International Commercial Arbitration

InternationalCommercialArbitration

Competence-Competence

M. Basit Bhatti

Doctrine of separability & doctrine of competence-competenceare well recognized principles in International Arbitration.Their aim is to prevent any kind of judicial intervention injudicial system which creates obstruction in the Arbitrationprocess. In this way principle of competence-competenceempowers the tribunal to determine its own jurisdiction.

TABLE OF CONTENTS

Topics

Page No

Introduction

2

International Commercial Arbitration

2

Tribunals

3

Powers of Arbitral Tribunal

4

Jurisdiction Issue

5

Concept of Competence-Competence

5

Doctrine of Sepritibility

7

Seat of Arbitrator

9

2

Importance of Seat

9

London Seat

10

Review of Scholarly opinion

11

Arbitration Agreement

12

Re-examining Powers

12

Analysis

13

Bibliography

14

INTRODUCTION

Tribunal has the power to determine its own jurisdiction and it

is inherited power of the tribunal. The doctrine of separability

and the doctrine of competence-competence are very well

recognized principles in the international arbitration. The aim

3

of both principles is to prevent any kind of judicial

intervention which creates obstruction in the arbitration

process. The principle of competence-competence empowers the

tribunal to determine its own jurisdiction. Due to its unique

features the arbitration is now becoming an attractive dispute

resolution process for all and everyone thinks that this process

is more effective and speedy. In arbitration process there are

some tribunals which work under the superior courts but they have

some jurisdictions for them, the members of arbitral tribunal are

well reputed people in the society.

International chamber of commerce awarded a seat of arbitration

to the Arbitral Tribunal to solve the problems raised in the

international arbitration. Arbitration tribunals resolves the

disputes impartially in its proceedings and its decisions are

always agreed by the parties and it is also binding on them.

After the Supreme Court decision in the Dallah case it has

cleared by the court that the doctrine of competence-competence

is the best doctrine for the arbitration tribunal to determine

its own jurisdiction and also about the review power of the seat.

INTERNATIONAL COMMERCIAL ARBITRATION

A process to settle dispute where an unbiased third party involve

to resolve the dispute between the parties and who agreed on an

agreement are called Arbitration this process should be private

not on state level, the decision of arbitrator are binding on the

parties and courts are execution authorities in arbitration

4

matters and when the disputes are commercial or related to

commerce then one can say them commercial arbitration and they

always related to economic matters. The commercial arbitration

may be domestic or international where countries developing in

commerce involve in disputes relating to commerce adopt

arbitration method to resolve their dispute then this method

would become international commercial arbitration but before

1920s there were no clear concept of “commercial” in 1961

European Convention on International Commercial Arbitration was

use the name international commercial arbitration but still the

word commercial was not defined but in 1985 it was defined

properly in model law. Model Law defines if parties are in

business dispute and their places of business are in different

states at the time of conclusion of agreement or if the

arbitration agreement is situated outside the state where they

have places of business or if the parties related to the more

than one country and they are agreed on subject matter of

arbitration agreement then the disputes are haired as

international commercial arbitration.1 International commercial

arbitration plays very important role in resolving the disputes

between states there are some advantages of arbitration for which

states like to adopt this process, they think that this process

is less expansive but in actual figures it is more expansive at

the end of the time but the major advantage is that the

arbitrators in this field are the experts of their fields and

1 UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION, UNITED NATIONS 1994, United Nation Publication V.06-53866- May 2006-750, Article 1(3)

5

they try the case with the mutual consent of the parties and also

it is the easy way to resolve the disputes and after getting the

order parties has right to go to the court on some grounds but

this system has still not much advantages for the parties and the

enforceability of orders are also exists, there is International

court of arbitration under which International Chamber of

Commerce “ICC” is an independent institution who deals the cases

related to commerce this court does not resolve the cases

directly, it resolves the disputes by arbitrational tribunals who

deal cases under the ICC rules.2

TRIBUNALS

Tribunals are the penal of one or arbitrators who are called as

arbitration tribunal that resolve the dispute by the way of

arbitration, this term can be used for sole arbitrator of more

than one arbitrators and on the other hand there may be one or

more parties as appellant and the defendants. Tribunals mostly

work under the superior courts and arbitral tribunal role on

their own jurisdiction article 16 of the international commercial

arbitration act defines that its objectives are to determine the

rights under the arbitration agreement.3 When the parties are

agreed on subject matter and then with the consent of the one

party tribunal can order the other to take some protective

measure regarding to the subject matter of the dispute and if the

2 ARBITRATION AND ADR RULES, Imprimerie de l’Orangerie. Trappes (78). Printed in France in September 2011, p 83 The International Commercial Arbitration Act, Article 16 of the Statutes of Saskatchewan, 1988-89

