The Negative Effect of Compétence-Compétence: The Verdict Has to Be Negative
Austrian Arbitration Yearbook, pp. 238-258, 2009
18 Pages Posted: 5 Jun 2009
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
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