Saturday, October 5, 2013

Discuss The Doctrine Of “kompetenz-kompetenz” In International Commercial Arbitration

The Doctrine of Kompetenz-KompetenzIn International technical arbitrement_________________________________Students Name___________________________________Instructor[Date]The Doctrine of Kompetenz-KompetenzIn International mercenary ArbitrationIntroductionInternational arbitrement has been used to resolve disputes for a long destine . As noned by one commentator : mercenary arbitrement must have existed since the dawn of commerce (Musthill , 2006 ) unluckily another side of business transactions , corruption , has been most a long time also . Inevitably , it has appeared in externalist commercial arbitrement cases . This article reviews some of those cases and analyzes the evolving trends on how international arbitrators have dealt with this difficult issue (Bribes , 1998 , Martin , 1999 , Levi Raphael , 1999Kompetenz-kom petenz refers to an arbitral push inn s power to determine whether it has legal power to decide a inclination ( Wyss , 1997 Although the arbitrator s power to form on her own jurisdiction is generally recognized throughout the world , ICC case o . 1110 (1963 ) is one of the first reported international arbitral awards relations with corruption . The Comment will address the issue of kompetenz-kompetenz and dissociable dogmas . The ICC Case No . 8891 illustrating the role of the Arbitrator in the international policy issuesKompetenz-KompetenzThe competence or jurisdiction of the arbitral motor lodge to decide upon a focus involving corruption has been challenged in a number of arbitral awards . Probably the most substantially cognise case is ICC Case No . 1110 (Arb n XXI (1996 ) 47 ) where the restore arbitrator , Judge Lagergren disqualified himself as not having jurisdiction . That case has been subsequently distinguished (Wetter , 1963 ) on the one thousand that the arbitration agreement was entirely sep! arate and distinct from the stick out hold ofual relationships of the partiesThe doctrine of conquest can be describe as a teaching that gives precedence to familiarity subjective law over the law of the instalment States within its proper(a) sphere of competence .
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consequently , success is not domineering per se Hence , supremacy does not imply a universal subordination of Member State law to Community law (MacCormick , 1995 ) The justification for supremacy given by the ECJ relates to the obtain of law and the necessity of a coherent Community legalThis principle is supported by oblige 16 .1 of the UNCITRAL Mod el fairness (UNCITRAL , 1985 ) and Article 21 .2 of the UNCITRAL Arbitration Rules (UNCITRAL , 1976 ) which essentially say : The arbitral tribunal whitethorn rule on its own jurisdiction , including any objections with respect to the introduction or validity of the arbitration agreement . For that purpose , an arbitration clause which forms part of a contract shall be set as an agreement self-sufficing of the other terms of the contract . A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause As referred to in the Westinghouse case , Article 6 (2 ) of the 1998 ICC Rules of Arbitration states : the Court may decide , without prejudice to the admissibility or merits of the plea or pleas , that the arbitration shall proceed if it is prima facie satisfied that an arbitration agreement under the Rules may existDoctrine of Autonomy...If you want to get a full essay, decree it on our website: OrderCustomPaper.! com

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