6

tribunal feel any threat tribunal can provide appropriate

security.4 Tribunals has its own jurisdiction now a days the

question about the tribunal jurisdiction has arisen and this

matter is much complicated because tribunals has jurisdiction to

decide their powers and it is wide consensus that the arbitral

tribunal has the power to rule on all aspects of its own

jurisdiction.5 Some previous court decisions recognize the

arbitrational tribunal rights to determine that weather

arbitration agreement exists between the parties.6 Most of the

time arbitrators are more sensitive to argue about their

jurisdiction. The authority of arbitrators arises from the

contract between the parties and the doctrine of competence-

competence defines the issue of the existence and validity of the

arbitration agreement when it goes to arbitrator.

POWERS OF ARBITRAL TRIBUNAL

Tribunal has different kind of powers which has conferred by

arbitration agreement and arbitrator derives its powers from the

applicable laws one can also say that the powers gradually

transfer from parties to the arbitrator.7 It is because the

4 Ibid. Article 175 Statement from the Draft Digest of case Law on the Uncitral Model Law on International Commercial Arbitration, Pre-publication presented at Cologne RIZ/DIS Conference on march 3-4, 2005, para.99 (“Draft Digest”)6 Supreme Court (Bermuda), January 21, 1994, Skandia International Insurance Co v Mercantile & General Reinsurance Co (CLOUT case 127) court of appeal Hong Kong, July7, 1995 7 Redfern, A., and Hunter, M., Law and Practice of International Commercial Arbitration (London, Sweet and Maxwell,2004), p.278

7

parties in arbitration are firmly in charge of their affairs but

gradually power devolves on the arbitrator as proceedings.

Tribunal has different type of powers and they conferred then by

different means mainly tribunals has express powers to determine

the sufficiency of evidence. Tribunal can also confer its powers

from the arbitral rules, adhoc arbitrations and automatic rules

which are followed by institutional proceedings. UNCITRAL rules

provide vide range of powers to conduct the proceedings as they

consider appropriate provided that the principles of fairness are

adhered.8

Other than the express powers there are operational powers of

tribunal which are devolving by operation of law. For the

introduction of the Nigerian arbitration Act 9 refers to appoint

an expert on issues relating to proceedings.10 Same English

Arbitration Act, 1996 which provide the power to administer oath

to witnesses.11

JURISDICTION ISSUES:

Most of the time respondents object on the jurisdiction of the

arbitral tribunals the objections might be on several heads. They

may allege that there was no arbitration agreement between the

parties on dispute or that the arbitration agreement is void and

8 Art.15(1) of the UNCITRAL Arbitration Rules, Redfern, A, Ibid, p2799 Arbitration and Conciliation Act , CAP 19, LFN 199010 Kent, R. et al., Expert Witnesses in Arbitration And Litigation Proceedings, TDM Vol. 4, Issue 3, June 2007 at www.transnational-dispute-management.com (accessed on 29 December 2011) 11 English Arbitration Act 1996, S. 38(5)

8

some time it happens that they allege that the person who signed

the agreement has no authority to sign or the dispute is not

arbitral.12 When this kind of objections comes in front of

tribunal then the answer will be that the arbitration is most

effective form of dispute resolution and it is recognized that

the arbitral tribunals has jurisdiction to determine its

jurisdiction in the face of every kind of objections. But an

arbitrational tribunal must work within the powers and

jurisdictions which are conferred by the parties and one can say

that it must remain within its terms of reference and not exceed

it.13

CONCEPT OF COMPETENCE-COMPETENCE:

It is the general principal that the arbitrational tribunal has

the jurisdiction to determine its own jurisdiction.14 In section

30 of the Arbitration Act 1996 this principle is defined properly

as this general role is also discussed by Lord Collin in Dallah

real estate case. This power has conferred to tribunal to

overcome the problem where comes that the arbitration agreement

for example is invalid. Principle law gives the power to tribunal

for the motion of proceeding against the respondent who raised

the objections. Some time the arbitral tribunal lacks its

12 Jarvin, S., Objections to Jurisdictions, in Newman L. and Hill, R., (eds), The Leading Arbitrators Guide to International Arbitration, (2nd ed., Juris Publishing 2008). P.98.13 Art. V(1)(c ) of the Recognition and Enforcement of Foreign Arbitral Awards, 1958, (New York Convention) 14 Redfern, A., Supra, note 7, p.300.

