In France, unless an arbitration agreement is manifestly void or inapplicable, a judge lacks jurisdiction to hear a case where there is an arbitration agreement (the so called negative effect of “competence-competence”). It is only at the annulment or enforcement stage that judges will look at the validity and scope of an arbitration agreement.In England, the judge can rule on the validity and scope of an arbitration agreement before an award is rendered and throughout arbitration proceedings.
In the Privinvest matter, English judges unanimously found – as arbitration proceedings were ongoing – that the requests made by Mozambique fell under the arbitration agreement’s scope and therefore could not be decided before a judge.
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