The separability doctrine

Résumé du document

The separability doctrine, also called the severability doctrine, states that an arbitration clause is separable from the main contract underlying it, and can thereby survive any successful challenge to the latter. This doctrine has been incorporated into numerous international arbitration conventions and institutional rules, as well as national arbitration laws, including but not limited to: 1961 European Convention on International Commercial Arbitration, Art. V(3); 1998 ICC Arbitration Rules, Art. 6(4); UNCITRAL Arbitration Rules (as revised in 2010), Art. 23(1); 2009 AAA International Arbitration Rules, Art. 15(2); 1998 LCIA Arbitration Rules, Art. 23.1; 1985 UNCITRAL Model Law on International Commercial Arbitration, Art. 16(1); 1996 English Arbitration Act, section 7; German Code of Civil Procedure (Zivilprozessordnung), section 1040; 1987 Swiss Law on Private International Law, Art. 178(3); Lithuanian Law on Arbitration, Art. 19(1); 1958 New York Convention, Art. II(3). Some of these may be said to have included the doctrine by implication, such as the last two examples given.

The separability doctrine was first established in the UK in the case of Heyman v Darwins (1942), where it was clarified that an arbitration clause is separate or autonomous from the main contract. For the sake of interest, the equivalent seminal case in the US is Prima Paint Corp. v Flood & Conklin Mfg. Co. (1967), where the 1925 Federal Arbitration Act was interpreted to require any challenge to the enforceability of an underlying contract to be heard first by an arbitrator, not a court, unless the claim is that the arbitration clause itself is unenforceable.

Extraits

[...] Conclusion From the above, it is evident that the separability doctrine has become an established and widelyrecognised principle over time. It tells us that the jurisdiction of the arbitrators in such cases can be questioned essentially only if the challenge is directly specifically and explicitly to the arbitration clause. The doctrine has been developed through case law which defines its boundaries. However, ambiguities still remain over it and only time can tell us how these doubts will subsequently be resolved. [...]

[...] Bibliography Sklenyte, Aiste. “International Arbitration: the Doctrine of Separability and Competence-Competence Principle.” The Aarhus School of Business http://pure.au.dk/portal-asbstudent/files/2372/000126197-126197.pdf Smit, Robert H. “Separability and Competence-Competence in International Arbitration: Ex Nihilo Nihil Fit? Or Can Something Indeed Come From Nothing?” Paper presented at the spring meeting for the American Bar Association, Section of International Law and Practice, Washington, D.C., May http://www.stblaw.com/google_file.cfm?TrackedFile=6B46113B5E8CBB828FBA7101C4A829F1 439B10&TrackedFolder=585C1D235281AED9B6A07D5F9F9478AB5A90188899 Wikipedia. [...]

[...] Hence, in the US case Buckeye Check Cashing Inc. v Cardegna (2006), it was decided that when it comes to voidable contracts, the arbitrator will rule on all issues including the legality of the contract unless the arbitration clause itself is challenged. It is also interesting to note that in the US, the severability doctrine is not only to allow the authority of the arbitrators to survive the invalidity of the contract; it also goes so far as to allow the arbitrators to decide on threshold questions, which distinguishes the separability doctrine as it is known in the US from the rest of the world. [...]

[...] This doctrine has been incorporated into numerous international arbitration conventions and institutional rules, as well as national arbitration laws, including but not limited to: 1961 European Convention on International Commercial Arbitration, Art. 1998 ICC Arbitration Rules, Art. UNCITRAL Arbitration Rules (as revised in 2010), Art. 2009 AAA International Arbitration Rules, Art. 1998 LCIA Arbitration Rules, Art ; 1985 UNCITRAL Model Law on International Commercial Arbitration, Art. 1996 English Arbitration Act, section German Code of Civil Procedure (Zivilprozessordnung), section 1040; 1987 Swiss Law on Private International Law, Art. 178(3); Lithuanian Law on Arbitration, Art. 1958 New York Convention, Art. [...]

[...] I will explore the separability doctrine by examining its origin and rationales; its corollaries; and (III) any remaining ambiguities surrounding it. I. Origin and rationales of the separability doctrine The separability doctrine was first established in the UK in the case of Heyman v Darwins (1942), where it was clarified that an arbitration clause is separate or autonomous from the main contract. For the sake of interest, the equivalent seminal case in the US is Prima Paint Corp. v Flood & Conklin Mfg. [...]