Abstract

The paper makes a comparative analysis of the Kompetenz-Kompetenz principle in light of international law: the New York Convention of 1958, the European Convention of 1961 and the UNCITRAL Model Law, as well as in light of Polish law and other national laws. The author delves into how the competence to examine arbitral jurisdiction is allocated between the state courts and arbitral tribunals in various legal systems. Generally speaking, two models of the Kompetenz-Kompetenz principle exist: according to the first one, prior to the issuance of an arbitral award the state courts are not allowed to examine the arbitral jurisdiction at all or are only entitled to perform a prima facie examination of the arbitral jurisdiction (France, Switzerland, Canada, India and Hong Kong). Under the second model, the state courts have competence to examine the arbitral jurisdiction to the full extent irrespective of whether or not the arbitral tribunal has ruled on its competence (Germany, Austria, England). The Polish legal system follows the latter model of Kompetenz-Kompetenz. The author also discusses several specific issues with respect to Kompetenz-Kompetenz principle under Polish law, in particular whether an arbitral tribunal with a seat in Poland is bound by the Polish state courts decisions issued in the parallel to arbitration or post-arbitration proceedings.