Introduction
Arbitration has long been recognized as the preferred dispute resolution mechanism in international commerce. Parties from different legal systems often turn to it because it promises what domestic courts frequently cannot, to wit: speed, procedural flexibility, independence from national biases, amongst others. These attributes have established arbitration as a cornerstone of global commerce, assuring parties that their disputes will be resolved with fairness, efficiency, and neutrality across borders.
However, beneath this promise lies a recurring challenge that often surfaces before the merits of any case are even considered: the question of authority. Should the arbitral tribunal itself determine whether it has jurisdiction to hear the dispute submitted to it, or should this power rest with the national courts? This threshold issue is more than a technicality; it goes to the heart of arbitration’s very identity and has given rise to one of its most enduring and hotly debated doctrines.
This article examines the rationale behind the doctrine of competence-competence, the foundations of a tribunal’s authority to determine its own jurisdiction, and, by extension, the concept of separability. It further explores the delicate role of national courts in relation to arbitral proceedings, with particular emphasis on the timing, scope, and extent of judicial intervention in jurisdictional challenges. It is also essential to state that the importance of this article lies in the examination of some of the critical factors governing choice of seat of arbitration, to wit, the level of judicial interference or curial support to arbitration and certainty of the legal system in support of arbitration.
Doctrine of Competence-Competence
The term “competence-competence” refers to the power of an arbitral tribunal to determine, in the first instance, the scope of its own jurisdiction, including the existence, interpretation, and validity of the arbitration agreement. The doctrine is designed to limit the national court’s interference with arbitral proceedings, promote party autonomy, and enhance the arbitration process, making it a definitive and assured method of dispute resolution.
