I. INTRODUCTION
Arbitration is a method by which parties resolve disputes between them outside state jurisdiction through arbitrators of their own choosing. The effectiveness and functionality of arbitration largely depend on the independence of the arbitration process and limited court intervention. In this context, the kompetenz-kompetenz principle is a fundamental doctrine that protects the independence of arbitration proceedings and grants the arbitral tribunal the ability to decide on its own jurisdiction. The name of the principle is of German origin and means “jurisdiction over jurisdiction.” Through this principle, when an objection is raised regarding the validity or scope of an arbitration agreement, it becomes possible for the arbitral tribunal to examine and decide on this objection in the first instance. Thus, the arbitration process can proceed without being subjected to early-stage court intervention, and the speed and efficiency envisaged by the parties when choosing arbitration can be achieved.
In Turkish law, the kompetenz-kompetenz principle has been recognized and expressly regulated with respect to both domestic arbitration and international arbitration. Regarding international arbitration, Article 7/H of the IAL explicitly provides that the arbitrator or arbitral tribunal may decide on its own jurisdiction. Similarly, Article 422 of the CCP has adopted the same principle with respect to domestic arbitration. These regulations are also consistent with international conventions to which Türkiye is a party and with the universal principles of modern arbitration law. The application of the kompetenz-kompetenz principle is also closely related to the principle of separability of the arbitration agreement. The acceptance of the arbitration clause as an agreement independent from the main contract enables the arbitral tribunal to examine its own jurisdiction despite allegations of invalidity of the main contract.
II. DEFINITION AND SCOPE OF THE KOMPETENZ-KOMPETENZ PRINCIPLE
The kompetenz-kompetenz principle is a doctrine stating that the arbitrator or arbitral tribunal has the authority to resolve disputes arising regarding the existence, validity, or scope of the arbitration agreement. This principle has been developed to protect the independence and effectiveness of arbitration proceedings. The basic rationale of the principle is that when an objection is raised regarding the validity of an arbitration agreement, this objection must be evaluated primarily by the arbitral tribunal. Otherwise, one of the parties could prevent the arbitration process by asserting the invalidity of the arbitration agreement and bring the dispute to the courts. This situation could eliminate the advantages of arbitration in terms of speed and efficiency.
The scope of the kompetenz-kompetenz principle includes matters concerning the existence, validity, and scope of the arbitration agreement. The question of the existence of an arbitration agreement refers to whether an arbitration agreement was actually concluded between the parties. The question of validity covers whether the arbitration agreement is legally valid, for example, whether it is invalid due to reasons such as the parties’ capacity, defects of will, or violation of public policy. The question of scope includes whether a particular dispute falls within the scope of the arbitration agreement. The arbitral tribunal has the authority to decide on all three of these matters. However, this authority does not mean that the arbitral tribunal’s decision is final. The decision of the arbitral tribunal regarding its jurisdiction may subsequently be reviewed by the courts. Particularly at the stages of setting aside or enforcement of the arbitral award, courts may examine the validity of the arbitration agreement and the jurisdiction of the arbitral tribunal.
The principle of separability of the arbitration agreement also plays an important role in the application of the principle. The separability principle refers to the acceptance of the arbitration clause as an agreement independent from the main contract. Through this principle, the invalidity or termination of the main contract does not affect the validity of the arbitration clause. Therefore, the arbitral tribunal may exercise its jurisdiction by accepting the validity of the arbitration clause despite the allegation that the main contract is invalid. This situation ensures the effective application of the kompetenz-kompetenz principle. In Turkish law, the separability principle is explicitly regulated in Article 7/H of the IAL. According to this article, an arbitration clause contained in a contract is deemed to be an agreement independent from the other provisions of the contract.
