Lord Thomas of Cwmgiedd describes the attitude that courts have towards arbitration succinctly: “Maximum support. Minimum interference”[1]. That surely is the ideal. But in practice it is not always easy to draw the line between support and interference. As leading concepts in commercial arbitration, the principles of separability and competence-competence pose important challenges to this division. They raise questions about the relationship between courts and arbitral tribunals, legitimacy and efficiency, party autonomy and paternalism.
First, this text will provide an overview of separability and competence-competence, analysing the functions they serve and the ends they achieve in international commercial arbitration (I). Then, it will offer a brief comparison between the French (II), English (III), German (IV) and US (V) law approaches to competence-competence. In so doing, it will be argued that the way in which this principle has been transposed into national legislation reflects the weight that these different systems attach to values such as party autonomy, freedom of contract, legitimacy and efficacy. Lastly, the conclusion will praise the English law approach as the preferable one, since it strikes the optimal balance between the above-mentioned values (VI).
(I) Separability and competence-competence: an overview
I. Separability
The principle of separability holds that an arbitration agreement is distinct and independent from the main contract which contains it. Thus, when parties enter into a transaction – e.g. a contract of sale – which includes an arbitration agreement, they are held to have entered into two separate agreements: (i) the commercial transaction itself (i.e. the sale) and (ii) the arbitration agreement attached to it.
The main function of the principle of separability is to shield the arbitration clause from any attack directed against the main contract. Since the arbitration clause is separate and distinct from the main contract, a challenge to the latter will not automatically impact the former[2]. As Lord Hoffmann put it: “The principle of separability […] means that the invalidity or rescission of the main contract does not necessarily entail the invalidity or rescission of the arbitration agreement. The arbitration agreement must be treated as a ‘distinct agreement’ and can be void or voidable only on grounds which relate directly to the arbitration agreement”[3]. For example, if a party alleges that the contract of sale is void for misrepresentation, this does not mean that the challenge automatically extends to the arbitration clause as well. If the party wants to assert the invalidity of the arbitration clause, it must bring in evidence of misrepresentation directly related to the clause itself. The logical consequence of this is that, since the arbitration clause is presumed to be valid, it will be the arbitration tribunal who decides if the challenge to the contract itself is founded.
From this follows another vital function of the separability principle. Suppose the arbitration tribunal decides that the contract is indeed void for misrepresentation. Since the arbitration clause “survives” notwithstanding the invalidity of the contract, the arbitration tribunal can still exercise jurisdiction in respect of claims adjacent to the contract – for example, claims in tort or restitution which are not contractual in nature but which flow from the contractual relationship between the parties[4]. This has been made clear by Colman J in Vee Network v Econet Wireless: “If […] an arbitrator determines that the matrix contract is, for example, void ab initio by reason of illegality and it is not in issue whether the arbitration agreement is also illegal and void, the tribunal can continue to exercise such jurisdiction under the arbitration agreement as its scope permits. For example, if there were an alternative claim in tort or for restitution which was within the scope of the clause, the tribunal would continue to have jurisdiction conclusively to determine that claim”[5].
This is especially important since English law, like most modern legal systems, supports a very wide, all-encompassing interpretation of arbitration and jurisdiction clauses: the parties are held to have intended all matters between them to be within the ambit of the clause (even those claims in tort and restitution). This came to be known as the “one-stop shop” presumption. As Lord Hoffmann explained: “The parties have entered into a relationship […] which may give rise to disputes. They want those disputes decided by a tribunal which they have chosen […]. If one accepts that this is the purpose of an arbitration clause, its construction must be influenced by whether the parties, as rational businessmen, were likely to have intended that only some of the questions arising out of their relationship were to be submitted to arbitration and others were to be decided by the national courts”[6]. The separability of an arbitration clause can therefore be understood as a form of preserving the jurisdiction of the arbitration tribunal outside the parameters of the contractual matrix.
The principle of separation can seem counterintuitive. After all, fragmenting contracts is not commonplace and can be said to go against the general trend of analysing and interpreting clauses in the context of the contract as a whole. However, I argue that if one looks at the principles and rationale behind arbitration clauses, the reason why they are considered separate from the main contract and subject to a different regime becomes clear.
