Principio Kompetenz Kompetenz Y Separabilidad Del Acuerdo Arbitral

TABLE OF CONTENTS

INDEX OF ABREVIATIONS

INDEX OF AUTHORITIES

INDEX OF CASES

I. SEPARABILITY OF THE ARBITRATION AGREEMENT

II. KOMPETENZ-KOMPETENZ

INDEX OF ABREVIATIONS

Abbreviation Explanation

Art. /Arts. Article/s

CISG United Nations Convention on Contracts for the International Sale of Goods, Vienna 1980.

Co. Company

Inc. Incorporated

LLC. Limited Liability Company

Ltd. Limited

No./s no./s Number/s

p. /pp. Page/s

IBA

vs. International Bar Association

Versus

INDEX OF AUTHORITIES

Redfern and Hunter.

Law and Practice of International Commercial Arbitration.

Redfern M. Hunter, N Blackaby and C. Partasides (2004), pp. 152 – 160.

[Cited as: Redfern and Hunter]

Domke, Domke on Commercial Arbitration (2005) Excerpts

Institut für Anwaltsrecht an der HU Berlin/ Tulane Law School 7th

[Cited as: Domke]

CEPANI

http://www.cepani.be/upload/files/reglement2013-en-arbitrage-v2.pdf

[Cited as: CEPANI]

United Nations Publication UNCITRAL Model Law on International Commercial Arbitration 1985 With Amendments Adopted in 2006. Sales No. E.08.V.4. ISBN 978-92-1-133773-0.

[Cited as: Model Law]

INDEX OF CASES

In XL Insurance Ltd v Owens Corning

Heyman vs. Darwins

Harbour vs. Kansas General

Case No: 2000 Folio 694. In the High Court of Justice Queen's Bench Division (Commercial Court). 28 July 2000 [2001] C.P. Rep. 22. Before: The Hon. Justice Toulson.

[Cited as: XL Insurance]

Heyman v Darwins Ltd [1942] AC 356

[Cited as: HvD]

Harbour Assurance Co. Ltd. v. Kansa General International Insurance Co. Ltd.

Queen's Bench Division (Commercial Court)July 31, 1991

[Cited as: HvK]

Separability of the Arbitration Agreement and Kompetenz-Kompetenz

Separability of the Arbitration Agreement

As seen before, Arbitration represents an alternative conflict resolution mechanism in which “Autonomy of the Parties” is the main principle and by which almost everything is ruled in the arbitration procedure. Following this principle, it is to be say that an arbitration process may be agreed by one of the following: a) an arbitration clause, or b) an arbitration agreement.

In virtue of the ahead expressed, what would happen if a contract in which an arbitration clause is included is declared void or null, would the arbitration clause or agreement have the same consequences?

Well, the Separability of the Arbitration Agreement prevents this from happening; we could say that it is the principle establishing that an arbitration agreement that forms part of a larger agreement is not itself invalidated merely by the invalidity of the larger agreement. Separability is a principle of international arbitration law adopted in most Institutional Arbitration Rules; for example:

UNCITRAL ARBITRATION RULES Art. 23

1. The arbitral tribunal shall have the power to rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null shall not entail automatically the invalidity of the arbitration clause.

2. A plea that the arbitral tribunal does not have jurisdiction shall be raised no later than in the statement of defense or, with respect to a counterclaim or a claim for the purpose of a set-off, in the reply to the counterclaim or to the claim for the purpose of a set-off. A party is not precluded from raising such a plea by the fact that it has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.

3. The arbitral tribunal may rule on a plea referred to in paragraph 2 either as a preliminary question or in an award on the merits. The arbitral tribunal may continue the arbitral proceedings and make an award, notwithstanding any pending challenge to its jurisdiction before a court.

The arbitral clause or agreement should prevail even if the “purposes” of the contract have failed. The arbitration clause is far distant from being a “purpose” of it. There is no need to expressly agree on the application

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