9

authority to make findings.15 There are two main effects of the

competence-competence the positive effect is to determine its

conferral power weather it has jurisdiction to hear the dispute

and subsequently on the existence of the main contract.16 The

negative effect restricts the court’s functions and it provides

the opportunity of the court to determine its own jurisdiction

and also the validity of the arbitration agreement. The tribunal

has power to determine its own jurisdiction in its first instance

is tempered by granting the provisional status to tribunal which

is reviewable by the court.17 Courts have the powers and they

reserve these powers to enforce or to set aside the award after

its issuance.

In the case of Dallah Real Estate & Tourism Holding Co v Ministry of Religious

Affairs, Government of Pakistan the judgment was given by the Supreme

Court that the doctrine of competence-competence is the power of

the arbitral tribunal to determine its jurisdiction.

Question about jurisdiction is the preliminary matter for

arbitral tribunal to determine its jurisdiction.18 When a

tribunal ought to determine a dispute rather than a court is

subject to question whether the arbitration agreement exists and

its validity, weather the dispute lies within the scope of

15 Lew, J. et al, Comparative International Commercial Arbitration (the Hague,Kluwer Law, 2003) note 1, p.332 16 Jean Francois Poudret et al. Comparative Law of International Arbitration (2nd ed, 2007)[162]17 Doug Jones, Competence-Competence (2009) 75(1) Arbitration: The Journal by the Chartered Institution Of Arbitrations 56, 57. 18 Christstopher Brown Ltd v Genossenschaft Oesterreischer Waldbesitzer Holzwirtschaftsbetriebe Registrierte GmbH [1954] 1 Q.B 12, 13 (Devlin J).

10

arbitration agreement.19 By this kind of matters the term has

been used to determine whether on the matter of the construction

of the arbitration agreement a tribunal processes the hearing

jurisdiction.20 This determines that whether the tribunal has

power to hear the dispute which has already been determined in a

different forum.

In this reputed case the court clear that the competence-

competence is soli tribunal’s jurisdiction where tribunal thinks

to use this power and think that it is relevant there.21 It is

also mentioned that the tribunal are not the only judges who has

this jurisdiction whether it is legal or not there is an upper

hand authority that can review the tribunal’s judgments and also

have the power to enforce the decisions.22 The principle of

competence-competence enables tribunal to rule that an

arbitration agreement is invalid and without contradicting itself

issue an award which lacks its jurisdiction.23

There are some negative effects of the this doctrine also,

according to French approach in French law the principle of

19 Tibor Varady, John J Barcelo III and Arther T von Mehren International Commercial Arbitration- A Transnationl Perspective (3rd ed. 2006) 87.20 Ilias Bantekas, Australian year Book of International Law Volume 27 (2008) 193.Also in US Fire Insurance Co v National Gypsum Co, 101 F 3d 813 (2nd Cir 1996).21 “the tribunal’s own view of its jurisdiction has no legal or evidential value, when the issue is whether the tribunal had any legitimate authority in relation to the Government at all… The court may have regard to the reasoning and finding of the alleged arbitral tribunal, if they are helpful, but it is neither bound nor restricted by them” Dallah, supra note 1, at p30-31. 22 Dallah, supra note 1,at 22, referring to P.Fouchard, E.Gaillard, B.Goldman& J.Savage, Fouchard Gaillard Goldman on International Commercial Arbitration,659(1999).923

11

negative competence-competence was codified in French law which

defines it that when a dispute submitted to the tribunal under

the arbitration agreement that court declines its jurisdiction if

tribunal has not seized that matter and also decline when they

feel that the agreement is null and void.24

DOCTRINE OF SEPARABILITY:

In contract the doctrine of separability is separated from the

contract, it forms the part and termination of that contract.25

This doctrine of separability always follows the fact that the

arbitration agreement has the power to survive the nullity,

termination, repudiation or notation of the main contract. In the

western world the concept of separability did not recognized in

nation arbitration laws.26 For example at the time when the

arbitration agreements developed on the common laws and the

Arbitration Act 1889 was not enacted by English courts then the

scholars of common law had not been accepted this and refer it to

the concept of separability.27

24 FOUCHARD GOJDMAN, on International Commercial Arbitration, 661.88 (EmmanuelGaillard & John Savage eds. 1999

25 Alan Redfern, Martin Hunter, Law and Practice of International Commercial Arbitration (3rd ed, 1999) p154

26 Jean François Poudret et al. Comparative Law of International Arbitration (2nd ed, 2007) [168].

27 Arthur Gemmell, Western and Chinese Arbitration- The Arbitral Chain (2008) p87

12

In the practice of International arbitration, the doctrine of

separability gains its recognition in the form that it provides

autonomy to that people who are the parties of the contract.28

This doctrine gives the opportunity to the parties to contract to

achieve their right to sue. Now this concept of separability is

accepted in the world wide nations and in the arbitration

legislation and also recognized in the arbitration case laws and

in the decisions of the international courts.29

This is important to note that the arbitration clause empowers

the tribunal to determine the terms and conditions of the

contract and its implementation which is equal and similar to the

jurisdiction agreement that is why if the contract becomes null,

void or in some cases it becomes terminated then the validity of

the arbitration clause will not be affected at all.30

Model law high lights the concept of separability in its article

16(1) the arbitration clause which are the part of the contract

shall treated as the independent agreement other than all the

terms of the contract. The tribunal’s decision for null and void

shall not entail ipso jure for that arbitration clause. On the28 Emmanuel Gaillard, John Savage (eds), Fouchard, Gaillard, Goldman On International Commercial Arbitration2nd e.d 1999), [198].

29 This principle is known in France as ‘l-autonomie de la clause compromissoire’ In the U.S. it is also referred to as ‘severability’ or ‘autonomy’ of the arbitration clause.

30 Emmanuel Gaillard, John Savage, above n 13, [199]. For international law, UNCITRAL Model Law on International Commercial Arbitration Art. 16. For national legislation on separability see for instance, International Arbitration Act 1974 (Cth) Sch.2 Article 16(1).

13

legal order it is demanded that the arbitration should be safe

and the disputes which are related to the jurisdiction of the

tribunals must be determined by the recommended courts. This is

because to discourage the overlapping of the doctrine of

separability and competence-competence.31

The doctrine of separability provides the concept that the

arbitration clauses of the arbitration agreement in a contract is

totally different and opposite to the clauses and rules of the

basic and main contract.32 If any kind of dispute arises relating

to the validity or the existence of the main contract then the

arbitration clauses does not effect from this dispute even the

main contract becomes void and it will remain valid and binding

on the parties to the contract.33

SEAT OF ARBITRATOR:

The Arbitral Tribunal had awarded with the place or seat of

arbitration in ICC Arbitration.34 All the members of this

tribunal have a great reputed and well experienced international31 Jean François Poudret et al, above n 11, [164].

32 The principle is also known as ‘Kompetenz-Kompetenz’ in German or ‘Competence surla Competence’ in French.

33 A. Redfern and M. Hunter, Law and Practice of International Commercial Arbitration, Student edn (New York: Oxford University Press, 2003), p.154; R.J. Patterson, “Dispute Resolution in a World of Alternatives” (1988) 37 Cath. U.L. Rev. 591 at 593.

34 ICC Arbitration No. 10’623, Decision of 7 December 2001 (E. Gaillard, chairman, P. Bernardini, N. Bunni, arbitrators), note A. Crivellaro, ASA Bull. 1/2003, p. 59 and p.82.

14

arbitrator. The basic purpose of this tribunal is to solve the

problems and issues which has risen in the international

arbitration. The arbitrators always tried to solve all the

matters and try to overcome the issues. The rules which are

considered as the general principles of international arbitration

are always revised and recall by the arbitrators in their

findings.

There is a difference between the word ‘place’ and ‘seat’ of

arbitration and the place where the proceedings of the tribunal

has been located. So many inexperienced arbitrators and even the

experienced one are confused about the term place or seat of the

arbitration but basically the term place or seat of arbitration

is does not mean that it is the physical location but the

connection or the link of the giving order of the State where

that seat is situated. This concept or principle is also accepted

about the hearing of the seat of the arbitration for so many

other reasons or for the convenience.35

If the parties chose the arbitration then it is bounded by the

lex arbitri to give respect to that choice which might be considered

by an Arbitral Tribunal as the condition and which is properly

applied.