Arbitration clauses are an expression of party autonomy: they give effect to the parties’ desire to have their disputes resolved by a forum of their choosing. In electing arbitration as a form of dispute resolution, in some ways the parties impliedly deviate from their art 6 ECHR right to a trial. An arbitration clause is effectively a waiver to access the full benefits and entitlements enshrined in art 6. For example, art 6 guarantees “a fair and public hearing within a reasonable time”. However, the process of arbitration does not fully comply with this standard: arbitration is not public, it has its own procedural rules regarding fairness and does not necessarily guarantee a reasonably timely resolution of disputes. Therefore, the implied consequence of including an arbitration clause in the contract is a deviation from these entitlements. Parties are, of course, at liberty to renounce these benefits, but their decision to do so cannot be treated lightly. Since arbitration clauses represent a decision to forfeit the entitlements under art 6, it is sensible for the courts to treat these clauses as an expression of informed and solid consent. They cannot be treated just like any other clause in the contract: they are evidence of a particularly important expression of autonomy. In other words, given the fact that arbitration clauses partially take away an important right, it makes sense to assume that the parties have given it sufficient thought – therefore, it also makes sense to demand a separate, specific ground which challenges this consent independent of any challenge levied against the contract itself.
Bermann makes a similar point: he argues that defects in the arbitration clause itself are seen to impugn the parties’ consent to arbitration more than defects in the clauses which set out the substantive rights and obligations[7]. His argument is that if one sets out to prove that the parties did not consent to arbitration – i.e. that the arbitration clause is void – one needs to challenge the clause which expresses that consent itself, and not just the contract as a whole. He thus concedes that separability has “strong intuitive appeal”[8].
2. Competence-competence
Plainly put, the principle of competence-competence states that the arbitration tribunal has jurisdiction to decide upon its own jurisdiction. As article 16(1) of the UNCITRAL Model Law on International Commercial Arbitration mentions, “[t]he arbitral tribunal shall have the power to rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement”. Therefore, if one party alleges that the arbitration agreement is void – i.e. that the arbitration tribunal does not have jurisdiction – it must raise this concern before the arbitration tribunal itself (and not the courts). It follows that the question “does the arbitration tribunal have jurisdiction/is the arbitration agreement valid?” has to be answered by the arbitral ribunal itself. Different states have different approaches to this principle (as it will be shown below), but the general position is that, if one party appears before the national court and claims that the arbitration clause is void, the court will decline to exercise jurisdiction and will refer the party to the arbitration tribunal to determine whether the arbitration clause is valid.
Like the principle of separability, competence-competence can seem counter-intuitive at first. One can argue that it is legally dubious to let a tribunal decide upon its own jurisdiction. Furthermore, one can also make the point that if the arbitration tribunal rules that the arbitration clause is invalid, it means that the arbitration tribunal never had jurisdiction to make any ruling at all, including the ruling about its own competence.
However, there are two things worth noting. First, competence-competence acts like a presumption, not as an irrefutable matter of fact. We presume that the arbitration tribunal has jurisdiction in order to let it evaluate the validity of the arbitration clause. If the arbitral tribunal decides that it does not have, in fact, jurisdiction, the presumption of competence is rebutted, and the parties will be free to resolve any substantive disputes before national courts. Second, even if the tribunal decides that it does have jurisdiction, this conclusion is not irrevocable either: the parties can, in certain circumstances and under certain rules, challenge the arbitration tribunal’s decision on the question of its competence before national courts. Therefore, competence-competence is not an illogical, overly empowering weapon which confers unlimited power to the arbitration tribunal. It is a presumption which gives effect to freedom of contract and party autonomy by allowing the forum chosen by the parties to have the first (but not necessarily the final) say.
The next sections briefly analyse the different approaches taken by the French, English, German and US legislation in respect of competence-competence. The main question addressed in the following section concerns the situation in which one party, despite being bound by an arbitration agreement, appears before the national court and challenges the validity of the arbitration clause. The way courts handle this claim varies across the four jurisdictions mentioned.
