Kompetenz-Kompetenz and Its Negative Effect — A Comparative View

37 Pages Posted: 13 Sep 2017

Date Written: September 11, 2017

Abstract

The paper deals with the “negative-effect”-of-Kompetenz-Kompetenz doctrine in some of the major arbitration venues, France, Germany, Switzerland, the U.S., England and Canada (Quebec). The negative effect doctrine refers to the circumstances under which a national court, before which a case is pending, will refrain (or not) from a full review of whether an alleged arbitration agreement (requiring arbitration of the parties’ dispute) exists as between the parties, is valid, and covers the dispute — in deference to allowing the arbitrators to decide those issues in the first instance. Although national jurisdictions universally accept the “positive” Kompetenz-Kompetenz doctrine — under which arbitrators are authorized to decide their own jurisdiction, although not with finality — they follow dramatically different approaches to the “negative-effect” issue. After canvassing and analyzing how the major jurisdictions just mentioned approach the negative-effect doctrine, the paper closes with some suggestions for what it proposes as a “best practices” approach to the subject.

Keywords: arbitration, Kompetenz-Kompetenz, negative effect doctrine, New York Convention, UNCITRAL Model Law

Suggested Citation

Barcelo, John James, Kompetenz-Kompetenz and Its Negative Effect — A Comparative View (September 11, 2017). Cornell Legal Studies Research Paper No. 17-40. Available at SSRN: https://ssrn.com/abstract=3035485

John James Barcelo (Contact Author)

Cornell University - Law School ( email )

318 Myron Taylor Hall
Ithaca, NY 14853-4901
United States

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