The Doctrine of Kompetenz-Kompetenz: An Instrument of Fraud or Justice? The Case of Dallah Real Estate and Tourism Holding Company (Appellant) (Dallah) v the Ministry of Religious Affairs (Government of Pakistan)

The arbitral tribunal is vested with wide ranging powers when it comes to the issue of jurisdiction. As a result, there is the potential of the arbitral tribunal assuming disputable jurisdiction. The power of the arbitral tribunal to determine its own jurisdiction is known as Kompetenz-Kompetenz. This paper’s position is that the Kompetenz-Kompetenz doctrine is a necessary evil that aids in the administration of justice. Without an arbitral tribunal being clothed with this power, the determination of the jurisdiction of the arbitral tribunal at the law courts, prior to arbitration, could have been endless. Dallah was just unfortunate to have contracted with a very clever party (the Government of Pakistan). Therefore, after a careful examination of recent cases on Kompetenz-Kompetenz, this paper concludes that the doctrine of Kompetenz-Kompetenz is an instrument of justice.