The Negative Effect of the Competence-Competence Principle in France: Twelve Years Later - Chapter 58 - Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years
Twelve years ago, France revised its arbitration law with Decree No. 2011-48 of 13 January 2011 (the “2011 Decree”) and included the (established) negative effect of the principle of competence-competence in its arbitration law. Twelve years ago, at my modest level, I assisted Professor Bermann with the preparation of an article on “The ‘Gateway’ Problem in International Commercial Arbitration.” At the time, as a French-educated student, my work focused on the French approach, with an emphasis on the negative effect of the competence-competence principle. It only seemed fitting to dedicate these few pages to this topic, which not only is a poster child of France’s pro-arbitration policy but also embodies the evolution of what it means to be pro-arbitration.
The principle of competence-competence is most commonly referred to for its positive effect, according to which an arbitral tribunal has jurisdiction to rule on its own jurisdiction (the “Positive Effect”). Article 1465 of the French Code of civil procedure (FCCP) provides that “[t]he arbitral tribunal has exclusive jurisdiction to rule on objections to its jurisdiction.” This side of the principle, which is uncontroversial in modern arbitration law, aims at ensuring that, as an adjudicatory body, an arbitral tribunal has the power to rule on jurisdictional objections.