The Power of an Arbitral Tribunal to Determine Its Own Jurisdiction in International Commercial Arbitration

Abstract

This article discusses the powers of an arbitral tribunal to determine its own jurisdiction. The determination of the question of the jurisdiction of a tribunal lies in its own domain at least in the first instance by virtue of the principle of competence-competence. The principle enables a tribunal to test its own jurisdiction and confirm the extent of its power. This is one of the pillars of arbitration as it promotes party autonomy. The positive aspect of this power of the tribunal is that it cures the excesses of jurisdiction or any lack of it by granting an objecting party with immediate remedy thereby saving costs and time. The downside of this power is that an objecting party may still be permitted under the English Act and the Model Law to revert to court during the proceedings if he is not happy. However, time is of the essence. The article rests on an accumulation of case law, current and secondary literature. It takes cognizance of the fact that parties to an arbitration agreement have, by virtue of their autonomy a choice of subjecting the arbitration proceedings to rules of arbitration. As such, this article uses the ICC Rules of Arbitration and the UNCITRAL Rules of Arbitration as reference sets of rules. An arbitral tribunal’s power to rule on its own jurisdiction is unique in the sense that it is a test of its jurisdiction. It is indeed an exceptional power as it helps define the extent a tribunal’s powers and therefore becomes its own judge when queried. This power is important as it enables the arbitration proceedings to progress as scheduled.