ABBREVIATIONS

SC Supreme Court
SCR Supreme Court Reporter
SCC Supreme Court Cases
AIR All India Reporter
Art. Article
HC High Court
Sec. Sec.
UNCITRAL The United Nations Commission on International Trade Law
v. Versus
Ors. Others
Org. Organization
Ltd. Limited
Co. Company
Pvt. Private
UOI Union of India
UP Uttar Pradesh
u/s Under Section
SLP Special Leave Petition
Hon’ble Honorable
Edn. Edition

LIST OF CASES

Sn.No. NAME CITATION Pg.No.

1. M/S. Uttarakhand Purv Sainik vs Northern Coal SLP (C) No. 11476 of 

Field Ltd. 2018

2. Fiona Trust & Others v. Yuri Privalov & Ors. [2007] EWCA 20 16
3. Gas Authority of India Ltd v. Keti Construction Ltd. [2007] 5 SCC 38. 10
4 Heyman v. Darwins Ltd. [1942] AC 346, 374. 9
5. Konkan Railway Corp Ltd v. Rani Construction Pvt. [2002] 2 SCC 388 12

Ltd.
6. SBP & Co v. Patel Engineering Ltd. [2005] 8 SCC 618 12
7 Shin Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. [2005] 7 SCC 12
8 UP Rajkiya Nirman Nigam Ltd. v. Indure Pvt Ltd. 1996] 2 SCC 667 11
9 Lexicon Finance Limited, Unit No. II, Mumbai v. 2003 (2) RAJ 316 14
 UOI (Kar.).
10 Babar Ali v. Union of India and Ors. (2000) 2 SCC 178 14
11. Arati Dhar v. S.K. Dutta 2003 (4) RAJ 98. 14
12. Oil and Natural Gas Corporation v. Oil Field 2005 (1,RAJ 69 15

Instrumentation (Bom)
13. Kitiku Imports Trade Pvt. Ltd. v. Savitri Metals Ltd. 1999 (2) Arb. L.R. 15

And Anr. 405 (Bom.)

INDEX

Sn No. TOPIC Pg. No.

1. INTRODUCTION 6-8
2. SEVERABILITY AND COMPETENCE-COMPETENCE 9
3. DOCTRINE OF COMPETENCE-COMPETENCE 9-12
4. SEC. 16 RELATION WITH SEC.S 8, 9 AND 11 OF THE ACT 13
5. EFFECT OF 2015 AMENDMENT ON COMPETETENCE- 13-15
COMPETENCE PRINCIPLE
6. CONSTITUTIONALITY OF THE SEC. 15
7. PROPRIETY OF PROCEEDINGS WITH THE ARBITRATION 16
WITHOUT DECIDING THE QUESTION OF JURISDICTION
8. CAN THE OBJECTION REGARDING JURISDICTION BE RAISED 17
FOR THE FIRST TIME IN APPLICATION UNDER SEC. 34?
9. POSITIVE AND NEGATIVE EFEECTS OF THE DOCTRINE 17
10. EXCEPTIONS TO THE DOCTRINE OF COMPETENCE- 18
COMPETENCE
11. CONCLUSION 19
12. BIBLIOGRAPHY 20
 INTRODUCTION

The doctrine of competence-competence has become a prominent characteristic of the

arbitration regime. It has been recognized by the arbitration legislations of many countries. The
doctrine means that the arbitration tribunal has the power to decide its own jurisdiction. This also
includes the power of the arbitration tribunal to decide any objections on the existence or validity
of an arbitration agreement. This power has been statutorily conferred on the arbitral tribunal and
is subject to scrutiny by the courts.1 The doctrine is related to the rules pertaining to the issue of
jurisdiction between the arbitral tribunals and national courts and to the timing of challenges that
may be raised to the arbitral tribunal’s jurisdiction. 2 While the doctrine is recognized in many
countries, there is a disagreement among scholars. It is debated that the doctrine comes with its
set of positive and negative impacts. In India, the discussion pertains to the scope of this doctrine
and the characteristic feature of minimum court intervention in arbitration. The general tenet of
competence-competence that the arbitrator can decide on their own jurisdiction does not suggest
as to who eventually decides the case. It only states that ‘the question of “who decides what”
may itself be addressed by the arbitrator.’ Unless a court of competent jurisdiction decides to the
contrary, arbitration proceedings are not stopped merely because one of the parties challenges the
jurisdiction of the arbitral tribunal.
Over the matter of jurisdiction the provision in the Arbitration and Conciliation Act, 1996
is to be found in Sec. 16, in Chapter IV under the heading “Jurisdiction of Arbitration
Tribunals”. The chapter carries only two Sec.s. One deals with the matters of jurisdiction and the
nature and validity of the arbitration clause and agreement [S.16] and the other with the power of
the arbitral tribunal as to interim measures [S.17].
However, the provisions of Sec. 16 of the Arbitration and Conciliation Act 1996 are new
and did not find place in the old Act of 1940. Also the provisions of Sec. 16 are analogous to
Article 16 of UNCITRAL Model Law.

1
Arbitration and Conciliation Act 1996, Sec. 16.
2
Pratyush Panjwani and HarshadPathak, ‘Assimilating the Negative Effect of Kompetenz-Kompetenz in India: Need
to Revisit the Question of Judicial Intervention?’ [2013] 2(2) Indian Journal of Arbitration Law 24, 25.
Sec.16. Competence of arbitral tribunal to rule on its jurisdiction.
(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any
objections with respect to the existence or validity of the arbitration agreement, and for that
purpose,----
(a) an arbitration clause which forms part of a contract shall be treated as an agreement
independent of the other terms of the contract; and
(b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso
jure the invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later
than the submission of the statement of defence; however, a party shall not be precluded from
raising such a plea merely because that he has appointed , or participated in the appointment of,
an arbitrator.
(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall he raised
as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral
proceedings.
(4) The arbitral tribunal may, in either of the cases referred to in sub-Sec. (2) or sub-Sec.
(3), admit a later plea if it considers the delay justified.
(5) The arbitral tribunal shall decide on a plea referred to in sub-Sec. (2) or sub-Sec. (3)
and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral
proceedings and make an arbitral award.
(6) A party aggrieved by such an arbitral award may make an application for setting aside
such an arbitral award in accordance with Sec. 34.

UNCITRAL Model Law

Article16. Competence of arbitral tribunal to rule on its jurisdiction3

(1) The arbitral tribunal may 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
which 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 and void shall not
3
http://www.sice.oas.org/dispute/comarb/uncitral/icomarbe1.aspx#art16a
entail ipso jure the invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the
submission of the statement of defence. A party is not precluded from raising such a plea by the
fact that he 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) of this article either as
a preliminary question or in an award on the merits. If the arbitral tribunal rules as a
preliminary question that it has jurisdiction, any party may request, within thirty days after
having received notice of that ruling, the court specified in article 6 to decide the matter, which
decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal may
continue the arbitral proceedings and make an award.