(II) The French approach
Under French law, the principle of competence-competence is recognized by article 1448 of the French Code of Civil Procedure: “when a dispute subject to an arbitration agreement is brought before a court, such court shall decline jurisdiction […]”[9]. This is a straight-forward enunciation of the principle of competence-competence. The rule in article 1448 is then qualified by two cumulative exceptions: “[…] except if an arbitral tribunal has not yet been seized of the dispute and if the arbitration agreement is manifestly void or manifestly not applicable”.
French law recognizes both positive and negative competence-competence: positive in the sense that the arbitration tribunal can decide upon its own jurisdiction, and negative in so far as the courts are prevented from doing the same thing – they cannot look into the issue of the arbitral tribunal’s jurisdiction unless the two cumulative exceptions mentioned above are met. Unless the arbitral tribunal has been constituted andunless the arbitration agreement is “manifestly void or manifestly not applicable”, the arbitral tribunal will have exclusive jurisdiction to determine its own competence.
This is a very strong approach to the principle of competence-competence, since it almost takes judicial intervention completely out of the picture in the initial stage of the inquiry. First, “manifestly null and manifestly not applicable” is a very high standard for the court’s intervention. It is inflexible and requires the highest standard of proof, meaning that it will seldomly be satisfied. Second, the two exceptions in article 1448 are cumulative: both have to apply in order to trigger judicial involvement. This means that, even if the arbitration clause is manifestly null and manifestly not applicable, the courts will still not intervene if the arbitral tribunal has been constituted.
However, after the arbitration tribunal has ruled on its own jurisdiction, French law allows the parties to challenge the tribunal’s finding at the stage of enforcement. Therefore, if the arbitral tribunal finds that the arbitration clause is valid, the substantive proceedings will go ahead. When the arbitration tribunal gives an award (either a final award on the merits or a partial award on the question of jurisdiction), a party can challenge the award before the national courts and ask them not to enforce it on the basis that, contrary to the arbitral tribunal’s finding, the arbitration agreement was void. Because the principle of competence-competence prevented parties from challenging the jurisdiction of the arbitration tribunal at the initial stage, they are allowed to bring this challenge before the courts at the enforcement stage. When French courts are presented with this claim, they will make a full inquiry into the issue and will judge the question of jurisdiction “de novo”[10]. The courts will not be bound by the arbitral tribunal’s prior finding in respect of its own jurisdiction, nor will they need to defer to the arbitral tribunal or presume that the arbitral tribunal was right.
As Barcelo claims, the French approach has two major benefits: it gives full effect to the principle of competence-competence (in its truest and most straight-forward form) and it also deters parties from trying to obstruct or delay arbitration by commencing judicial proceedings from the start[11]. That is surely true, but it is submitted that the most important rationale behind the French approach is respect for party autonomy and freedom of contract: by refusing to look at the issue of jurisdiction at the initial stages, French courts presume that the parties validly exercised their right to enter into deals freely, gave full and informed consent in respect to all contractual clauses and willingly expressed their wish to have their dispute resolved by their chosen forum. This presumption proves that French law adopts a liberal view on arbitration: it shies away from paternalistic incursions into party autonomy.
However, the downside is that the French approach results in high efficiency costs[12]. If the arbitration clause is less than manifestly null, the arbitration will go ahead, consuming time and money which will be wasted if, at the subsequent enforcement stage, the French courts will decide that that the clause was actually void. The argument here is that avoiding court intervention at the initial stage but allowing it at the enforcement stage is arguably a waste of resources.
Although a valid concern in general, the problem of efficiency costs should not be overstated. First, because the duration and the financial implications are more or less issues which the parties can be taken to be aware of when they opt for arbitration. This is so especially since the parties are free to choose the place of arbitration and the law applicable to the merits, meaning they can avoid French law if they consider the efficiency costs of the French approach to be excessive. Second, party autonomy also presupposes that parties are free to take the risk of a less timely and more expensive dispute resolution – they should be free to opt for a less cost-efficient procedure if they so desire.
