Introduction: The Evolution of Negative Competence-Competence
Doctrines rarely arrive fully formed. They are built one exception at a time, and then, if the underlying policy is strong enough, the exceptions themselves start to disappear. Negative competence-competence in Indian arbitration law is currently living through exactly that second phase. The seven-judge bench reference in In Re: Interplay Between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899, (2024) 6 SCC 1, sits at the absolute center of this unfolding story.
The Bench—headed by Chief Justice Dr. Dhananjaya Y. Chandrachud—offered a now widely quoted description of the doctrine’s two faces:
- The Positive Aspect: Empowering the arbitral tribunal to rule on its own jurisdiction first.
- The Negative Aspect: Instructing judicial courts to defer to that ruling instead of pre-empting it at the referral stage.
