The Waiving of Jurisdictional Concerns in Arbitration: A Case Study of the IMFA v. Indonesia Arbitration

Abstract

As a field of law that is constantly developing, International Investment Law relies quite heavily on past arbitration awards or jurisprudence to derive the applicable laws in each respective case. This means that every new arbitration award should ideally be studied in order to identify what possible ramifications it may have for a future arbitration case. It is therefore of utmost importance that arbitral tribunals formulate and state their reasoning when they come to a conclusion regarding a disputed issue in a case. Doing this would provide insight as to the tribunal’s legal reasoning and would clear up any possible issues of legal certainty for the case in question as well as be of benefit for future tribunals. This is the reason for scrutinizing the IMFA v. Indonesia award. The tribunal in IMFA v. Indonesia had decided to forego coming to a conclusion on some of the jurisdictional arguments on the grounds that the merits of the case were found to be in favor of the Respondent (as the party who challenged the tribunal’s jurisdiction). This sort of waiving of Jurisdictional concerns is not advisable considering the precedent it would set, and also considering the fact that it would run counter to the Kompetenz-Kompetenz doctrine and right to present one’s case. This article aims to use the IMFA v. Indonesia case as a study to elaborate on why such a waiving is inadvisable and would set a bad precedent.

Keywords: Arbitration, Jurisdiction, Kompetenz-Kompetenz

DOI: 10.7176/JLPG/123-07

Publication date:August 31^st 2022