Sarah A. Dowd, Eric B. Fisher, Travis A. Gonyou. List of Amici: Professor Dr. Crina Baltag, Professor Dr. Eric De Brabandere, Chan Leng Sun, Professor Diana Correa, Professor Diane Desierto, Dr. Kabir Duggal, Dr. Mamadou Hébié, Baiju Vasani.
SUMMARY OF ARGUMENT
Parties to international arbitration and arbitral tribunals themselves value predictability and dependability. This is especially so for threshold questions concerning the authority of an arbitral tribunal to decide disputes over its own jurisdiction. Among international arbitration scholars and practitioners this threshold question is often known by the German term kompetenz- kompetenz, referring to the issue of competence to determine the competence of an arbitral panel to decide a dispute. Kompetenz-kompetenz sets the framework for the arbitration and promotes the value of efficiency that is paramount to the arbitration system. Lack of clarity introduces inefficiencies to the process, particularly in the enforcement of awards.
The common international approach toward kompetenz-kompetenz and the resolution of jurisdictional challenges is to permit a tribunal to decide its jurisdiction over a dispute and to later provide for a court to conduct de novo review. The United States has long been in line with this approach; however, in the Second Circuit's decision below, it has moved wildly out of step. Consideration of the approach in five foreign jurisdictions, which are among the most frequented seats of international arbitration, shows that the Second Circuit has departed from widely accepted norms. If the framework created by the Second Circuit's decision were to stand, it would make New York-as a leading international arbitration seat and the leading U.S.-based seat of arbitration by far-an outlier in the international arbitration community. For these reasons, the Court should review the Petition.