Critically discuss the contribution the doctrines of kompetenz-kompetenz and separability have made to the development of international commercial arbitration.
A large number of conflicts relating to international trade are not dealt with by the courts, but instead by arbitration. In a private and informal process, both parties to a contract agree to delegate their issue to a single or a group of unbiased individuals to reach some sort of resolution regarding that issue. International commercial arbitration is one form of arbitration and its use is ever-increasing worldwide for various key reasons. For example, it has the tractability, speed and discretion that standard jurisdictional processes lack. Additionally, it results in an award that is both final and binding and has the ability to be enforced overseas. While the use of ICA is becoming more widespread, particularly in Western European nations where ICA has long been a fixture, Eastern European nations have less faith in ICA, instead opting for alternative jurisdictional processes. This lack of faith has been attributed to a lack of knowledge on the part of such Eastern European nations, thus implying that improved instruction on ICA would be beneficial. The area of ICA has realised some fascinating developments over the years. The interlinked doctrines of kompetenz-kompetenz and separability are brilliant examples of such development. This essay will critically discuss both doctrines and their respective contribution to the development of ICA. This will be done using a range of academic journal articles and textbook chapters and by considering relevant case law and statute.
The autonomous nature of arbitration agreements has given birth to the doctrines of separability and kompetenz-kompetenz, which have been referred to as the foundations of ICA. For any party to question the competence of the arbitrators, it is essential that they comprehend both doctrines. The concepts of separability, or autonomy, and competence have been dealt with previously by the 1955 ICC Rules of Arbitration. However, the New York Convention, whose primary purpose was to guarantee that awards resulting from the arbitration process were enforceable overseas, made no specific provisions relating to either of these concepts. Including in the aforementioned Arbitration Act 1996, both concepts have been codified by many countries, applied by countless different courts, and examined by several scholars. The line between the two concepts is often blurry for the primary reason that they both relate to the power of arbitrators. However, while they can both be used concurrently and both are aimed at maximising the effectuality of arbitration agreements, they are actually distinguishable. In close collusion, they work to make arbitration a more powerful and effectual tool to settle international commercial conflicts and to reduce the possibility of a respondent using delay to detrimental effect. Separability basically refers to the arbitration agreement being detached from the contract in which it is contained, but competence essentially refers to the power of arbitrators to come to decisions on their own jurisdiction. While both doctrines have developed simultaneously and have been recognised internationally, they have developed in very different ways and both have received different international recognition. Moreover, they have both contributed to the development of ICA to varying degrees. For that reason, they are considered to have different inherent worth. While the New York Convention does not specifically provide for either concept, both are somewhat incidentally linked to sections of the Convention that do not actively promote the doctrines working at full potential.
 Amazu Asouzu, International Commercial Arbitration: Practice, Participation, and International Development (Cambridge University Press, 2001) 29.
 Julian Lew and Loukas Mistellis, Arbitration Insights: Twenty Years of the Annual Lecture of International Arbitration (Kluwer Law International, 2007) 83.
 Association for International Arbitration, Arbitration is CIS Countries: Current Issues (Maklu Publishers, 2012) 204.
 Julian Lew, Loukas Mistellis and Stefan Kroll, Comparative International Commercial Arbitration (kluwer Law International, 2003) 46.
 Jack Graves and Yelena Davydan, 'Competence-competence and separability – American style,' in Stefan Kroll (ed), International Arbitration and International Law: Synergy, Convergence and Evolution (Kluwer Law International, 2011) 103.
 Yves Derains and Eric Schwartz, A Guide to the ICC Rules of Arbitration, (Kluwer Law International, 2005) 87.
 Alan Redfern and Martin Hunter, Law and Practice of International Commercial Arbitration (Sweet and Maxwell, 2005) 94.
 Amazu Asouzu (n 1) 44.
 Amazu Asouzu (n 1) 46.
 RH Smith, 'Separability and Competence-Competence in International Arbitration: Ex Nihilo Fit? Or Can Something Indeed Come from Nothing?' The American Review of International Arbitration 13(19).
 Alan Redfern and Martin Hunter (n 7) 95.
- Quote paper
- Jobs Anderson (Author), 2010, The contribution of the doctrines of kompetenz-kompetenz and separability on the development of international commercial arbitration, Munich, GRIN Verlag, https://www.grin.com/document/270050