چکیده:
One of the important issues in arbitration is to resolve the conflict between the competence of the court and the arbitration authority. Denial of the competence of the court arises from the principle of competence-competence. This rule means that because of the competence of the arbitral tribunal, the court does not have competence until the end of the arbitration proceedings due to the suspension effect. The competence of judicial authorities is a general ond, while the competence of arbitral tribunals is specific. Therefore, the competence of arbitral tribunals is exceptional, and while narrowly interpreting their competence in cases of doubt concerning the competence of arbitral tribunals, based on the principle of general jurisdiction of judicial authorities, the competence of arbitral tribunals has an exceptional nature. The agreement of the parties to the dispute to refer to arbitration does not negate the absolute jurisdiction of the court, and the court performs its assisting duties by the law during the arbitration process. The Negative Effect of competence-competence means that the arbitrators must be the first judges of their own jurisdiction. Therefore, the supervision of the courts is postponed until the stage of annulment or execution of the arbitration award according to the arbitration agreement.
خلاصه ماشینی:
54 Regarding how the hermeneutic interpretation method leads to the denial of court jurisdiction, it must be explained that based on this method, the anticipatory interpretation making it possible to adjudicate the validity of the arbitration agreement in the stage of annulment of the arbitral award would result in the impossibility of the court's substantive adjudication of the arbitration agreement before the commencement of the arbitration process or during the arbitration process; otherwise, the provision mentioned, which is also anticipated in part (b) of clause 1 of Article 33 of the International Commercial Arbitration Law, would be futile, because if the court has jurisdiction to adjudicate the validity of the arbitration agreement until the issuance of the award, it is impossible to adjudicate it after the issuance of the award because the said lawsuit is subject to res judicata; therefore, the court can only express an opinion regarding the nullity or unenforceability of the contract in a formal manner, and even then, only when it is impossible to file an independent lawsuit for the annulment of the arbitration agreement.
From this, it can be inferred that the correct rule is that the court only expresses an opinion regarding the arbitration agreement in a formal manner; otherwise, even the anticipation of the principle of competence-competence in the International Commercial Arbitration Law cannot resolve the conflict of jurisdiction, because according to Article 8 of the said law, if the arbitration agreement is void, rescinded, or unenforceable, the court does not refer the parties to arbitration, and this means the denial of the negative effect and simultaneous adjudication by two authorities, whereas when an authority is recognized as having jurisdiction, it implicitly indicates that other authorities 55 do not have jurisdiction.
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