Alberta Court Articulates Important Exceptions To The Kompetenz-Kompetenz Principle And The Scope Of Arbitration Clauses

A recent decision of the Alberta Court of King's Bench in Orica Canada Inc v ARVOS GmbH, 2024 ABKB 97 [Orica] has attracted considerable attention among members of the arbitration bar. In it, the Court of King's Bench addressed two established concepts:

• kompetenz-kompetenz: the arbitral tribunal's power to rule on its own jurisdiction; and
• interpretation of arbitration clauses: determining whether a claim falls within the scope of an agreement to arbitrate to give effect to the parties' intention to arbitrate.

On the first issue, the Court applied existing jurisprudence to find that the kompetenz-kompetenz principle does not apply to jurisdictional challenges where (1) the challenge involves pure questions of law, (2) the challenge involves questions of mixed fact and law requiring only superficial consideration of the record, or (3) there is a real prospect that referring the challenge to arbitration would mean that it is never resolved.