(III) The English approach
Competence-competence is recognized by English law under section 30(1) of the English Arbitration Act 1996: “Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to (a) whether there is a valid arbitration agreement, (b) whether the tribunal is properly constituted, and (c) what matters have been submitted to arbitration in accordance with the arbitration agreement”.
As clear from the statutory language, English law recognizes the positive dimension of the competence-competence principle: „the arbitral tribunal may rule on its own substantive jurisdiction”. As stated in the caselaw, the standard which triggers the application of the principle is „good arguable cause”[13]: if there is a good arguable cause that an arbitration agreement exists, the courts will refer the parties to arbitration and let the arbitral tribunal decide on the question of its jurisdiction.
However, unlike French law, English law does not recognize the negative dimension of competence-competence. Under English law, while the tribunal decides upon its competence, the courts are notprevented from doing the same thing simultaneously: rather, “the court may […] determine any question as to the substantive jurisdiction of the tribunal”[14] during a preliminary hearing, simultaneously with the arbitration tribunal.
Just like the French approach, English law recognizes, at the enforcement stage, the parties’ right to challenge the conclusion reached by the arbitral tribunal in respect of its own jurisdiction. Exactly like French courts, English courts will not consider themselves bound by the tribunal’s findings and will consider the matter afresh[15]. In explaining the English law approach at the enforcement stage, Lord Mance made an analogy with the game of tennis: the arbitral tribunal’s finding regarding its own jurisdiction (at the initial stage) is a useful starting point for the court’s assessment at the enforcement stage, but it is by no means a decisive conclusion: it is the advantage of service, not a 30-0 lead”[16]. In other words, English courts give credit to the finding of the arbitral tribunal, but not decisively or even strongly: they will decide the matter de novo.
One final thing to note about English law is that it does not adopt the “manifestly void or manifestly not applicable” language of French law. The “good arguable cause” standard is much more flexible. Arguably, if an arbitration clause is “very likely void”, the courts will exercise jurisdiction under English law, whereas French courts would not do the same since this falls short of the “manifestly void” standard.
(IV) The German approach
The German version of competence-competence sits somewhere in between the French and the English approaches. Section 1032(1) of the German Code of Civil Procedure (ZPO), mentions that “a court before which an action is brought in a matter which is the subject of an arbitration agreement shall […] reject the action as inadmissible unless the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed”[17]. This is further qualified by section 1032(2), which mentions that: “Prior to the constitution of the arbitral tribunal, an application may be made to the court to determine whether or not arbitration is admissible”[18].
The German implementation of the competence-competence principle is similar to the French one in what concerns the standard for assessing the existence of an arbitration agreement. The French Code of Civil Procedure uses the words “manifestly void or manifestly not applicable”; German legislation uses a similar expression: “null and void, inoperative or incapable of being performed”. Nevertheless, two things are worth mentioning: first, by omitting the word “manifestly”, the German standard is lower, which means that courts have a more flexible window for intervention. Second, the courts are also permitted to hear a claim not just when the agreement is void and inapplicable, but also when it is “inoperative or incapable of being performed”, grounds which would not trigger the jurisdiction of French courts. Therefore, although the statutory provisions are textually similar, German legislation is more permissive towards courts.
The German competence-competence is similar to its English counterpart in so far as both systems allow for parallelism. Both English and German courts can hear a claim in respect of the validity of an arbitration agreement at the same time as the arbitration tribunal itself. By allowing for parallelism, neither system affords exclusive jurisdiction to the arbitration tribunal.
Bermann praises the German version of competence-competence for the same reasons why he criticises the French one: efficacy and costs[19]. He claims that by allowing for parallelism, the process is more efficient and timelier, avoiding a waste of resources.
Bermann’s argument is valid. However, I would respectfully argue that it misses the bigger point. The fundamental flaw of the German understanding of competence-competence is that it dilutes the rationale behind it to such a great extent, that the principle loses its value. Section 1032(1) of the ZPO borrows from the English and French legislation only those features which increase court intervention. By excluding the word “manifestly”, adding two additional grounds for intervention (“inoperative or incapable of being performed”) and by allowing for parallelism, German legislation creates a medium in which competence-competence is very narrow. One may validly question how much German law really upholds the very essence of competence-competence, since courts are given a free pass for intervention with ease. The approach may be very efficient, but its legitimacy is diluted.
