Early Determination of Arbitral Jurisdiction : Balancing efficacy, efficiency, and legitimacy of arbitration

Sammanfattning: This dissertation examines the timing of judicial determination of jurisdictional disputes in the presence of an arbitration agreement. The analysis focuses on Article 8(1) of the UNCITRAL Model Law on International Commercial Arbitration (and Article II(3) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards). It circumscribes the discussions to a nuanced interpretative strategy.It is uncontroversial that national courts have the authority to decide, conclusively, disputes on arbitral jurisdiction. It is common ground that arbitrators, too, have the authority to rule on their own jurisdiction, subject to judicial control. This is known as the principle of competence-competence, which is widely recognised in arbitration legislation, institutional rules, and practice. The critical research question that this dissertation deals with is whether national courts should (or could) conclusively determine arbitral jurisdiction before or after the arbitrators have preliminarily determined that controversy.This dissertation does not question who has the authority to settle jurisdictional disputes (conflict of jurisdictions). The assumption is that both, judges and arbitrators, enjoy such decision-making power. Instead, this research is about when (timing) a court should exercise that authority with conclusive effects.This work examines and answers the when question from an autonomous legal-interpretation perspective, detached from a given State's law, concepts, and rules. Its theoretical framework is specific to the Model Law and national arbitration laws that have adopted it without deviating from it – at least not from the wording of Article 8.