chapter  3
26 Pages

Prerequisites: which forum decides?

If a party challenges the existence and validity of a dispute resolution clause, which courts or tribunals have jurisdiction to decide the preliminary issue and jurisdiction of either themselves or others? The challenge to the preliminary issue of a dispute resolution clause may arise in two circumstances. First, the claimant may argue that the main contract has never been concluded or the main contract is invalid. Since a dispute resolution clause is part of the contract, this argument also questions the existence and validity of the dispute resolution clause. The doctrine of separability usually applies to deal with this situation, under which the dispute resolution agreement is deemed independent from the main contract and the nonexistence or invalidity of the main contract cannot necessarily invalidate the dispute resolution agreement. Second, a claimant may directly challenge the existence or validity of a dispute resolution agreement. The question is whether the chosen forum is competent to rule on its own jurisdiction when the dispute resolution agreement that confers power to this forum is under challenge. The doctrine of kompetenz-kompetenz applies to grant the chosen forum the competence to examine its own jurisdiction. The doctrines of separability and kompetenz-kompetenz work together to promote the effectiveness of dispute resolution agreements and party autonomy.1 This chapter examines the theory and the practice of the doctrine of separability and kompetenz-kompetenz in cross-border dispute resolution.