(V) The US approach
US law has a very convoluted approach to competence-competence. In a nutshell, if a party wants to bring a claim alleging that the arbitration agreement is void, the process will unfold as follows:
At the first stage, the US courts will decide “substantive arbitrability issues”, which include the existence, validity and scope of the arbitration agreement, unless there is “clear and unmistakable” evidence that the parties intended the contrary[20]. The arbitration tribunal is free to decide “procedural arbitrability issues”, which include aspects such as timing, notice, waiver and estoppel[21].
Then, at stage two, in the spirit of competence-competence, the arbitration tribunal will get to decide for itself the existence and validity of the arbitration agreement (i.e. what the US courts have already decided at stage one). In theory, the arbitral tribunal is not bound by the courts’ decision, but in practice the tribunal will almost always uphold it. This is because of art V(I)(e) of the New York Convention 1958[22], which mentions that recognition and enforcement of an award may be denied if the award has been set aside by the courts of the country where the award was made. In this case, if the arbitral tribunal’s award states that it has jurisdiction, contradicting the US courts’ assessment at the previous stage, the award might be denied enforcement both in the US and elsewhere in states which have ratified the New York Convention. Therefore, at stage two, the arbitration tribunal will almost always uphold the court’s decision at stage one in respect of validity and scope because otherwise the tribunal risks to have the award denied enforcement[23].
Just like with the French, English and German courts, at stage three US courts can review the findings of the arbitral tribunal in respect of its own jurisdiction.
Summarizing this process, Cook concludes: “In this way, [US law] calls into question fundamental concepts of positive kompetenz-kompetenz without even contemplating negative kompetenz-kompetenz”[24].
With respect, the US approach is the most problematic one out of the four. First, it is unclear what the difference between “substantive” and “procedural” arbitrability issues is. One example is capacity: is that a substantive or a procedural aspect? Another one is consent: does one’s alleged lack of consent qualify as a substantive or as a procedural defect? A further example is the issue of legality: what if the arbitration agreement deals with a matter which cannot legally be a subject of arbitration (such as IP and antitrust issues)? Does that fall to be resolved by the tribunal or by the court?
Second, even if the line between “substantive” and “procedural” arbitrability issues were clear, it is uncertain why we should draw it in the first place. If competence-competence is truly an expression of party autonomy and intention, it is uncertain why we need to split up elements this way. In other words, why are timing, notice and waiver aspects which we allow the forum chosen by the parties to decide upon, but we drift away from the parties’ presumed intention and let courts decide on matters such as the existence and validity of the clause? If arbitration clauses reflect the autonomy of the parties, they should be taken to do so in their entirety, not just in respect of some elements.
Third, even if we accept that the separation is clear and even if we further accept that it should be made, the second stage of the inquiry remains unnecessary. The fact that the arbitral tribunal is allowed to rule on the question of its own competence at stage two (after the court has already decided at stage one) is an illusionary implementation of the competence-competence principle: it is a fictional competence, not a real one. As mentioned above, if the tribunal deviates from the court’s assessment in respect of jurisdiction, the final award may be denied enforcement, which means that the tribunal is heavily constrained in its decision. This is not a real upholding of competence-competence, because it goes against the rationale of having the principle in the first place. If autonomous consenting parties elected for an arbitration tribunal to resolve their disputes (including the question of whether the arbitration agreement is valid), letting the courts decide first, then creating the illusion that the tribunal also has a real say (when in fact it does not) and then allowing for courts’ intervention yet again at stage three is arguably contrary to the essence of arbitration, freedom of contract and party autonomy.
