Introduction: The principle of
Kompetenz-Kompetenz conveys in its core the 'power to
determine jurisdiction'. In the arbitral context, it must be
acknowledged that the arbitral tribunal's decision on
jurisdiction is generally subject to court control at the seat of
the arbitration that is being conducted, whether it be such that it
is immediately upon the arbitral tribunal's jurisdictional
determination, or subsequently, once the award on the merits has
been made. But this does not deprive arbitral tribunals of
Kompetenz-Kompetenz. If there is no challenge to the
arbitral tribunal's Kompetenz-Kompetenz decision, it
takes effect within the state of the seat and the award which
follows is credited under the New York Convention in the same way
as an award from an arbitral tribunal whose
Kompetenz-Kompetenz was challenged before the courts of
the seat but upheld.
