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.
Table of Contents
1. Introduction
2. Discussion
2.1 Separability
2.2 Kompetenz-kompetenz
3. Conclusion
Objectives and Topics
The primary objective of this work is to critically examine the doctrines of kompetenz-kompetenz and separability, analyzing their foundational role in the evolution and effectiveness of international commercial arbitration (ICA) and how they facilitate the resolution of cross-border trade disputes.
- The theoretical and practical foundations of the doctrine of separability.
- The scope and controversy surrounding the doctrine of kompetenz-kompetenz.
- The role of the UNCITRAL Model Law in standardizing arbitration practices.
- Jurisdictional challenges and the interplay between courts and arbitral tribunals.
- The impact of these doctrines on the efficiency, cost-effectiveness, and global adoption of ICA.
Excerpt from the Book
Separability
The doctrine of separability has been well constituted since the 1940s. It was brought about in English law by the case of Heyman v Darwins [1942]12, and is enacted by s. 7 of the Arbitration Act 1996, which states that13:
'Unless otherwise agreed by the parties, an arbitration agreement which forms or was intended to form part of another agreement (whether or not in writing) shall not be regarded as invalid, non-existent or ineffective because that other agreement is invalid, or did not come into existence or has become ineffective, and it shall for that purpose be treated as a distinct agreement.'
However, while the issue has been codified by statute, it is worth underlining the fact that the issue was well settled by case law prior to this. The doctrine provides that an arbitration agreement included in a written contract does not die when the contract is terminated, either by performance or as the consequence of some sort of occurrence, such as illegality. Instead, the arbitration agreement survives the termination because it is considered to be independent to the contract and therefore a separate and distinct agreement altogether14.
Summary of Chapters
Introduction: Provides an overview of international commercial arbitration as an alternative to court litigation and introduces the key doctrines of separability and kompetenz-kompetenz as pillars of the field.
Discussion: Analyzes the mechanics of the separability and kompetenz-kompetenz doctrines, their historical development, codification through instruments like the UNCITRAL Model Law, and the practical challenges they present to national courts.
Conclusion: Summarizes the contributions of both doctrines to streamlining arbitration processes and increasing its global popularity, despite the remaining challenges in judicial interpretation.
Keywords
International commercial arbitration, ICA, separability, kompetenz-kompetenz, competence, jurisdiction, arbitral tribunal, arbitration agreement, UNCITRAL Model Law, New York Convention, contract validity, dispute resolution, international trade, legal doctrine.
Frequently Asked Questions
What is the primary focus of this paper?
The paper explores the critical contributions of the doctrines of separability and kompetenz-kompetenz to the development and increased global acceptance of international commercial arbitration.
What are the two core doctrines discussed?
The two core doctrines are separability, which allows an arbitration agreement to survive the invalidity of the main contract, and kompetenz-kompetenz, which grants arbitrators the power to determine their own jurisdiction.
What is the main objective regarding these doctrines?
The goal is to critically analyze how these two principles, acting as foundations for international commercial arbitration, help streamline proceedings and increase the overall appeal of arbitration for cross-border disputes.
Which scientific method is utilized in this study?
The study employs a legal research methodology, utilizing academic journal articles, textbook chapters, relevant case law, and international statutes to conduct a critical analysis.
What topics are covered in the main section?
The main section covers the historical development of both doctrines, their codification in the 1996 Arbitration Act and the UNCITRAL Model Law, and the practical applications and controversies encountered in various jurisdictions, specifically focusing on English and German law.
Which keywords characterize this research?
Key terms include international commercial arbitration, separability, kompetenz-kompetenz, jurisdiction, arbitral tribunal, and UNCITRAL Model Law.
How does the doctrine of separability handle a contract's invalidity?
It dictates that an arbitration agreement is treated as a distinct and independent agreement; therefore, it does not become invalid simply because the main contract it is part of is found to be void or ineffective.
Why is kompetenz-kompetenz considered controversial?
It is often seen as controversial and misunderstood because it challenges the traditional power of national courts to determine the validity of an arbitration agreement, which some courts have historically been reluctant to surrender.
Does the New York Convention specifically provide for these doctrines?
No, the New York Convention does not specifically provide for these concepts, though they are often indirectly linked to its sections and have been widely adopted by countries through domestic legislation modeled on the UNCITRAL rules.
- 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
