Queen Mary School Of Law Legal Studies Research Paper

The Negative Effect of Compétence-Compétence: The Verdict Has to Be Negative

18 PagesPosted: 5 Jun 2009  

Abstract

The paper explores issues relating to the conflict of jurisdiction between national courts and arbitral tribunals. More specifically, it looks into the theoretical premises of the jurisdiction of arbitral tribunals, and the doctrine of compétence–compétence, which provides tribunals with the power to examine and determine its own jurisdiction. However, the paper argues that, while the doctrine of compétence–compétence started as a legal convention aiming to strengthen the jurisdiction of arbitral tribunals, it has now developed to a legal paradox, threatening to undermine the delicate jurisdictional balance between national courts and arbitral tribunals. This especially applies to the negative effect of compétence-compétence, a conceptual derivative of the original meaning of the principle, which gives jurisdictional priority to arbitral tribunals over national courts. The paper examines the elements of the negative compétence–compétence, through a comparative analysis of the arbitration legislation and jurisprudence of various national jurisdictions, and shows that the negative compétence-compétence lacks legitimacy, and eventually it is counterproductive to arbitration. The paper concludes with some tentative suggestions on the complex issue of allocation of powers between national courts and arbitral tribunals.

Keywords: jurisdiction, arbitration, tribunals, national courts, compétence–compétence, negative compétence–compétence, conflict of jurisdiction

Suggested Citation:Suggested Citation

Brekoulakis, Stavros, The Negative Effect of Compétence-Compétence: The Verdict Has to Be Negative. Austrian Arbitration Yearbook, pp. 238-258, 2009; Queen Mary School of Law Legal Studies Research Paper No. 22/2009. Available at SSRN: https://ssrn.com/abstract=1414325

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Socio-Legal Studies, Law Schools, and Legal and Social Theory

12 PagesPosted: 30 Sep 2012Last revised: 4 Oct 2012

Date Written: September 30, 2012

Abstract

This paper argues initially that socio-legal studies are important for legal education and juristic inquiry, and it outlines problems facing social studies of law in law schools. It claims that legal theory is necessary for practical legal studies but that legal philosophy's purportedly timeless theories about the nature of law have largely failed to meet this need. They have often been relatively unconcerned with social variation and historical change and so have not adequately reflected the varieties of possible legal experience. Juristic theory must be sociologically informed. But, equally, socio-legal studies must examine the nature of law as ideas as well as focusing on behaviour in legal contexts. Legal ideas need sociological interpretation. Social theory is essential to inform legal inquiries, and the long tradition of social theories of law is important. Alongside recent theories, the classics of socio-legal theory give deep perspective for studies of present-day law in society.

Keywords: legal education, socio-legal studies, legal philosophy, sociology of law, social theory

Suggested Citation:Suggested Citation

Cotterrell, Roger, Socio-Legal Studies, Law Schools, and Legal and Social Theory (September 30, 2012). Queen Mary School of Law Legal Studies Research Paper No. 126/2012. Available at SSRN: https://ssrn.com/abstract=2154404

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