INTRODUCTION
In today's world, the interest in alternative dispute resolution methods has increased with the aim of resolving disputes more swiftly, effectively, and by specialized professionals. In this context, the institution of arbitration stands out, particularly in commercial disputes, as an alternative judicial avenue to state adjudication. As is well known, arbitration refers to the resolution of disputes between parties, based on mutual consent, by independent arbitrators.
For the effective functioning of the arbitration process, the acceptance of certain fundamental principles is essential. Chief among these is the principle of "competence-competence" which allows arbitrators to decide on their own jurisdiction. This study will explain the conceptual foundations of the aforementioned principle, analyze its status in international and Turkish law, and evaluate its impact on practice and case law.
A. THE CONCEPTUAL FRAMEWORK OF THE "COMPETENCE-COMPETENCE" PRINCIPLE
The term competence-competence, of German origin, literally means "authority over authority." This principle signifies that the arbitrator or the arbitral tribunal in arbitration proceedings has the competence to rule on its own jurisdiction. In other words, the arbitral tribunal is authorized to decide on matters such as the validity, scope, and applicability of the arbitration agreement.
The principle has a dual dimension. Positively, it confers upon the arbitrators the primary authority to decide on their own jurisdiction, thereby enhancing the efficiency and speed of the arbitration process. Negatively, it implies that state courts must refrain from intervening in jurisdictional disputes related to arbitration before the arbitral tribunal has rendered its decision. In this way, the autonomy of arbitration and the primacy of party autonomy are preserved.
The aim of this principle is to prevent unnecessary prolongation of arbitration proceedings, to enhance the efficiency of a dispute resolution mechanism based on party consent, and to strengthen the role of arbitrators in resolving disputes. However, this authority is not unlimited. The arbitrators' decisions on jurisdiction are not final in nature and remain subject to judicial review by national courts. Thus, a balance is struck between the principles of legal certainty and judicial oversight, and the autonomy of arbitration.
B. THE "COMPETENCE-COMPETENCE" PRINCIPLE IN INTERNATIONAL LAW
In international arbitration law, the principle of competence-competence is explicitly recognized in numerous legal instruments. For instance, Article 16 of the UNCITRAL Model Law explicitly provides that arbitral tribunals may rule on their own jurisdiction. Although the 1958 New York Convention does not directly refer to this principle, it indirectly endorses it by prioritizing the validity and enforceability of arbitration agreements. Similarly, the ICSID Convention and institutional arbitration rules—such as those of the ICC, LCIA, and SCC—recognize the principle of competence-competence and grant arbitral tribunals the authority to determine their jurisdiction. Consequently, the principle has become one of the fundamental tenets of international arbitration law.
C. THE AUTHORITY OF ARBITRATORS TO RULE ON THEIR OWN JURISDICTION AND JUDICIAL REVIEW UNDER TURKISH LAW
Under Turkish arbitration law, the principle of competence-competence is explicitly adopted in both the Code of Civil Procedure No. 6100 ("CCP") and the International Arbitration Law No. 4686. Indeed, Article 422 of the CCP stipulates that "The arbitral tribunal may decide, upon objection by a party, on matters of arbitrability and jurisdiction, including the existence, validity, and scope of the arbitration agreement and whether the dispute is subject to arbitration." Similarly, Article 7 of the International Arbitration Law provides that "The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement."
Pursuant to these provisions, arbitral tribunals are granted the authority to rule on their own jurisdiction. However, as previously stated, this authority is not absolute and is subject to a party's objection. According to Article 439 of the CCP and Article 15 of Law No. 4686, arbitration awards rendered by tribunals that exceed their jurisdiction may be annulled. This clearly indicates that the arbitrators' authority is subject to judicial review.
The Turkish Court of Cassation (Yargıtay) has acknowledged the principle of competence-competence within the domestic legal context. The Court has affirmed that arbitrators may decide on their own jurisdiction, but such decisions remain subject to annulment proceedings. For instance, in its decision numbered 2017/4281 E. and 2018/1519 K., the 11th Civil Chamber of the Court of Cassation stated that "the arbitral tribunal has the authority to rule on the validity of the arbitration clause; however, this decision is subject to judicial review under annulment proceedings." Similarly, in its decision numbered 2014/3274 E. and 2015/3439 K., the 15th Civil Chamber held that "arbitral awards rendered outside the scope of the arbitration agreement are subject to annulment." These decisions reflect the Turkish judiciary's recognition of arbitral autonomy while preserving a limited judicial control to ensure legal certainty.
Moreover, in Turkish legal doctrine, there is consensus that the arbitrators' authority to determine their own jurisdiction contributes to the efficiency and swiftness of arbitration proceedings. However, some scholars have raised concerns about potential abuse of this authority by arbitrators, which may compromise the principle of impartiality. Therefore, it is emphasized that arbitrators must act with diligence and proportionality when exercising this authority. Additionally, criticisms have been directed at courts that adopt an interventionist approach when interpreting arbitration agreements, suggesting that such tendencies should be avoided.
D. CONCLUSION
As one of the fundamental principles of arbitration, the competence-competence principle constitutes a critical structural element that ensures the functional autonomy of arbitral tribunals and enhances the effectiveness of arbitral proceedings. By virtue of this principle, arbitrators are empowered to rule on matters such as the validity, scope, and arbitrability of the arbitration agreement, thereby preventing unnecessary judicial intervention and ensuring uninterrupted arbitration.
The Turkish legal system, by explicitly adopting this principle through the Code of Civil Procedure No. 6100 and the International Arbitration Law No. 4686, has granted arbitrators discretionary authority on jurisdictional matters in both domestic and international arbitration practices. As a result, party autonomy is prioritized, and state court intervention in the arbitration process is limited, thereby safeguarding the independence of arbitral proceedings.
Nonetheless, the competence-competence principle does not confer absolute authority upon arbitrators; it becomes relevant upon a party's objection to the arbitrators' jurisdiction. Decisions rendered by arbitrators on jurisdiction are not final and binding, but are subject to limited judicial review. The annulment mechanisms provided under the CCP and the International Arbitration Law allow courts to review arbitration awards, particularly in cases involving jurisdictional excess or rulings beyond the scope of the arbitration agreement. This review process ensures legal certainty and prevents arbitral proceedings from becoming arbitrary.
In conclusion, the recognition of the competence-competence principle within the Turkish legal system is consistent with both national and international arbitration practice. It contributes to making arbitration a more functional, reliable, and preferred method of dispute resolution.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
