Kompetenz-Kompetenz, Canadian Style

Abstract

In some important respects, the doctrine of kompetenz-kompetenz is evolving in Canada in a manner that may defeat the expectations of observers from other Model Law jurisdictions. Whether these developments are nevertheless positive and offer compelling answers that should thus be treated as persuasive in other Model Law jurisdictions is the main question on which this article focuses. It begins by arguing that while Canadian courts have rightly adopted the view that objections to arbitral jurisdiction should normally be dealt with by the arbitral tribunal in the first place, they have recognised a number of discretionary exceptions to this general rule that not only rest on shaky theoretical foundations, but also lack coherence and are potentially counterproductive. The article then offers an analysis of recent cases relating to the reviewability of negative jurisdictional rulings. It argues that Canadian courts are right to consider themselves to be empowered to review such rulings, but that their analysis of the legal basis of their power could be more compelling than it currently is. Finally, the article looks at the standard upon which arbitral tribunals’ jurisdictional decisions are reviewed by Canadian courts, and criticises an emerging line of cases which advocates a deferential standard on the basis of a rapprochement between jurisdictional decisions and awards dealing with the merits.