III. THE DISTINCTION BETWEEN POSITIVE AND NEGATIVE KOMPETENZ-KOMPETENZ
The kompetenz-kompetenz principle is addressed in doctrine in two dimensions: positive and negative. Positive kompetenz-kompetenz refers to the arbitral tribunal’s right to decide on its own jurisdiction. This dimension emphasizes that the arbitral tribunal has the authority to examine and decide on the existence, validity, and scope of the arbitration agreement. Positive kompetenz-kompetenz enables the arbitral tribunal to assume an active role at the beginning and continuation of the arbitration process. When one of the parties asserts the invalidity of the arbitration agreement, the arbitral tribunal examines this objection and renders a decision regarding its own jurisdiction. This decision determines whether the arbitration proceedings will continue.
Negative kompetenz-kompetenz, on the other hand, refers to the requirement that courts should not interfere with the arbitration process. This dimension emphasizes that when a dispute arises regarding the existence or validity of an arbitration agreement, courts should refrain from deciding on this matter and leave the issue to the arbitral tribunal. Negative kompetenz-kompetenz has been developed to protect the autonomy of the arbitration process and to limit court intervention. However, this principle does not mean that courts cannot examine the existence of an arbitration agreement at all. Courts may intervene in situations where the arbitration agreement is manifestly invalid or inapplicable. However, this intervention must be limited and exceptional.
IV. LEGAL REGULATIONS IN TURKISH LAW
In Turkish law, the kompetenz-kompetenz principle is explicitly regulated in the IAL and the CCP. Article 7/H of the IAL provides that the arbitrator or arbitral tribunal may decide on its own jurisdiction. According to this article, the arbitrator or arbitral tribunal may decide whether the arbitration agreement exists or is valid. Furthermore, the article emphasizes that where the arbitration agreement has been arranged as part of a contract, this clause shall be evaluated independently from the other provisions of the contract. This regulation also confirms the separability principle.
Article 422 of the CCP regulates the kompetenz-kompetenz principle with respect to domestic arbitration. According to this article, the arbitrator or arbitral tribunal may decide whether the arbitration agreement exists or is valid. Where the arbitration agreement has been arranged as part of a contract, this contractual provision is deemed independent from the other provisions of the contract. The annulment of the contract does not automatically annul the arbitration agreement. This regulation demonstrates that the kompetenz-kompetenz and separability principles are also valid in domestic arbitration practices.
Both regulations are inspired by Article 16 of the 1985 UNCITRAL Model Law on International Commercial Arbitration (“UNCITRAL Model Law”) adopted by the United Nations Commission on International Trade Law (“UNCITRAL”). The UNCITRAL Model Law is a model text prepared for the harmonization of international arbitration law and has been incorporated into domestic law by many countries. Türkiye’s adoption of this model law as a basis ensures that Turkish arbitration law is consistent with international standards. Furthermore, the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”), to which Türkiye is a party, also supports the application of the kompetenz-kompetenz principle. Indeed, Article 2/3 of the New York Convention, while regulating the recognition and application of arbitration agreements, states that courts should refer parties to arbitration in the presence of an arbitration agreement.
On the other hand, the negative kompetenz-kompetenz principle is regulated in Article 5 of the IAL, in Turkish law. According to this article, if a lawsuit has been filed regarding a dispute subject to an arbitration agreement, the defendant party may raise an arbitration objection. Unless the court is satisfied that the arbitration agreement is manifestly null and void, inoperative, or incapable of being performed, it shall accept the arbitration objection and dismiss the case on procedural grounds. This regulation demonstrates that courts may examine the existence and validity of the arbitration agreement in a limited manner but must refer the matter to the arbitral tribunal without conducting a detailed examination. The balance between positive and negative kompetenz-kompetenz is of critical importance for the effective functioning of arbitration law. While the positive dimension enables the arbitral tribunal to exercise its jurisdiction, the negative dimension protects the autonomy of the arbitration process by preventing early court intervention.
