Doctrine of separability
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The doctrine of separability recognizes an arbitration clause as a separate and independent contract from the main contract. The validity of the arbitration clause is unaffected by any illegality or termination of the main contract. According to the doctrine, the obligation to resolve all disputes through arbitration remains even if the main contract expires or is vitiated. This protects the parties' intention to arbitrate disputes from being easily defeated and ensures the arbitration tribunal maintains jurisdiction.
Doctrine of separability
- 2. The doctrine of separability recognizes the arbitration clause in a main contract as a separate contract, independent and distinct from the main contract The essence of the doctrine is that the validity of an arbitration clause is not bound to that of the main contract The illegality or termination of the main contract does not effect the jurisdiction of an arbitration tribunal based on an arbitration clause contained in that contract The obligation to resolve all disputes by arbitration continues even if the main contract is expired or vitiated
- 3. 1)Separability protects the integrity of the agreement to arbitrate and plays an important role in ensuring that the parties intention to submit disputes is not easily defeated and in this way it also protects the jurisdiction of the arbitration tribunal 2)Accordingly the arbitrator has jurisdiction to rule on any complaint relating to the existence or the validity of the main contract provided there are no grounds for declaring the arbitration agreement itself invalid.
- 5. Article 22(2) “ An arbitration clause which forms part of the contract and which provides for arbitration under these rules shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause
- 6. “ The arbitral tribunal may rule on its own jurisdiction and in this connection on the existence or validity of the arbitration agreement . For that purpose , an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract”
- 7. Direct Consequences Indirect Consequences
- 8. The Arbitration agreement is unaffected by the status of the main contract The arbitration agreement may be governed by the law different from governing the main contract
- 9. Arbitrators have the power to rule on their own jurisdiction Combination of principle of validity and the rejection of the choice of law Arbitration clause may survive termination of expiry of the main contract Invalidity of the parties' main contract may not deprive an arbitral award of validity
- 10. The main contract embodying the arbitration agreement did not contain the mandatory signature of the parties. Russian Court found that the arbitration agreement was valid as it was a separate agreement and did not require the signatures of the parties for its formal validity.
- 11. “ Except where the parties otherwise intend, arbitration clause as a matter of federal law are ‘separable’ from the main contract in which they are embedded and where no claim is made that fraud was directed to the arbitration clause itself, a broad arbitration clause will be held to encompass arbitration of the claim that the contract itself was induced by fraud”