Recently the Mexican and U.S. Supreme Courts issued judgments that impact upon the understanding and scope of one of the most important principles of arbitration law: compétence-compétence. In essence, the view adopted by both Supreme Courts is that, whilst the arbitrator has the authority to rule on its jurisdiction, this authority is confined to challenges involving the validity of the contract as a whole. Should the challenge involve the validity of the arbitration agreement, it will be for the national courts to rule on the same. Interestingly, both cases display an impressive parallelism: not only in outcome, but in reasoning and other procedural aspects. This article addresses this development and concludes that it is mistaken. In the author’s opinion the new theory misconstrues the purposes of compétence and produces law that curtails the effects the principle was originally designed to yield.
Journal of International Arbitration