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VOL. 5, ISSUE 4 (2023)
Determining the doctrine of Kompetenz-Kompetenz: An instrument of fraud or justice
Authors
Divya MB
Abstract
The doctrine of kompetenz-kompetenz
is governed under Section 16(1) of Arbitration and Conciliation Act, 1996. As a
theoretical principle, it is extensively accepted to have a binary effect.
While its positive effect confers upon an arbitral bench the power to rule on
its governance, the negative effect establishes a presumption of chronological
precedence for the bench with respect to resolving questions on governance.
Stemming from what appears to be an essential mistrust in the mechanism of
arbitration, the Courts in India have been reticent in admitting this negative
effect while assessing the myriad questions put before it. It will consequently
result in the adoption of an unequal pro-arbitration approach that is agonized
with interventions of judiciary at each stage. Before the enactment of the
Arbitration and Conciliation Act, 1996, no arbitral tribunals had the power to
determine the cogency of the arbitration agreement or the arbitral tribunal’s
jurisdiction and ultimately the courts had the upper hands. Thus, the arbitral
tribunal’s power to decide its own jurisdiction is called “Kompetenz-Kompetenz”.
The present research project examines the evolution of the kompetenz-kompetenz
principle, applicability of the principle, negative and positive effects of the
doctrine, other principles like autonomy, separability are also discussed.
These principles are the “true pillars of alternative dispute resolution” which
is popularly referred to as “Dispute Settlement Mechanisms”. It is contended in
this project that the principles together form the bedrock of the arbitrator’s
jurisdiction. After a careful scrutinization and examination of the landmark
precedents and recent important case laws on the doctrine of Kompetenz-Kompetenz,
the conclusion of this paper is that the principle of Kompetenz-Kompetenz
is an essential tool and instrument of administration of justice.
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Pages:197-206
How to cite this article:
Divya MB "Determining the doctrine of Kompetenz-Kompetenz: An instrument of fraud or justice". International Journal of Law, Policy and Social Review, Vol 5, Issue 4, 2023, Pages 197-206
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