‘In order for
the arbitral tribunal to be authorized and entitled to hear any dispute put
forward by the parties, there must be a valid agreement’1. The
existence of such agreement has both positive and negative sides. The positive
effect is such that the parties are obliged to abide by the agreement and thus provides
ground for the jurisdiction of the arbitral tribunal. On the negative side of
the coin, such an agreement waives the parties’ right to a court access. Any
defects of the arbitration agreement will directly affect the arbitral
tribunal’s competence because of the constitutional link that the arbitral
tribunal’s competence has to the validity of the agreement. Conflicts arise in
situations where tribunals would declare an agreement valid but the court would
say otherwise or when a tribunal makes an award but the courts decides not to
enforce it. There are many other ways in which conflicts arise. In order to
deal with the conflicts that arise between tribunals and courts, we should go
back to the roots of the arbitration agreement. Conflicts regarding the
jurisdiction of the tribunal arise since there are multiple bodies who decide
on the validity of the arbitration agreement. One way to prevent this conflict
could be to internationally harmonize laws by allowing only 1 institution to
decide upon the validity of an arbitration agreement. However, the question
still arises. Which one of them should be given this power? Courts or
tribunals?

Although the
two doctrines namely separability and competence-competence are far from being
similar, they are simultaneously used to maximize the virtue of arbitration as
a potential tool of resolving whether a tribunal has jurisdiction. They are
also concerned with the validity, existence of an arbitration agreement and
also they serve to eradicate loopholes in situations where parties decide to
delay the arbitral process. Although these two concepts are tackled
differently, they both speak the same question. This big question arises when
there is a challenge to the jurisdiction of the arbitral tribunal. Is it the
arbitral tribunal, an arbitral institution, any appointing authority or a court
of competent jurisdiction that determines that challenge/ decides the
jurisdiction of the tribunal?

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