However, by far the greatest issue with the US approach is that it arguably does not give effect to competence-competence at all. By allowing the courts to decide upon the validity and scope of an arbitration clause, US law presumes that the arbitrational tribunal does not have competence-competence[25]. US courts explain this presumption by linking it to party intention: under American law parties are presumed to have intended that disputes about the arbitral tribunal’s jurisdiction to be decided by courts. The main flaw with this is its lack of principled justification. Why are parties who have elected to avoid litigation by opting for arbitration presumed to desire court intervention? The logical approach would be to presume that parties who have chosen arbitration want to limit the courts’ intervention as much as possible. Yet US law does the exact opposite: it presupposes that pro-arbitration parties actually intended for judicial intervention, which is a fallacy.
A further related issue with the US law stance against competence-competence is that it shifts the burden of proof. Whereas under French law the party who advocates for judicial intervention has to prove that the arbitration clause is “manifestly void or manifestly not applicable”, under US law the party who advocates for arbitration has to bring in “clear and unmistaken” evidence. This is unjustified to place the burden on the party who wants to obey by the seemingly valid clause of the contract. The burden should be on the party denying validity, not the one supporting it.
One explanation for limiting arbitration this way could be a lingering suspicion of arbitration in general. The US Court of Appeals of the Second Circuit explained: “I cannot understand the process of reasoning by which any court can leave to the unfettered discretion of an arbitrator the determination of whether there is any duty to arbitrate. I am even more mystified that a court could permit such unrestrained power to be exercised by the very person who will profit by deciding that an obligation to arbitrate survives, thus ensuring his own business. It is too much to expect even the most fairminded arbitrator to be impartial when it comes to determining the extent of his own profit. We do not let judges make decisions which fix the extent of their fees. . . . How, then, can we shut our eyes to the obvious self-interest of an arbitrator?”[26]
The increased judicial intervention of US courts seems to support the above pledge for scepticism vis a visarbitration. The consequence is unfortunate, however. The US approach trades efficacy and legitimacy for paternalism, and the result is a loss for arbitration.
(VI) Conclusion
Every system mentioned above embodies a compromise between upholding party autonomy, avoiding a waste of resources and ensuring the legitimacy and efficacy of the arbitral process. Drawing the line between these is not an easy thing to do, but ultimately the shape that it takes speaks to a judicial system’s priorities.
Far from being perfect, the English approach does seem to strike the right balance between these competing values.
Its most notable achievement is the “good arguable cause” standard. It avoids the rigid language of the French “manifestly void”, thus allowing for more flexibility. If there is a “good arguable cause” that the arbitration agreement is valid, the courts will refer the parties to arbitration. But, since the courts are not constrained by inflexible formulations, they have a wider scope for interpretation. This flexible interpretation means that the English approach strikes a sensible balance between party autonomy and the need to manage resources efficiently: the parties still have a very good chance of being referred to arbitration, but the courts reserve the right not to allow for this in situations where there is a high risk that the arbitration clause is void. While French courts can invalidate an arbitration clause at the enforcement stage and thus render the whole lengthy and expensive arbitration process useless, English courts are seldomly in that position, since they are more flexible in their approach at stage one.
A second benefit of the English approach is parallelism. Without being an incursion into party autonomy (since the parties can appear before the tribunal in parallel with the court’s review of the clause), this represents a sound safety net. Unlike French courts, English courts do not hold off their verdict until the enforcement stage. And unlike the US courts, they do not emit judgement too soon (i.e. before the arbitral tribunal) either: they evaluate the arbitration clause simultaneously with the tribunal, thus saving time and avoiding paternalist breaches of the parties’ liberty of choice at the same time.
If the ideal position of courts vis-à-vis arbitration is “maximum support, minimum interference”, then English courts come closest to Lord Thomas of Cwmgiedd’s utopia.
[1] Lord Thomas CJ, Commercial Dispute Resolution: Courts and Arbitration, (6 April 2017, Beijing) at [25].
[2] Under English Law, there are two exceptions to this rule: forgery and lack of authority. These are the only claims which, if proven on the facts of the case, will render both the main contract and the arbitration clause void. In other words, forgery and lack of authority are the only attacks that are so powerful and all-encompassing that they taint both the contract and the arbitration clause. See: Premium Nafta Products Ltd v Fili Shipping Company Ltd [2007] UKHL 40, per Lord Hoffmann at paragraph 17.
