The US Supreme Court does Kompetenz-Kompetenz

Abstract

Abstract In Henry Schein and New Prime, the US Supreme Court reached two unanimous decisions on arbitration. Both cases in quite different ways gave rise to questions about the original German doctrine or version of Kompetenz-Kompetenz, the ability of the parties to submit by agreement their jurisdictional disputes to arbitration. Each decision, though, contains so much more. In Henry Schein, the court rejected the view that the court could effectively terminate an arbitration by concluding that the right to arbitrate was clearly not there. It required a proper enquiry including an investigation as to whether the AAA Commercial Rules constitute a Kompetenz-Kompetenz agreement. The facts presented suggested a more complex enquiry than that about the arbitrator's jurisdiction and powers. In New Prime, the Court applied the exclusion from the Federal Arbitration Act for employees engaged in interstate commerce to a self-employed lorry driver. It refused to save the clause on the basis on a Kompetenz-Kompetenz agreement or an inherent jurisdiction.