The role of courts in the application of the kompetenz-kompetenz principle in Turkish law is also important. When an arbitration objection is raised, courts examine prima facie (at first glance) whether the arbitration agreement is manifestly null and void, inoperative, or incapable of being performed. This examination is not a detailed evaluation but a superficial control. If there is no serious doubt regarding the existence and validity of the arbitration agreement, the court accepts the arbitration objection and dismisses the case on procedural grounds. This approach is a reflection of the negative kompetenz-kompetenz principle and aims to protect the independence of the arbitration process.
V. CONCLUSION
The kompetenz-kompetenz principle is one of the cornerstones of arbitration law and has been developed to protect the autonomy and effectiveness of arbitration proceedings. In Turkish law, this principle has been made subject to legal regulations with respect to both domestic and international arbitration through the incorporation of model laws into domestic law and has become applicable in a manner consistent with international standards. While the positive dimension of the principle grants the arbitral tribunal the right to decide on its own jurisdiction, the negative dimension limits court intervention in the arbitration process. When the effective application of the kompetenz-kompetenz principle is evaluated together with the separability principle of the arbitration agreement, it ensures the preservation of the speed and efficiency advantages of the arbitration process. The parties’ drafting of arbitration agreements in a clear and precise manner, their utilization of institutional arbitration services, and the courts’ adoption of a pro-arbitration approach will contribute to the effective application of the kompetenz-kompetenz principle. In conclusion, the kompetenz-kompetenz principle has taken its place in Turkish law as an indispensable element of arbitration law and serves the effective resolution of disputes by protecting the independence of arbitration proceedings.
B. KEY TAKEAWAYS
(1)The kompetenz-kompetenz principle recognized in Turkish law as a fundamental doctrine that aims to protect the autonomy and effectiveness of arbitration proceedings by recognizing that the arbitrator or arbitral tribunal has the authority to resolve disputes arising regarding the existence, validity, and scope of the arbitration agreement.
(2)The principle operates in two dimensions: positive and negative. While positive kompetenz-kompetenz grants the arbitral tribunal the right to decide on its own jurisdiction, negative kompetenz-kompetenz protects the independence of arbitration proceedings by limiting court intervention in the arbitration process.
(3)In Turkish law, the kompetenz-kompetenz principle is explicitly regulated with respect to both international and domestic arbitration by Article 7/H of the IAL and Article 422 of the CCP and has been brought into conformity with international standards by drawing inspiration from Article 16 of the UNCITRAL Model Law.
(4)The separability principle of the arbitration agreement forms the basis for the effective application of the kompetenz-kompetenz principle and enables the arbitral tribunal to exercise its jurisdiction by ensuring that the invalidity or termination of the main contract does not affect the validity of the arbitration clause.
(5)The courts’ examination of the existence and validity of the arbitration agreement only prima facie in the face of an arbitration objection and their referral of the matter to the arbitral tribunal without conducting a detailed evaluation is the concrete reflection of the negative kompetenz-kompetenz principle in Turkish law.
(6)Article 5 of the IAL has made court intervention limited and exceptional by providing that courts must accept the arbitration objection unless they are satisfied that the arbitration agreement is manifestly null and void, inoperative, or incapable of being performed.
(7)Although the decision of the arbitral tribunal regarding its own jurisdiction is binding with respect to the arbitration proceedings, it is not final; this decision may be reviewed by courts in an action to set aside the arbitral award or at the enforcement stage.
(8)The kompetenz-kompetenz principle prevents one of the parties from obstructing the arbitration process by asserting the invalidity of the arbitration agreement and eliminating the speed and efficiency advantages of arbitration by bringing the dispute to the courts.
(9)Article 2/3 of the New York Convention, to which Türkiye is a party, strengthens the legitimacy and applicability of the kompetenz-kompetenz principle in international arbitration practices by providing that courts should refer parties to arbitration in the presence of an arbitration agreement.
(10)The kompetenz-kompetenz principle has taken its place in Turkish law as an indispensable element of arbitration law and, when evaluated together with the separability principle of the arbitration agreement, has created a structural safeguard mechanism that serves the effective resolution of disputes by protecting the independence of arbitration proceedings.
