Answer ... The Arbitration Law imposes a time limit for making jurisdictional objections. Jurisdictional objections must be raised no later than the date fixed for submission of the respondent’s statement of defence. However, the arbitral tribunal may admit such a plea at a later stage if the relevant party submits justifiable reasons for the delay. Jurisdictional pleas may be submitted:

• as an independent objection; or
• as part of the respondent’s response to the request of arbitration or its statement of defence.

The arbitral tribunal may, on its own initiative or upon application by either party, decide:

• to bifurcate the proceedings and rule on the jurisdictional pleas as a preliminary question before ruling on the merits; or
• to adjoin the jurisdictional pleas to the merits and address all questions (of jurisdiction and substance) in the final award.

Answer ... The principle of competence-competence is firmly established under the Arbitration Law. Article 22 explicitly empowers the arbitral tribunal to rule on objections related to its jurisdiction, including objections related to:

• the existence, extinction or nullity of an arbitration agreement and
• the scope of the arbitration agreement and whether it covers the subject matter in dispute.

Further, the Supreme Constitutional Court has upheld the validity of the competence-competence principle, ruling that this “is an application of the widely accepted rule that the judge who rules on the merits, shall rule on the procedures” (Supreme Constitutional Court, Challenges 50 and 66 for Judicial Year 22, 15 December 2002). However, the tribunal’s decision – including in relation to jurisdiction – will be subject to scrutiny by the competent annulment court if the final award is challenged based on jurisdictional grounds.

Answer ... In principle, the court of the seat does not decide on the jurisdiction of the tribunal. This is the direct result of the notion of competence-competence that is well established under the Arbitration Law, and which provides that the tribunal has exclusive authority to decide on its own jurisdiction. The court of the seat will declare such inadmissibility not at its own initiative, but at the request of either litigant; in which case the litigant must adhere to the jurisdiction of the tribunal and to the arbitration agreement. If a litigant fails to adhere to the arbitration agreement and discusses the merits of the case, that party will be deemed to have waived the arbitration agreement. Nonetheless, the court of the seat may have the chance to rule on the jurisdiction of the arbitral tribunal once the arbitral award has been issued if the latter is challenged based on jurisdictional grounds. Pursuant to Article 53 of the Arbitration Law, an arbitral award can be challenged or set aside for lack of jurisdiction. The court of the seat cannot avoid ruling on the challenge unless it rules on the jurisdiction of the tribunal.