Originally from Chamber of Arbitration of Milan Rules: A Commentary

Preview Page

ARTICLE 12 – LACK OF JURISDICTION OF THE ARBITRAL TRIBUNAL

Any objection to the existence, the validity or the effectiveness of the arbitration agreement or lack of jurisdiction of the Arbitral Tribunal shall be raised in the first brief or at the first hearing following the claim to which the objection relates, or shall be deemed to be waived.

1. Introduction

Article 12 deals with objections to the jurisdiction of the Arbitral Tribunal. It is shorter than the corresponding provisions of other arbitration rules (e.g., Art. 23 UNCITRAL Rules; Art. 6 ICC Rules; Art. 23 LCIA Rules; Art. 15 AAA International Arbitration Rules), which explicitly state both the power of the Arbitral Tribunal to rule on its own jurisdiction (so-called Kompetenz-Kompetenz principle) and the independence of the arbitration clause from the contract of which it forms part (principle of autonomy, or separability, of the arbitration clause). Anyway, these two principles underlie also Article 12 of the CAM Rules.

2. The Kompetenz-Kompetenz of the Arbitral Tribunal 

2.1. The competence of the Arbitral Tribunal to rule on its own jurisdiction – which has been described as an “inherent power” of each Arbitral Tribunal1 – is enunciated in Article 16.1 of the UNCITRAL Model Law, as well as in most arbitration laws.2 In Italian law, this principle has been recognised explicitly only since the 2006 reform of arbitration (see Art. 817.1 fo the Code of Civil Procedure), but prior to such reform it had already been widely accepted both in case-law and in the literature.3