Volume 23, Issue 2 (2019)                   CLR 2019, 23(2): 33-56 | Back to browse issues page

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jahanian M, Shahbazinia M. Application of the competence-competence principle in arbitrability of claims, comparative analysis of Iranian and American law. CLR 2019; 23 (2) :33-56
URL: http://clr.modares.ac.ir/article-20-27024-en.html
1- Ph.D. Student Of Private Law,Faculty of Literature and Humanities, Kharazmi University, Alborz, Iran , jahanian.mojtaba@yahoo.com
2- Associate Professor, Faculty of Law, Department of Intellectual Property Law, Tarbiat Modares University, Tehran, Iran.
Abstract:   (10134 Views)
The broad concept of arbitrability in American law involves the inclusion of an arbitration clause on the subject of the dispute as well as referability the matter to the arbitral tribunal. The legislator forbids some claims in accordance with the political, social, and economic interests of the community from referral to arbitration. " competence-competence " principle allows the arbitration authority to comment on the issue of the discretion of the arbitrator`s jurisdiction arising from the validity and scope of the arbitration agreement. The Federal Arbitration Act does not explicitly exclude the competence-competence principle , but the court practice in america has accepted the principle of independence of the arbitration clause as a condition of arbitration and also exemplifies the authority of the arbitrators to determine their jurisdiction. By virtue of revised uniform arbitration act, the resolution of the dispute about the existence of the arbitration agreement and the inclusion of the subject in the arbitration agreement is principally within the jurisdiction of the court. International Commercial Arbitration act of Iran, while accepting the principle of independence of the arbitration clause, provide that the arbitrator can decide on his competence, as well as on the existence or validity of the arbitration agreement.
In domestic arbitration, although the opponents of the principle relyon Article 461 of the Code of Civil Procedure of Iran, but the implied intention of the parties as the basis for accepting the qualifications of the arbitrators in determining their jurisdiction can be invoked.
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Article Type: Analytic Review |
Received: 2018/11/10 | Accepted: 2019/06/20 | Published: 2019/06/20

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