Originally from American Review of International Arbitration - ARIA

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I. INTRODUCTION

Unlike courts of law which inherently possess jurisdiction to hear disputes as the established organs of law enforcement within a legal system, arbitral tribunals are creations of contracts between parties. Arbitral tribunals exist only to the extent permitted by the governing legal system and are competent to hear only what the contractual parties have agreed to submit to them. As with any other contract, the agreement to arbitrate may be subject to a wide variety of interpretations, ranging from legitimate to totally unfounded. It is therefore not surprising that international arbitrators will face a challenge to their jurisdiction in many cases brought before them.

Although it is generally recognized that the arbitrator may decide upon his own competence, it is also widely accepted that the final decision as to the arbitrator's jurisdiction rests with the national courts of the seat of the arbitration.[1] This article will consider the power of the arbitral tribunal to decide its competence, and the parties' rights to challenge the tribunal's jurisdiction, in various legal systems.[2] It will then examine the effect on the arbitral proceedings of a challenge to the tribunal's preliminary ruling on its jurisdiction in light of a French Court of Appeal decision. That decision, Société Industrial Export-Import (Industrial) c/ General Establishment for Chemical Industries (GECI) et General Fertilizers Company (GFC)[3] affirmed the tribunal's choice not to stay the arbitration.