle, which gives jurisdictional priority to arbitral tribunals over national courts. The paper examines the elements of the negative compétence–compétence, through a comparative analysis of the arbitration legislation and jurisprudence of various national jurisdictions, and shows that the negative compétence-compétence lacks legitimacy, and eventually it is counterproductive to arbitration. The paper concludes with some tentative suggestions on the complex issue of allocation of powers between national courts and arbitral tribunals.

Keywords: jurisdiction, arbitration, tribunals, national courts, compétence–compétence, negative compétence–compétence, conflict of jurisdiction

Suggested Citation

Brekoulakis, Stavros, The Negative Effect of Compétence-Compétence: The Verdict Has to Be Negative. Austrian Arbitration Yearbook, pp. 238-258, 2009, Queen Mary School of Law Legal Studies Research Paper No. 22/2009, Available at SSRN: https://ssrn.com/abstract=1414325

Stavros Brekoulakis (Contact Author)

Queen Mary University of London, School of Law ( email )

67-69 Lincoln’s Inn Fields
London, WC2A 3JB
United Kingdom

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