Kompetenz-Kompetenz or Competence-Competence Doctrine traces its origin from Germany. It empowers an adjudicating body to determine the issues pertaining to its own jurisdiction, subject to no subsequent judicial review by any court of law. But, due to ever evolving jurisprudence of alternate dispute resolution it has been subjected to Judicial review by the Indian Courts.
Legal authorities with adjudicatory powers have the right to decide their own jurisdiction, which is also applicable to arbitral tribunals in international arbitration. The ability of an arbitral tribunal to determine its own jurisdiction is a crucial aspect of arbitration jurisprudence because it upholds the separability presumption. This presumption protects the arbitration agreement from any flaws in the underlying contract, ensuring the tribunal’s authority over the rights and obligations of the parties even after the termination of the contract. The doctrine of competence-competence empowers the tribunal to make decisions on substantive matters arising from the underlying contract, including the existence and validity of the arbitration agreement.
Section 16 of the Arbitration and Conciliation Act 1996, which is based on Article 16 of the UNCITRAL Model Law, recognizes the doctrine of competence-competence in Indian arbitration law. This includes the authority to address any objections raised concerning the existence or validity of the arbitration agreement. The provision also contains two fundamental principles that guide this process.
Firstly, it recognises that an arbitration clause — a provision specifying arbitration as the method of resolving disputes within a contract, is to be treated as an independent agreement distinct from the other terms and conditions of the contract itself. Secondly, Section 16 establishes that if the Arbitral Tribunal determines that the entire contract is null and void, this decision does not automatically result in the arbitration clause being considered invalid.
The principle of competence-competence is fundamental to international arbitration and plays a vital role in guiding the arbitration process globally. This principle grants Arbitral Tribunals the power to decide their own jurisdiction, which encompasses matters pertaining to the validity and existence of the arbitration agreement. It emphasizes limited judicial involvement in the early stages, encouraging a prompt resolution of disputes through arbitration.
Author of this article:
Adv. Ravish Bhatt,
Partner, R&D Law Chambers,
Dual Qualified Lawyer Solicitor | International Tax Affiliate
Connect with Mr. Bhatt on Linkedin: https://www.linkedin.com/in/adit-ravishbhatt/
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