Chamber of Arbitration of Milan Rules: A Commentary - Hardcover
Chamber of Arbitration of Milan Rules: A Commentary - Electronic
ARTICLE 12 – LACK OF JURISDICTION OF THE
Any objection to the existence, the validity or the effectiveness
of the arbitration agreement or lack of jurisdiction of the
Arbitral Tribunal shall be raised in the first brief or at the
first hearing following the claim to which the objection relates,
or shall be deemed to be waived.
Article 12 deals with objections to the jurisdiction of the Arbitral
Tribunal. It is shorter than the corresponding provisions of other
arbitration rules (e.g., Art. 23 UNCITRAL Rules; Art. 6 ICC Rules; Art.
23 LCIA Rules; Art. 15 AAA International Arbitration Rules), which
explicitly state both the power of the Arbitral Tribunal to rule on its own
jurisdiction (so-called Kompetenz-Kompetenz principle) and the
independence of the arbitration clause from the contract of which it
forms part (principle of autonomy, or separability, of the arbitration
clause). Anyway, these two principles underlie also Article 12 of the
2. The Kompetenz-Kompetenz of the Arbitral Tribunal
2.1. The competence of the Arbitral Tribunal to rule on its own
jurisdiction – which has been described as an “inherent power” of each
Arbitral Tribunal1 – is enunciated in Article 16.1 of the UNCITRAL
Model Law, as well as in most arbitration laws.2 In Italian law, this
principle has been recognised explicitly only since the 2006 reform of...
ANDREA SANTINI is Associate Professor of International Law at the
Faculty of Political Science of the Catholic University of Milan, where
he also teaches European Union Law; member of the Steering
Committee of the Ph.D. School of Institutions and Policies at the same
University. Author of several publications on issues of international law
and EU law, among which the book Il principio di trasparenza
nell’ordinamento dell’Unione europea (Giuffrè Editore, 2004); editor,
with Ugo Draetta, of the book L’Unione europea in cerca di identità
(Giuffrè Editore, 2008). Member of the editorial staff of the review
Diritto del commercio internazionale.