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Extended Jurisdiction Under Arbitration Agreements—A Threat To Effective Dispute Resolution

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Chapter Summary

Proper jurisdiction for the arbitrators is the foundation for every arbitral tribunal and for every arbitration award. Without proper jurisdiction, the arbitration may be a waste of time instead of an effective dispute resolution. The basis for "Kompetenz-Kompetenz" is the arbitration agreement and its wording, just as any other agreement. The challenge is not to define the meaning of separability and/or Kompetenz-Kompetenz, but to assess and properly decide if a dispute or a claim in a dispute is related to the contract in which the arbitration clause is contained. Arbitrators have agreed, under a contract of sorts with the parties, to deal effectively with the dispute. Pro-active arbitrators, acting under rules or governing laws promoting or at least allowing active measures to secure a reasonably swift proceeding, would earn the appreciation of the majority of litigants from which all concerned would likely benefit, at least long term.

Keywords:arbitration agreement; arbitration clause; Kompetenz-Kompetenz



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