Kompetenz Kompetenz doctrine simplified | Arbitration Law explained | Lex Animata by Hesham Elrafei

Kompetenz-Kompetenz , International Commercial Arbitration explained - Lex Animata by Hesham Elrafei

Competence de la competence principle

Competence competence is a procedural doctrine that grants the arbitrator the power to decide challenges to his own jurisdiction, like the validity of the arbitration agreement, the appointment process , or the interpretation of the arbitration clause.
On the other hand, the principle of Separability gives immunity to the arbitration agreement from the main contract, which means that an arbitration clause is independent of the rest of the contract, and therefore a decision by the tribunal that the contract is null , shall not automatically lead to the invalidity of the arbitration clause.
While kompetenz-kompetenz is different from the separability doctrine, they both work together to ensure the efficiency of the arbitration as a private dispute resolution regime, without being disturbed by technical challenges.
According to the kompetenz-kompetenz principle, the parties would lose their rights to have the validity of the arbitration agreement decided by a state court , as the arbitrator is the first judge of his own tribunal’s jurisdiction.

If the tribunal rules that it has jurisdiction, Any party may then appeal this decision before the competent court, which has the final word and is likely to be the seat of the arbitration. The party may still resort to the court of the seat , if the the tribunal delays its decision on jurisdiction, and he can also ask the court at the place of enforcement, to refuse the recognition and enforcement of the award on jurisdictional grounds

In all cases, During the challenge of the tribunal’s jurisdiction, the arbitration proceedings may continue as normal, even to the issuance of a Final Award.

The tribunal's right to rule on its own authority, is accepted by most arbitration laws around the world, however, in the few States that are not arbitration friendly, courts might support disruptive manoeuvres attempted by the parties in particular when the state itself is a party to the proceedings.