ARBITRATION – DOCTRINES OF SEPARABILITY AND COMPETENCE-COMPETENCE

   

   *      Arbitration is contractual in nature - > arbitration agreement

   *      Two related doctrine have developed that maintain the integrity of the arbitration
   process: the doctrine of separability (or severability) and the doctrine of competence –
   competence

   *      Both doctrine are closely related but distinguishable

   *      Both are well respected under the rules of two important arbitral organizations: The
   Court of Arbitration of the ICC + United Nations Commission on International Trade Law
   (UNCITRAL)

   *      While the separability doctrine provides for autonomy of arbitration clause, the
   competence – competence provides that the arbitrator has the competence to judge his own
   jurisdiction

   *      Competence – competence is a corollary to the doctrine of separability

   

   Separability doctrine

   *      Arbitration clause embedded in a contract is considered separate from the main contract
   – two separate sets of contractual relations

   *      The clause continues to be valid even if the main contract is void

   *      There is a legal presumption of the existence of two agreements

   *      4 milestones: intention of the parties to solve their disputes in arbitration + two
   contracts with different purpose + control function of the state courts after issuing the
   award + integrity of whole proceeding (don’t need to be interrupted by the state courts)

   

   Competence – competence doctrine

   *      The arbitrator may determine the existence of the arbitration clause, the validity of
   the arbitration clause and the scope of the arbitration clause - > parties need not invoke the
   jurisdiction of the national court to determine this issue

   *      Two grounds – jurisdictional power has been conferred by the will of the parties when
   they entered into the Arbitration agreement + this power is inherent in all judicial bodies
   and essential to their ability to function

        

   Relation (interrelation)

   *      Competence – competence is corollary to the separability doctrine: arbitration tribunal
   needs to have the jurisdictional to rule not only on the main contract ´s validity but on the
   validity of the arbitration agreement

   *      Well established in international arbitration

   

   

   

   *      UNCITRAL Rules: art. 21

   *      UNCITRAL Model Law: art. 16

   *      NY Convention on Recognition and Enforcement of Foreign Arbitral Awards

   *      Czech Commercial Code: §267/3 + Czech Act on Arbitration: §15

   *      US: Federal Arbitration Act + NY Convention