The determination of a tribunal’s substantive jurisdiction is crucial. The question may involve considering such matters as whether or not there is a valid arbitration agreement, whether the tribunal is properly constituted, and what issues have been submitted to arbitration in accordance with the arbitration agreement. 1 Failure to raise the question of jurisdiction early may deprive a party of the opportunity of raising it later and can ultimately affect enforcement. Issues of substantive jurisdiction are principally for the tribunal to resolve. Its entitlement to do so is known as “ kompetenz-kompetenz ”. Before any tribunal or court can consider the issue of jurisdiction arising out of the arbitration agreement, it will be necessary to determine the applicable law of the arbitration clause (see chapter 3 pages 21-23). Some arbitral institutions, such as the ICC, give themselves the option of considering the issues of the existence, validity or scope of the arbitration agreement or leaving it to the tribunal. 2
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