Orient Case and the Doctrine of Competence-CompetenceKomal Anwar/September, 2021
- Critical analysis of the law on Competence-Competence under Pakistani law
The Pakistani courts have acknowledged the principle that an arbitral tribunal is a judge of both fact and law, the latter of which includes the question of its own jurisdiction.2
- Comparison of the doctrine of Competence-Competence under Pakistani law with Indian law
In India, the theory of Competence-Competence is codified under Section 16 of the Arbitration and Conciliation Act, 1996 (“Indian Act 1996”) which grants the arbitral tribunal the power to rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement. This is in sharp contrast to
Sections 31(2) and 33 of the Arbitration Act 1940, which allows the courts to take the task upon themselves to determine whether or not the arbitrator has rightly conferred on himself his jurisdiction to decide the dispute6. As far as the 2011 Act is concerned, the jurisdiction to determine issues on arbitrability is given to the arbitrators pursuant to Section 4 and Article II(3) of the New York Convention. It could be strongly argued that under the Arbitration Act 1940, the legislature through Sections 31(2) and 33 presumed that the parties do not normally intend substantive arbitrability questions (the arbitration agreement’s existence, validity, or scope) to be decided by the arbitrator.
- Nigel Blackaby & Constantine Partasides, Redfern & Hunter on International Arbitration (6th edn, OUP, 2015) at p. 339
- Karachi Dock Labour Board v. Messrs Quality Builders Ltd., PLD 2016 Supreme Court 121 referred in para 40 of the Orient judgment.
- See, Section 34 of the Arbitration Act 1940 and Section 4 of the 2011 Act
-  UKSC 57
- PLD 2016 SC 121
- See Karachi Development Company Limited v. IM Technologies Pakistan (Private) Limited, 2017 CLCN 157 Sindh.
- U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd., 1996 S.C.C. (2) 667
- Vidya Drolia and Ors. v. Durga Trading Corporation and Ors., 2021 S.C.C (2) 1