Originally from European International Arbitration Review

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Introduction

It is a trite statement that arbitration is based on the consent of the parties.  No party can be expected to participate in arbitral proceedings, to be bound by an award or to be denied enforcement of its rights in the state courts if it has not submitted to arbitration. Consequently, the legitimacy of arbitration depends on the existence of a valid arbitration agreement covering the disputes in question. At the same time, the question of who is entitled to decide about the existence and the validity of the arbitration agreement may be crucial for the efficiency and attractiveness of arbitration as a dispute resolution process. 

In principle, the question as to the existence of a valid arbitration agreement covering the dispute at issue may become relevant at all stages of the dispute resolution process. It may arise before the arbitral tribunal or before the state courts, at the pre-award stage or at the post-award stage and as the main question to be decided or as a merely preliminary or incidental question in the context of proceedings on the merits initiated before the state courts. 

In most jurisdictions, the principle of competence-competence,  sometimes supplemented by the doctrine of separability,  plays a crucial role in determining who may decide the issues and which standard is applicable. The principle of competence-competence is considered to be one of the “founding principles of international arbitration”,  a “conceptual cornerstone of international arbitration as an autonomous and effective form of international dispute settlement”.  Despite this general agreement as to the importance of the principle its content is everything but uncontroversial if one goes beyond the mere statement that the arbitral tribunal may decide on its own jurisdiction. Different views exist whether in addition to these positive effects for the tribunal’s jurisdiction, the principle also affects the powers of the state courts to rule on the arbitral tribunal’s jurisdiction. Whether such a grant of competence-competence to the tribunal results at the pre-award stage in limitations for the courts to examine the validity of the arbitration agreement is answered differently in different jurisdictions.