Competence to Rule on Arbitral Jurisdiction: Various Approaches

This article investigates, in different jurisdictions, who, the court or the arbitral tribunal, has the competence and to what extent to decide whether the tribunal has jurisdiction over a case involving an arbitration agreement if one of the disputing parties initiates court proceedings before or concurrently with arbitral proceedings (the pre-award stages). Taking the concept of competence-competence, the article finds three possible approaches and potential patterns among examined jurisdictions to regulate the level of deference between the court and the tribunal at each pre-stage. First, the tribunal has concurrent competence with the court – the United Nations Commission on International Trade Law Model Law approach. Second, the tribunal is the first, or presumed to be the first, judge to decide arbitral jurisdiction, which can be found in France. The final approach, represented by that of the United Kingdom and Vietnam, is the hybrid one in which the tribunal may in certain cases be, or may not be, the first judge depending on individual pre-award stages and the nature of the challenge submitted. The article also comments on three approaches and suggests policy considerations for Vietnam.