Doctrine of Kompetenz Kompetenz

The related doctrine of Kompetenz Kompetenz, namely the ability of the tribunal to decide upon its own jurisdiction has the effect of statutorily conferring on the putative tribunal a limited jurisdiction - namely the jurisdiction to determine whether it, the tribunal, has a jurisdiction under the arrangements that the parties have made.  The resultant proceedings are no less an arbitration than they would have been had they arisen under an express agreement, whether or not the resultant decision is in favour of a party determined jurisdiction or against it.  The award in which the position is declared binds the parties; it may also make an order for costs, which can be enforced in the usual way.  Accordingly, the tribunal, the arbitration and the award will be subject to the provisions of the Act in the usual way.

As a general proposition, this entitlement of the applicant to a stay would be valid even if the jurisdiction of the arbitrator was challenged.  This is the result of the introduction into English statutory law of a form of the doctrine of Kompetenz Kompetenz.  Section 30 of the 1996 Act provides for arbitrators to determine their own jurisdiction, while S. 31 makes consequential provisions.  They are as follows:

            “Competence of tribunal to rule on its own jurisdiction
30.         (1)  Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to-
(a)       whether there is a valid arbitration agreement;
(b)       whether the tribunal is properly constituted, and
(c)        what matters have been submitted to arbitration in accordance with the arbitration agreement.

(2)       Any such ruling may be challenged by any available arbitral process of appeal or review or in accordance with the provisions of this Part.l

The doctrine is a legal fiction essential to the efficient working of the arbitration process.  It was developed in England in a long line of cases starting with the landmark decision of the House of Lords in Heyman v. Darwins and it culminated in the decision of the Court of Appeal in Harbour Assurance v. Kansa which for the first time established the principle as now enshrined in Section17.

Heyman v. Darwins Ltd [1942] AC 356

This case decided that an accepted repudiation or frustration, while it might bring the contract to an end in the sense of discharging the parties from further performance of their primary obligations, did not affect the enforceability of an arbitration clause.  The House of Lords arrived at this decision by looking at the purpose of the rule that accepted repudiation or frustration discharges the parties from further obligations and asking whether the arbitration clause should for this purpose be regarded as imposing an obligation.  In one sense it obviously did.  In the context of the repudiation or frustration rules, however, there was no reason to treat the obligation to submit to arbitration as discharged, and such a conclusion would have severely reduced the value of the clause.

Harbour Assurance v. Kansa

The quotation from the Judgment of Hoffman L.J

            “Mr. Longmore’s argument is extremely simple.  He says that the question raised on the pleadings is whether the retrocession agreement was void ab initio.  The arbitration clause formed part of the retrocession agreement.  There the issue must involve the validity of the arbitration clause itself.

            Mr. Longmore calls this logic.  I call it over-simplification.  The flaw in the logic, as it seems to me, lies in the ambiguity of the proposition that the arbitration clause ‘formed part’ of the retrocession agreement.  In one sense of course it did.  It was clause 12 of a longer document which also dealt with the substantive rights and duties of the parties.  But parties can express words that two separate agreements are intended. Or the question of whether the document amounts to one agreement or two may have to be answered by reference to the kind of provisions it contains.  In any case, it is always essential to have regard to the reason why the question is being asked.  There is no single concept of ‘forming part’ which will provide answer in every case.  For some purposes a clause may form part of an agreement and for other purposes it may constitute a separate agreement.  One must in each case consider the terms and purpose of the rule which makes it necessary to ask the question.

In explaining why he refused to categorise an arbitration clause as a contractual obligation for the purposes of the repudiation or frustration rules Lord Macmillan said at pp 373-374

            “I venture to think that not enough attention has been directed to the true nature and function of an arbitration clause in a contract.  It is quite distinct from the other clauses.  The other clauses set out the obligations which the parties must undertake towards each other hinc inde, but the arbitration clause does not impose on one of the parties an obligation in favour of the other.  It embodies the agreement of both parties that, if any dispute arises with regard to the obligations which the one party has undertaken to the other, such dispute shall be settled by a tribunal of their own constitution.”

Likewise Lord Wright said at pp 377

            “an arbitration agreement … is collateral to the substantial stipulations of the contract. It is merely procedural and ancillary, it is a mode of settling disputes, though the agreement to do so is itself subject to the discretion of the court.  All this may be said of every agreement to arbitrate, even though not a separate bargain, but one incorporated in the general contract.’

The proposition that at least for some purposes the arbitration clause may be treated as severable or separable or autonomous has become orthodox doctrine.  In the case of Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation Ltd [1981] AC 909, 980 Lord Diplock said without further explanation:

“The arbitration clause constitutes a self-contained contract collateral or ancillary to the shipbuilding agreement itself. 
Lord Scarman also said that “an arbitration clause in a contract was “in strict analysis, a separate contract, ancillary to the main contract.

The other power conferred on the Tribunal is the power to amend or to allow amendments.  The arbitrator may also use his own knowledge to resolve a conflict.

The rules of the arbitral institution will set out the provisions in detail and outline the powers of the arbitrator.

If one opts to adopt the rules of the chartered institute into an agreement then the arbitration clause should provide the following:

“That any dispute arising out of or in connection with this contract shall be referred to and finally resolved by arbitration under the rules of the Chartered Institute of Arbitrators Kenya Branch which rules are deemed to be incorporated by reference into this clause.

The advantage of that clause is that one avoids setting out in the arbitration clause or the essentials that need to be incorporated.  Instead of a lengthy arbitration clause the mere reference to the Chartered Institute addresses all the essentials that need to be included in the Agreement.


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