Originally from American Review of International Arbitration - ARIA

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I. INTRODUCTION
Once upon a time, arbitration was seen as a means of avoiding courts in
resolving parties’ contract disputes. Today, however, an arbitration agreement all
too often simply leads to a second dispute over the forum for resolving the first.
This often obstructive skirmish – on the border between litigation and arbitration
– arguably presents the single greatest threat to the effectiveness of commercial,
business-to-business arbitration today. This threat is particularly acute in the
context of international commercial arbitration, where recalcitrant parties may
seek to invoke the jurisdiction of a broad array of national courts, with a broad
variety of views regarding the proper role of courts with respect to the arbitral
process. The primary tool for dealing with the interaction between national courts
and the arbitral process is the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (1958)1 (the “New York Convention” or
“Convention”).
For over 50 years, the New York Convention has served two principle
purposes, each of which relates to the enforcement of agreements to arbitrate
claims in lieu of bringing them in court. Article II generally requires national
courts to defer to agreed upon arbitration proceedings, and Article III generally
requires national courts to recognize and enforce any resulting arbitration awards.
This article will focus on the former. To what extent are national courts precluded
from exercising jurisdiction over matters at least arguably subject to arbitration?
This question requires a review of the “negative” aspect of “competencecompetence.”
While “positive” competence-competence provides an arbitral
tribunal with the power to decide its own jurisdiction, the negative version goes
further in precluding a court from addressing this same issue – at least as a
preliminary matter. This negative version is subject to significant variation under
different national arbitration laws. Thus, parties challenging the jurisdiction of
arbitrators will often bring parallel challenges in court, adding to the overall cost
of resolving the original dispute and reducing the efficiency of the arbitral