In recent years, both in Ireland and internationally, there has been considerable debate concerning the role of national courts under the Article 8 of the UNCITRAL Model Law to rule on arbitral jurisdiction (vis-a-vis arbitral competence to do so (the so-called ‘Kompetenz-Kompetenz’ principle), and in particular whether the standard of judicial review which the court should apply in exercising its jurisdiction should be strong or deferential.
The Lisheen Mine v Mullock and Sons (Shipbrokers) Limited and Vertom Shipping and Trading BV is the latest in a series of Irish cases considering the arbitral jurisdiction to determine jurisdiction. The Irish High Court found that a strong standard of judicial review should be favoured in exercising Article 8 jurisdiction. The determination of the existence of a valid arbitration agreement was found to merit “full judicial consideration” and was considered not to be a matter solely for the arbitrator. This decision also further cements the Irish position on the nature of the court’s jurisdiction in considering applications for the stay of proceeding for referral to arbitration.
2. Legal Framework
The principle that arbitrators have jurisdiction to determine their own jurisdiction is central to the international arbitration system. The arbitral Kompetenz-Kompetenz doctrine is nigh on globally accepted as a point of principle (and in international arbitration conventions). Born comments, “the basic proposition that an international arbitral tribunal presumptively possesses jurisdiction to consider and decide on its own jurisdiction must be considered a universally-recognised principle of international arbitration law.” This widely accepted principle of ‘Kompetenz-Kompetenz’ (or competence-competence”) is, however, a relatively new concept in Irish legislation.