Application of the competence-competence principle in arbitrability of claims, comparative analysis of Iranian and American law

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Jahanian mojtaba; SHAHBAZINIA MORTEZA

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Journal: Comparative Law Researches Year:2019 | Volume:23 | Issue:2 (104) Page(s): 33-55

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Title

Application of the competence-competence principle in arbitrability of claims, comparative analysis of Iranian and American law

Author(s)

Jahanian mojtaba | SHAHBAZINIA MORTEZA | Issue Writer Certificate

Keywords

arbitrabilityQ1

competenceQ2

Abstract

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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APA: Copy

Jahanian, mojtaba, & SHAHBAZINIA, MORTEZA. (2019). Application of the competence-competence principle in arbitrability of claims, comparative analysis of Iranian and American law. COMPARATIVE LAW RESEARCHES (MODARES HUMAN SCIENCES), 23(2 (104) ), 33-55. SID. https://sid.ir/paper/367564/en

Vancouver: Copy

Jahanian mojtaba, SHAHBAZINIA MORTEZA. Application of the competence-competence principle in arbitrability of claims, comparative analysis of Iranian and American law. COMPARATIVE LAW RESEARCHES (MODARES HUMAN SCIENCES)[Internet]. 2019;23(2 (104) ):33-55. Available from: https://sid.ir/paper/367564/en

IEEE: Copy

mojtaba Jahanian, and MORTEZA SHAHBAZINIA, “Application of the competence-competence principle in arbitrability of claims, comparative analysis of Iranian and American law,” COMPARATIVE LAW RESEARCHES (MODARES HUMAN SCIENCES), vol. 23, no. 2 (104) , pp. 33–55, 2019, [Online]. Available: https://sid.ir/paper/367564/en

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