Límites a la aplicación absoluta del principio Kompetenz-Kompetenz.

Abstract

When the preliminary objection of Existence of Arbitration Agreement is filed, by virtue of the application of the legal principle Kompetenz-Kompetenz, the Judge is limited to verify the existence of this agreement, but not its scope and validity, since it is the duty of the Arbitral Tribunal to know about its own competence, and in case the existence of the agreement is proven, the Judge is obliged to abstain and issue a judgment accepting the preliminary objection. However, the application of this principle causes problems in procedural practice, because in certain cases it obliges the Judges to accept the prior exception of the existence of the arbitration agreement, even though the agreement is manifestly null and void or impossible to execute, causing delay in the resolution of conflicts. This paper will examine the application of the Kompetenz-Kompetenz principle and will identify whether it is possible that the judge could have the capacity to know the scope and validity of the arbitration agreement.