Competence of Competence: An English View

Abstract

TYPICALLY in English law, a legal concept gradually develops with each individual case and not as a sudden process of logical reasoning from a set of first principles. So it is not surprising that while relatively few English lawyers and arbitrators, at least until recently, would have used as legal terms of art the actual phrases ‘autonomy of the arbitration clause’1 or ‘competence of competence’, nonetheless English arbitration law has long experience in the practical application of these different legal concepts. This note seeks to demonstrate that the concept of competence of competence is alive and well in English arbitration law2 and that the concept is applied in practice in a flexible manner, despite its absence as an ordinary English legal term of art. It is axiomatic that commercial arbitration depends first on consent. As recently restated by Messrs Redfern & Hunter ‘An arbitration tribunal may only validly determine disputes which the parties have agreed that it should determine. This rule is an inevitable consequence of the voluntary nature of arbitration. In consensual arbitration, the authority or competence of the arbitral tribunal comes from the agreement of the parties; indeed, there is no other source from which it can come. It is the parties who give to what is essentially a private tribunal the authority to decide disputes between them; and the arbitration tribunal must take care to stay within the terms of this authority… an arbitral tribunal must not exceed its jurisdiction…’3 This obvious limitation on the jurisdiction of arbitrators, imposed by the dependence of that jurisdiction on the consent of the parties, gives rise to a logical problem and a practical need. The logical problem is that an examination by an arbitrator of his own jurisdiction in the event of challenge, involves an assumption that …