According to German legal terminology, ""Kompetenz-Kompetenz" would imply that the arbitrators are empowered to make a final ruling as to their jurisdiction, with no subsequent review of the decision by any court".3 It has therefore been suggested that the use of the expression "Kompetenz-Kompetenz" (instead of Competence-Competence) in the context of investment arbitration is ambiguous and should probably be avoided.4
II. The positive effect of Competence-Competence
According to the Competence-Competence doctrine, an arbitral tribunal has jurisdiction to consider and decide any disputes regarding its own jurisdiction, subject to, in certain circumstances, subsequent judicial review. In the context of investor-State disputes, an arbitral tribunal's authority to rule on its own jurisdiction may be subject to the review of national courts with respect to ad hoc arbitrations; or the review of an ad hoc committee with respect to ICSID arbitrations.6
The Competence-Competence doctrine is rooted in the arbitration agreement itself.9 In application of the separability doctrine, the arbitral tribunal's authority to decide on its own jurisdiction therefore exists irrespective of whether the legal instrument containing the arbitration agreement has been terminated.10
In the context of investor-State disputes, the Competence-Competence principle extends to an arbitral tribunal's determination of its:11
This "positive" definition is widely accepted and applied in international commercial arbitrations16 as well as in the context of State-to-State17 and investor-State disputes, through express incorporation in major arbitration rules, such as the ICSID Convention,18 the ICSID Additional Facility Rules,19 the UNCITRAL Arbitration Rules,20 the ICC Arbitration Rules,21 the PCA Arbitration Rules22 and the LCIA Arbitration Rules,23 domestic arbitration legislation,24 and investment agreements.25
B. ICSID arbitration tribunals
The Competence-Competence doctrine is reflected in Article 41(1) of the ICSID Convention which provides that "the Tribunal shall be the judge of its own competence."27
In determining their competence, tribunals apply the requirements of the ICSID Convention, including the jurisdictional requirements set out in Article 25(1), the instrument of consent, and the relevant principles of international law.29
C. ICSID Additional Facility arbitration tribunals
The Competence-Competence doctrine is also incorporated under Article 45(1) of the ICSID Additional Facility Rules which provides that “The Tribunal shall have the power to rule on its competence."30
D. UNCITRAL arbitration tribunals
Tribunals constituted under the UNCITRAL Rules are also served with an authority to determine their own jurisdiction by virtue of the Competence-Competence principle expressed in Article 23(1) of the 2013 UNCITRAL Rules.31
III. The negative effect of Competence-Competence
It has been suggested that considering otherwise would allow parallel proceedings before an arbitration tribunal and domestic courts, thereby opening the door to dilatory jurisdictional objections.33
The extent to which national courts may have the authority to rule on an arbitral tribunal's jurisdiction is determined by (i) the relevant provisions in domestic law, often incorporating the New York Convention 1958, and (ii) their construction by case-law.
In particular, Article II(3) of the New York Convention has been implemented by several States in their legislation.35 The wording of Article II(3) of the New York Convention could be construed either as granting a great interpretative power to States' courts (see e.g., German courts' interpretation),36 or as providing domestic courts the authority to exercise a prima facie review only (see e.g., Swiss courts' interpretation).37
Anti-suit injunctions, when permitted by legislation, are a key remedy for parties who seek to protect an arbitral tribunal's jurisdiction from state interference at the jurisdictional stage, thereby aiding towards the enforcement of the Competence-Competence.38
Born, G.B., Chapter 7: International Arbitration Agreements and Competence-Competence, in International Commercial Arbitration, Kluwer Law International, 2005, pp. 1046-1252.
Boucaron-Nardetto, M., La compétence-compétence : le point de vue français. Plaidoyer pour la compétence à la française, Cahiers de l'arbitrage, n° 1, 2013, p. 37.
Douglas, Z., International Law of Investment Claims, Cambridge University Press, 2009, p. 616.
Gaillard, E., L'effet négatif de la compétence-compétence, in Haldy, J., Rapp, J.M. and Ferrari, P. (eds.), Etudes de procédure et d'arbitrage en l'honneur de Jean-François Poudret, Faculté de droit de l'Université de Lausanne, 1999, pp. 387-402.
Gaillard, E. and Savage, J. (eds.), Gaillard Fouchard Goldman on International Commercial Arbitration, Kluwer Law International, 1999, p. 1320.
Loquin, E., Fasc. 1034 : ARBITRAGE – Compétence arbitrale – Conflit entre la compétence arbitrale et la compétence judiciaire, JCl Procédure civile, LexisNexis, 2018.
Moreau, B., Glucksmann, E., Feng, P., Arbitrage international, Répertoire de droit commercial, Dalloz, 2016, paras. 56-62.
Park, W.W., The Arbitrator's Jurisdiction to Determine Jurisdiction, in Van Den Berg, J.A. (ed.), International Arbitration 2006: Back to Basics?, ICCA Congress Series, Vol. 13, ICCA & Kluwer Law International, 2007, pp. 55-153.
Paulsson, J., Denial of Justice in International Law, Cambridge University Press, 2005, pp. 150-153.
Seraglini, C. and Ortscheidt, J., Droit de l'arbitrage interne et international, LGDJ, 2nd ed., 2019, p. 1052.
Déjà enregistré ?