terms of the contract. A decision by the arbitral tribunal that the contract is null and void shallnot entail ipso jurethe invalidity of the arbitration clause.2.105 Similarly, Article 23(2) of the LCIA Rules stipulates that, for the purpose of a ruling onjurisdiction:[A]n arbitration clause which forms or was intended to form part of another agreement shall betreated as an arbitration agreement independent of that other agreement. A decision by theArbitral Tribunal that such other agreement is non-existent, invalid or ineffective shall notentail (of itself)the non-existence, invalidity or ineffectiveness of the arbitration clause. 2.106 In the Gossetcase, the French Cour de Cassation recognised the doctrine ofseparability in very broad terms, as follows:In international arbitration, the agreement to arbitrate, whether concluded separately orincluded in the contract to which it relates, is always save in exceptional circumstances …completely autonomous in law, which excludes the possibility of it being affected by thepossible invalidity of the main contract.2.107 Five years later, the US Supreme Court also recognised the separability of the arbitrationclause in the Prima Paintcase, and modern laws on arbitration confirm the concept. Swisslaw, for example, provides that ‘[t]he validity of an arbitration agreement cannot be contestedon the ground that the main contract may not be valid’. 2.108 More recently, the Chinese courts have also accepted that:Where the main contract is not concluded (null) or does not come into effect after conclusion(void), it will not influence the effect of the arbitration clause agreed by the parties, as thearbitration clause is completely separable from the main contract. 2.109 An increasing number of countries have made their position clear by making theseparability of the arbitration clause part of their laws on arbitration. The number ofstates in which the concept has not yet been accepted is steadily diminishing. 2.110 An independent (or autonomous) arbitration clause thus gives the arbitral tribunal abasis on which to decide on its own jurisdiction, even if it is alleged that the main contract hasbeen terminated by performance or by some intervening event. Some laws and rules gofurther, to establish that the arbitration clause will survive even if the main contract thatcontains it proves to be null and void. However, this must depend on the reason for whichthe contract is found to be null and void (that is, is it a reason that will also affect the‘separate’ arbitration agreement?), and whether it is void ab initio.2.111 While the doctrine of separability is now accepted in principle in all developed arbitraljurisdictions, application of the doctrine continues to vary—even within jurisdictions—incircumstances in which the main contract is argued never to have come into existence at all.
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- Fall '18
- Arbitration, Model Law, New York Convention, arbitration centre