2 Kompetenz Kompetenz and UNCITRAL Model Law Overview: Clash of jurisdictions between state courts and arbitral tribunals? What is Kompetenz Kompetenz of an arbitral tribunal worth? (UNCITRAL Model Law, NYC, European Convention) The end of Kompetenz Kompetenz? (Draft Art 27A Brussels Regulation)

3 Clash of jurisdictions Clash of jurisdictions between state courts and arbitral tribunals: Is the arbitration world neatly regulated, or Is it a jungle?

4 The origin of the term “Kompetenz Kompetenz” Germany a finally binding decision of an arbitral tribunal on its own jurisdiction (based on an additional agreement concluded between the parties to have the jurisdiction resolved by arbitration (Kompetenz-Kompetenz- Clause)

5 What is Kompetenz Kompetenz worth? Nowadays: In most jurisdictions, it is a tentative competence of the arbitral tribunal to decide on its competence subject to the competence of the state courts to finally decide. The situation is even worse where a claim is brought directly before a court.

6 UNCITRAL Model Law Article 8(1) UNCITRAL Model Law: “A state court before which an action is brought which is subject to an arbitration agreement shall refer the parties to arbitration unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed.”

7 Article 8(1) UNCITRAL Model Law It is in the competence of the court to decide on the validity of the arbitration agreement. Court means any court rightly seized according to its domestic law; not just the court at the place of arbitration.

8 New York Convention Art II (3) NYC Any court seized is entitled to examine the validity of an arbitration clause and hence to decide whether or not it has jurisdiction to decide the matter.

9 European Convention More arbitration-friendly where arbitration was initiated before a state court is seized: The arbitrator’s decision is subject – only – to subsequent judicial control provided for under the lex fori. However, a court is free to decide on the existence and the validity of the arbitration agreement where seized prior to initiation of an arbitration.

10 Interim Conclusion Kompetenz Kompetenz of an arbitral tribunal is a myth in today’ s word.

11 Draft Art 27A Brussels Regulation A court of a member state shall stay the proceedings once the defendant contests the jurisdiction of the court with respect to the existence and scope of an arbitration agreement if a court of the member state that is designed as place of arbitration in the arbitration agreement is seized for declaratory relief in respect to the existence, the validity and/or scope of that arbitration agreement.

12 Draft Art 27A Brussels Regulation forum conveniens respecting the parties’ agreement to have their dispute decided in a specific country potentially reaching the aim that was stressed in the course of the drafting of UNCITRAL Model Law: To decide upon the jurisdiction of an arbitral tribunal at the earliest possible stage disregarding Kompetenz Kompetenz of an arbitral tribunal to decide on its own jurisdiction

13 Draft Art 27A Brussels Regulation The scope under Article 27A (“the existence, the validity and/or scope of that arbitration agreement”) broader than the scope under Article 8(1) Model Law and Art III(2) NYC (“null and void, inoperative or incapable of being performed”).

14 The end of Kompetenz Kompetenz? The forum conveniens “granted” by article 27A would be a court (not only ultimately, but even in the first place) rather than an arbitral tribunal. Kompetenz Kompetenz of the arbitral tribunals would not be respected. But isn’t that – in the given context - already a reality?

15 Thank you!