35 Art.14 ICC Rules; Art. 16 LCIA Rules, Art. 16, UNCITRAL Arbitration Rules. For recent case law: Australia: Raguz v. Sullivan, ASA Bull. 2/2002, p. 335 [Confirming that all TAS proceedings have their place of arbitration in Lausanne, Switzerland], 353, Switzerland: ASA Bull. 1991, p. 269. England: Privy Council, The Bay Hotel and Resort Ltd. v. Cavalier Constructions Co. Ltd and Anr, 16 July 2001, P.C. Lords Nicholls, Cooke, Clyde, Hutton and Millet, unreported; summarized by Stewart R. Shackleton, Annual Review of English Judicial Decisions on Arbitration, [2002] Int. A.L.R. 206, 213.

15

IMPORTANCE OF THE SEAT

The concept of seat of arbitration is recognized by the most of

the legal system which is basically means that the jurisdiction

of the arbitration.36 This is basically a link or connection of

the giving order of the State where that seat is basically

situated. The seat will also determine the extent to which the

national court will support or intervene in the arbitral process.

The matter of situation of the arbitration seat is decided by the

parties to the arbitration agreement.37 The seat of the

arbitration will be only one in any country but either it can be

take place in several countries for hearing.38 The arbitral award

of the arbitration seat may be challenged and the degree may be

revised and determined according to the arbitration seat but in

the same time only the court has the power to hear the appeal of

seat of arbitration.39 When any state is selected as the place of

the arbitration seat then the parties have to follow the national

laws of that state for the process which are applicable to

arbitration.40

LONDON SEAT:In England, the provision of arbitration is made according to the

provisions which are mentioned in the Arbitration Act 1996. The main36 Fladgate LLP by Heather Neilson. www.imakenews.com/iln/e_article001393038.cfm?x=b11,0,w accessed on 02-01- 2012)37 Ibid. accessed on 02-02-201238 Fladgate LLP by Heather Neilson. www.imakenews.com/iln/e_article001393038.cfm?x=b11,0,w accessed on (02-01- 2012)39 Ibid. accessed on 02-01-201140 Fladgate LLP by Heather Neilson. www.imakenews.com/iln/e_article001393038.cfm?x=b11,0,w (accessed on 04-01- 2012)

16

purpose behind it is to make that law very useful and easy to access

for people and to make this English arbitration law equal to the laws

of other countries to make the England as the center of commercial

arbitration.41The principle which is mentioned in the Arbitration act

1996 that major object of tribunal is to provide fair justice to

parties without unnecessary delay and extra expanses, in the contract

parties should be free to adopt the procedure that how to resolve the

matter and what measures to be taken for safeguard in the public

interest, and cannot go beyond in 1996 act.42

In London, the Arbitration is very well reputed among the

commercial world and due to this reputation many of the parties

desires that their disputes should be determined in London either

they have any connection with London or not and either their

contract performed in London or not.40 They have full trust on

the Arbitration in London and they believe that their disputes

will be settled or solved fairly and on merits. The arbitral

tribunal has the power to determine its own jurisdiction. The

power of tribunal to determine its own jurisdiction, i.e.

competence-competence is similar to the arbitral agreement and

meanwhile the doctrine of separability is necessary to determine

its own jurisdiction.

The tribunal in arbitration maters might rule on its jurisdiction

where the objections come on the validity of the agreement. For

the validity of the contract the clause which normally part of

41 Ibid.04-01-201142 Ibid. Fladgate LLP by Heather Neilson (04-01-2012)

17

the contract are treated as the separate agreement from the

contract. The decision of the tribunal where contract are

announced as null and void is not entail ipso jure in

arbitrational clause.43

In a reputed case it is also the case of the arbitration

agreement between the parties where the parties are in dispute

and the court of appeal found in this case that decision of the

Chamber judges had based on the principle of domestic arbitration

act rather than Model law was enacted by International Commercial

Arbitration Act and the Statutes of Ontario, 1988, c.30. In the

judgment court also cited the article 16 who provide the power to

tribunal for its own jurisdiction. Court also discussed article 8

that stops the court to determine the agreement null and void in

some situations.44

REVIEW OF SCHOLARLY OPINION:

Julian D.M. Lew, Loukas A. Mistelis and Stefan M. Kroll have the

opinion that the arbitral tribunal has the inherent power to

determine its own jurisdiction.45 They considered that the

doctrine of separability enhance the power of the tribunal to

determine its own jurisdiction.

