Study On The Negative Effect Of The Principle Of Competence-Competence In International Commercial Arbitration

As an important dispute settlement to international commercial disputes, international commercial arbitration has gained universally accepted. Jurisdiction to decide jurisdiction of arbitration is of natural necessity. The jurisdiction issue is the foundation stone of arbitration process, a comprehensive and profound study on Jurisdiction to decide jurisdiction of arbitration would no doubt benefit the international commercial arbitrationThe notion of competence-competence is one of the founding principles of international commercial arbitration law. Provides for the arbitrators' power to rule on their own jurisdiction, this principle embodies the mirroring effect that the courts should refrain from engaging into the examination of the arbitrators' jurisdiction before the arbitrators themselves have had an opportunity to do so.Known as the negative effect of the principle of competence-competence, this rule of priority in favor of the arbitrators, today increasingly recognized in practice, exemplifies the specific nature and autonomy of international arbitration, in full harmony with the New York Convention's philosophy of recognition of the validity of the arbitration agreement and of the award resulting from the arbitral process.The dissertation first examines the elements of the negative competence-competence, through a comparative analysis of the arbitration legislation and jurisprudence of various national jurisdictions. As will be shown, the principle of negative competence-competence has gradually grown bigger than its origins, traced in French law and the European Convention, as fundamental aspects of the principle are now accepted in many jurisdictions. The dissertation will argue that both the positive and negative competence-competence are premised upon sound theoretical and policy considerations The complex but at the same time fascinating issue of negative competence-competence is still in the making. Nevertheless, as the dissertation showed, a series of recent legislation and practice in a number of jurisdictions show that the negative aspect of the doctrine gain continuing acceptance.Most discussions of competence-competence, especially in China literature, treat only the positive aspect of the doctrine, which is a simple and uncontroversial notion. The thesis, as guided by the basic theories of comparative laws,empirical study and jurisprudence, centers on the negative competence-competence and argues for the adoption of the negative aspect of the doctrine The dissertation concludes with some tentative suggestions on the complex issue of allocation of powers between national courts and arbitral tribunals. The more likely path to a more robust negative competence-competence doctrine in Chinese law is through legislation overhauling the outmoded Arbitration Law of the People's Republic of China. In any such legislative undertaking, valuable lessons can be drawn from the various approaches to the negative competence-competence doctrine in other jurisdictions discussed above. A legislative solution would allow a nuanced and balanced approach. The upshot then is another call for a modern China arbitration statute.