On the Principle of Competence-Competence in Comparative Perspective: Current Situation, Development and Breakthrough in China

Abstract

This paper conducts an examination of the competence-competence principle in international arbitration, with particular attention paid to its development and implementation in both the United States and China. The paper is systematically organized into five distinct sections. Initially, the article offers an introduction to the competence-competence principle, emphasizing its crucial role within arbitration proceedings. Subsequently, the second section traces the evolution of this principle within the United States, analyzing its emergence and subsequent development through significant case law. In the third section, the article presents a comparative analysis of the application of the competence-competence principle in China and the United States, highlighting the contrasting approaches undertaken by the two nations. The fourth section derives valuable lessons from the United States' acceptance and adaptation of the principle, considering potential implications for China and the advantages of embracing the competence-competence principle in order to enhance the efficacy of arbitration processes. In conclusion, the fifth section outlines anticipated trends in Chinese arbitration law, encompassing the potential establishment of the competence-competence principle, the elimination of arbitration commissions' authority to rule on jurisdictional challenges, and the acknowledgment of the arbitral tribunal's supremacy. This research article contributes to a deeper understanding of the competence-competence principle in international arbitration and provides valuable insights into the prospective development of Chinese arbitration law.