43 Fladgate LLP by Heather Neilson. www.imakenews.com/iln/e_article001393038.cfm?x=b11,0,w (accessed in 06-01- 2012)44 Rio Algom Limited v. Sammi Steel Co. Ontario Court of Justice-

General Division, March 1st, 1991,45 CASE LAW ON UNCITRAL TEXTS, http://www.uncitral.org/, Case 18. (accessed on04-01-2012)

18

Alan Redfern and Martin Hunter stated that to determine the

jurisdiction it is very important that firstly the tribunal must

assume such jurisdiction.46 The opinions of Alan Redfern and

Martin Hunter creates the contradiction that firstly they said

that the tribunal has the inherited power to determine its

jurisdiction and secondly they said that when the questions

arises on the power of the tribunal to determine its own

jurisdiction for the validation of the contract then it is

facilitated by the doctrine of separability.

ARBITRATION AGREEMENT

Arbitration agreement is based on arbitration this agreement is

for the submission of present and future disputes of arbitration.

In other words it is an agreement between the parties who has in

legal relationship they come in an agreement to solve the issue

by arbitration that could be controversial or not.47 The states

who recognize the arbitration comes to an agreement between the

parties who under take to come on the agreement to sole the

arbitral issue which has arisen or may arise between them on

legal relationship, weather they have controversy on it or not

and that issue is resolvable by the procedure of arbitration.48

Discussing about the Dallah case agreement court dismissed the

first submission that the material in agreement was not

46 .Redfern and Hunter, Law and Practice of International Commercial Arbitration, Student edn, 2003.47 www.unctad.org/en/docs/edmmisc232add39_en.pdf (accessed on 04-01-2012)48 International Commercial Arbitration, The Arbitration Agreement, United Nations New York and Geneva, 2005

19

sufficient to justify the conclusion of tribunal. In the

agreement both parties were agreed to determine French law but it

was not mentioned that the applicable law and the law as the seat

of arbitration. In French law it agreement would be bind if the

parties of arbitration has the common intention which is bound by

the agreement as mentioned in the arbitration clause. The

intention of parties about the agreement determined by the facts

of case. During the proceeding court check the involvement of the

parties while negotiation and performance and if this method

applies court terminate the underlying agreement.49

The New York Convention accepts the principle to select the law

of own choice and explains that the parties are free to select

and determine the laws for their contract which are applicable to

the arbitration agreement.50

RE-EXAMINATION POWERS

The arbitration agreement may be re-examined if any conflict

arises between any issues related to the agreement. A major

reason for the confusion which has prevailed over the past years

in the area of the law applicable to the arbitration agreement

stems from the fact that very often, basic distinctions between

essential issues and elements relating to the validity of

arbitration agreements are neglected, misunderstood or not49 Dallah, supra note 1,at 17, this is the test set out in Cour d’Appel,[CA][regional court of appeal] Paris, Oct.21, 1983 and affirmed in Cour d’Appel, [CA][regional court of appeal] Paris, Jan. 11, 199050 www.unctad.org/en/docs/edmmisc232add39 en.pdf accessed on 06-01-2012

20

distinctly perceived by arbitral tribunals. In some issues

parties can appeal for the arbitrates also they can apply under

article 24 of arbitration act 1996 for the removal of arbitrator

where the parties feel that the he does not have the jurisdiction

not qualified to hear the case or physically or mentally not fit

for hearing and deciding the dispute.51 Where parties feel that

the tribunal has no jurisdiction to decide the matter or where

tribunal made the award on no merits.52 On the serious

irregularity parties can apply for reexamination of the decision

on the bases of where tribunal does not comply section 33 or

tribunal exceed its powers and fail to conceder all the issues.53

ANALYSIS

Competence-competence is the principle by which tribunal acquire

its jurisdiction to decide the matter in Dallah v Government of

Pakistan this principle has discussed this principle actually

gives the power to determine the jurisdiction to tribunal but

where the matter changes is that the tribunal does not have the

exclusive powers to do so. There is another court which is

superior to that has the power to re examine its powers and that

court of seat also have the powers to set aside the tribunal’s

judgment and to enforce its own superior judgment. In the

judgment of Dallah case Lord Collins clearly identified that

tribunal has that power but exceptions are always there so the

51 Arbitration Act 1996 section 24(1)52 Ibid. section 67(1)53 Ibid. section 68(2)

21

separability of agreement from the main contract was accepted and

the Supreme Court denied the decision of French tribunal and the

government of Pakistan had taken the favor of this principle.

