The Jurisdiction of the Arbitral Tribunal: A Transnational Analysis of the Negative Effect of Competence-Competence

The issue of jurisdiction of the arbitral tribunal raises questions such as, who decides whether the arbitral tribunal can determine its own jurisdiction and at what stage of the arbitral process should judicial intervention, if any, occur. There are divergent approaches taken by courts to these questions. This article offers a comparative analysis of jurisdictional approaches to providing priority to the arbitral tribunal to rule on its own jurisdiction. This article identifies the French approach as the best practice and it is argued that it provides the optimum balance between providing priority to the parties' agreement to arbitrate and simultaneously ensuring there is access to courts if one of the parties presents a genuine challenge to the jurisdiction of the tribunal.