The resolution of the preliminary objection to the existence of an arbitration agreement versus the kompetenz-kompetenz principle: What are the limitations and obligations of the judge?

Abstract

Within the framework of a legal proceeding, the judge is responsible for substantiating the preliminary objections raised by the parties, allowing them to present their arguments and, if possible, resolving them during the same hearing. The preliminary objection regarding the existence of an arbitration agreement serves as a procedural defense with a dual function: a positive one, which grants jurisdiction to arbitrators to resolve the dispute; and a negative one, which prevents the signatory parties from submitting their conflict to the ordinary courts. Under the kompetenz-kompetenz principle, the power to adjudicate a dispute involving an arbitration clause lies exclusively with the arbitrators. The ordinary judge, when faced with the existence of an arbitration agreement or clause, must refrain from hearing the case and refer the parties to arbitration, in order to safeguard the guarantee of their right to be judged by a competent authority. However, justice and the law assert their role and require the judge to fulfill the fundamental duty of upholding legal certainty. An automatic inhibition is not sufficient to resolve the objection; rather, the parties must be guaranteed the right to contradiction and defense in a properly held hearing that enables the judge to issue a reasoned decision.

Keywords: Prior exception, arbitration agreement, judge, jurisdiction, arbitrator, process, substantiation