[3] Premium Nafta Products Ltd v Fili Shipping Company Ltd [2007] UKHL 40, per Lord Hoffmann at paragraph 17.
[4] NB: in so far as the construction of the clause allows it.
[5] [2004] EWHC 2909, per Colman J, paragraph 21 (my emphasis).
[6] Fiona Trust & Holding Corp. v Privalov [2007] UKHL 40, per Lord Hoffmann, paragraphs 6-7.
[7] The “Gateway” Problem in International Commercial Arbitration, George A. Bermann, The Yale Journal of International Law, Vol 37, page 23.
[8] Ibid.
[9] Code de procédure civile, Article 1448: „Lorsqu’un litige relevant d’une convention d’arbitrage est porté devant une juridiction de l’Etat, celle-ci se déclare incompétente sauf si le tribunal arbitral n’est pas encore saisi et si la convention d’arbitrage est manifestement nulle ou manifestement inapplicable”.
[10] République arabe d’Egypte v Southern Pacific Properties Ltd [1986] Ju Fr 75; [1987] Ju Fr 469 (12 July 1984, Paris Court of Appeal and 6 January 1987, Cour de Cassation) (the Pyramids case). See also: Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46, paragraph 20 (on French law)
[11] Who Decides the Arbitrators’ Jurisdiction? Separability and Competence-Competence in Transnational Perspective, John. J. Barcelo III (2003), Cornell Law Faculty Publications, Paper 508, page 1125.
[12] The “Gateway” Problem in International Commercial Arbitration, George A. Bermann, The Yale Journal of International Law, Vol 37, page 19.
[13] Noble Denton Middle East and Another v Noble Denton International Ltd [2010] EWHC 2574 (Comm), paragraph 16; see also paragraphs 4-5, 12.
[14] English Arbitration Act 1996, section 32.
[15] Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46, at paragraphs 25-26.
[16] Ibid., per Lord Mance at paragraph 30.
[17] Zivilprozessordnung s1032(1): Wird vor einem Gericht Klage in einer Angelegenheit erhoben, die Gegenstand einer Schiedsvereinbarung ist, so hat das Gericht die Klage als unzulässig abzuweisen, sofern der Beklagte dies vor Beginn der mündlichen Verhandlung zur Hauptsache rügt, es sei denn, das Gericht stellt fest, dass die Schiedsvereinbarung nichtig, unwirksam oder undurchführbar ist.
[18] Ibid., s1032(2): Bei Gericht kann bis zur Bildung des Schiedsgerichts Antrag auf Feststellung der Zulässigkeit oder Unzulässigkeit eines schiedsrichterlichen Verfahrens gestellt werden.
[19] The “Gateway” Problem in International Commercial Arbitration, George A. Bermann, The Yale Journal of International Law, Vol 37, pages 20-21.
[20] Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002), First Options, 514 U.S.. See also: AT&T Technologies, Inc. v. Communications Workers of America 475 US 643, 649 (1986): validity of arbiration clause is a matter for judicial determination unless “unless the parties clearly and unmistakably provide otherwise.”
[21] Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002).
[22] „Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that […] (e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made”.
[23] Who Decides the Arbitrators’ Jurisdiction? Separability and Competence-Competence in Transnational Perspective, John. J. Barcelo III (2003), Cornell Law Faculty Publications, Paper 508.
[24] Kompetenz-Kompetenz: Varying Approaches and a Proposal for a Limited Form of Negative Kompetenz-Kompetenz, A. Cook, 2014 Pepp. L. Rev. 17 (2014), p. 10
[25] First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 940 (1995). See also: Kompetenz-Kompetenz: Varying Approaches and a Proposal for a Limited Form of Negative Kompetenz-Kompetenz, A. Cook, 2014 Pepp. L. Rev. 17 (2014), p. 9.
[26] Ottley v. Sheepshead Nursing Home, 688 F.2d 883, 898 (2d Cir. 1982) (Lumbard, J., dissenting).
