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ARBITRATION LAW
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The Separability of an Arbitration Clause from the
Underlying Contract
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Att. Fatih Isik
Introduction
Arbitration is an alternative dispute resolution method based on the
consent of the parties, which is often preferred to domestic judicial systems
for the settlement of disputes arising from international commercial
relationships. A dispute may be brought to arbitration where the parties
have voluntarily entered into an arbitration agreement. Thus, as long as
the subject matter of the dispute is arbitrable, the parties may decide to
settle the dispute through arbitration.
An arbitration agreement may be concluded as a separate agreement,
or as a clausewithin a contract between two parties. Arbitration agreements
concluded within a contract are defined as “arbitration clauses”. In
practice, almost all arbitration agreements are concluded in the form of
arbitration clauses.
Although the arbitration clause is a part of the underlying contract,
they are essentially independent from each other. This is referred to as
the “separability”, “severability” or “autonomy” of the arbitration clause.
This article will focus on this notion, known as the “separability” of the
arbitration clause.
Principle of Separability
In most disputes, the validity of the agreement is in question. For
instance, if a party claims non-performance of the agreement by the
other party, the latter will claim that the agreement is invalid, if possible.
However, in order to conduct arbitration proceedings, the arbitration
clause should remain unaffected by the claim of invalidity. In this context,
the doctrine of separability has been introduced and accepted in the
practice of international commercial arbitration. The separability of the
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Article of July 2013