BIBLOGRAPHY

Books

English Arbitration Act 1996

Redfern and M. Hunter, Law and Practice of International Commercial

Arbitration, Student edn (New York: Oxford University Press, 2003)

R.J. Patterson, “Dispute Resolution in a World of Alternatives”

(1988) 37 Cath.U.L.

22

Jean François Poudret et al. Comparative Law of International

Arbitration (2nd ed, 2007)

Articles

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION,

UNITED NATIONS 1994, United Nation Publication V.06-53866- May

2006-750,

ARBITRATION AND ADR RULES, Imprimerie de l’Orangerie.

Trappes(78). Printed in France in September 2011

The International Commercial Arbitration Act, Article 16 of the

Statutes of Saskatchewan, 1988-89

Statement from the Draft Digest of case Law on the Uncitral

Model Law on International Commercial Arbitration, Pre-

publication presented at Cologne RIZ/DIS Conference on march 3-4,

2005

Redfern, A., and Hunter, M., Law and Practice of International

Commercial Arbitration (London, Sweet and Maxwell,2004),

Kent, R. et al., Expert Witnesses in Arbitration And Litigation

Proceedings, TDM Vol. 4, Issue 3, June 2007 at www.transnational-

dispute-management.com

23

Jarvin, S., Objections to Jurisdictions, in Newman L. and Hill,

R., (eds), The Leading Arbitrators Guide to International

Arbitration, (2nd ed., Juris Publishing 2008).

The Recognition and Enforcement of Foreign Arbitral Awards, 1958,

(New York Convention)

Lew, J. et al, Comparative International Commercial Arbitration

(the Hague, Kluwer Law, 2003)

Jean Francois Poudret et al. Comparative Law of International

Arbitration (2nd ed, 2007)

Doug Jones, Competence-Competence (2009) Arbitration: The Journal by the

Chartered Institution of Arbitrations

Tibor Varady, John J Barcelo III and Arther T von Mehren

International Commercial Arbitration- A Transnationl Perspective

(3rd ed. 2006)

Ilias Bantekas, Australian year Book of International Law Volume 27 (2008)

FOUCHARD GOJDMAN, on International Commercial Arbitration, 661.88

(Emmanuel Gaillard & John Savage eds. 1999

24

Arthur Gemmell, Western and Chinese Arbitration- The Arbitral

Chain (2008)

Emmanuel Gaillard, John Savage (eds), Fouchard, Gaillard, Goldman On

International Commercial Arbitration (2nd ed 1999),

International Commercial Arbitration, The Arbitration Agreement,

United Nations New York and Geneva, 2005

Cases

Dallah Real Estate & Tourism Holding Co v Pakistan [2010] UKSC 46

(SC)

Supreme Court (Bermuda), January 21, 1994, Skandia International

Insurance Co v Mercantile & General Reinsurance Co (CLOUT case 127) court of

appeal Hong Kong, July 7, 1995

Christstopher Brown Ltd v Genossenschaft Oesterreischer Waldbesitzer

Holzwirtschaftsbetriebe Registrierte GmbH [1954] 1 Q.B 12, 13 (Devlin J).

Fire Insurance Co v National Gypsum Co, 101 F 3d 813 (2nd Cir 1996).

Raguz v. Sullivan, ASA Bull. 2/2002

The Bay Hotel and Resort Ltd. v. Cavalier Constructions Co. Ltd and Anr, 16 July

2001, P.C. Lords Nicholls, Cooke, Clyde, Hutton and Millet

25

Rio Algom Limited v. Sammi Steel Co. Ontario Court of Justice-General

Division, March 1st, 1991,

Case Law on Uncitral Texts, http://www.uncitral.org/, Case 18

26