Arbitration has long been a preferred method of resolving disputes due to its flexibility, efficiency, and the expertise of arbitrators in specific fields. One foundational principle that underpins the efficacy is doctrine of separability in arbitration. This principle plays a crucial role in determining how disputes related to the arbitration agreement itself are managed, and it is central to the overall functioning of arbitration as a dispute resolution mechanism. This article explores the doctrine of separability, its importance, Shielding the Arbitration Agreement when the Parent Contract is Invalid, the Relationship with the Competence-Competence Principle and its limitations.

India’s legal framework also reflects the doctrine of separability, particularly under the Arbitration and Conciliation Act, 1996. Section 16 of the Act particularly talks about the “Competence of arbitral tribunal to rule on its jurisdiction” and clause (a) states that an arbitration clause from a main contract will be treated as an independent agreement, this means that the validity and enforceability of the arbitration agreement are considered independent of the validity of the contract as a whole. Indian courts have supported this doctrine in various rulings, underscoring the importance of maintaining the effectiveness of arbitration agreements irrespective of the main contract’s status. Section 16 also gives statutory recognition to the doctrine of competence-competence (also, “Kompetenz-Kompetenz”), which gives power to the arbitral tribunal to hear its own matter and to decide the extent of its competence

Concept of Doctrine of Separability in Arbitration

Arbitration agreements address the settlement of disputes between the parties and forms the basis of the arbitration mechanism, since the mechanism isn’t statutory and cannot be invoked without it. The doctrine of separability in arbitration treats an arbitration clause as a different agreement and separates it from the main contract. This independence means that any challenge to the main contract does not automatically invalidate the arbitration clause. It is a very well-established legal doctrine that protects arbitration agreements from the challenges that may arise against the contract. This doctrine aids the arbitral tribunal to function when its jurisdiction is challenged.

The principle of separability of arbitration agreements is widely endorsed by various arbitral institutions further solidifying it such as Indian Council of Arbitration (ICA), Delhi International Arbitration Centre (DIAC), Bombay Chamber of Commerce and Industry (BCCI), International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA), American Arbitration Association (AAA), Singapore International Arbitration Centre (SIAC), and Hong Kong International Arbitration Centre (HKIAC).

 Rationale and Importance

The doctrine of separability in Arbitration serves several crucial purposes in the arbitration landscape. First, it promotes the autonomy of arbitration agreements. By treating them as independent entities, parties are free to choose arbitration as their dispute resolution mechanism without being bound by the validity of the underlying contract. This autonomy fosters greater flexibility and efficiency in resolving disputes.

Secondly, the doctrine ensures predictability and certainty. By recognizing the separability of the arbitration agreement, parties can rely on its enforceability, even in the face of challenges to the main contract. This predictability is vital for businesses and individuals seeking to manage legal risks and ensure smooth operations.

Shielding the Arbitration Agreement when the Parent Contract is Invalid

Prior to the enactment of the Arbitration and Conciliation Act, 1996 the Supreme court in cases like ‘Union of India vs Kishorilal Gupta and Bros’,1959 held that ‘an arbitration agreement was an integral part of the underlying contract and that it would cease to exist in the eventuality of the main contract perishing for either not being concluded or being void ab initio.’ This scenario changed after the enactment of the said Act.

In the case of National Agricultural Co-op Marketing Federation of India Ltd. v. Gains Trading Ltd. (2007) one of the questions was whether an arbitration clause would come to an end if the contract containing such clause is repudiated? The Supreme Court held that an arbitration clause is a collateral term that is related to the dispute resolution and not the performance. Even if the contract is repudiated still the arbitration clause would survive for the resolution of the disputes which arise out of or in connection with the main contract. In the case of Today Homes & Infrastructure (P) Ltd. v. Ludhiana Improvement Trust, 2014 the two-judge bench held that an arbitration clause will be valid even if the main contract stands void.

Relationship with Competence-Competence Principle

The doctrine of separability in Arbitration is closely intertwined with the competence-competence principle. This principle allows the arbitral tribunal to decide on its own jurisdiction and competence, including the validity and enforceability of the arbitration agreement. However, the application of competence-competence is often subject to limitations, and courts may ultimately review the tribunal’s jurisdictional findings.

The separability doctrine, in this context, provides a framework for the tribunal to exercise its competence in determining the validity and enforceability of the arbitration agreement. It allows the tribunal to address challenges to the arbitration clause and proceed with the dispute resolution process, even if the underlying contract is contested.

Limitation

Despite its strengths, the doctrine of separability in Arbitration is not absolute. An exception to this doctrine was established in India Household and Healthcare v. LG Household and Healthcare 2007, wherein it was held that when allegations of fraud are raised, a different approach can be taken with respect to applying the doctrine of separability and upholding the arbitration clause. The doctrine of separability would not shield the arbitration clause from a challenge where the main contract was invalid for lack of authority or was procured by forgery.

Conclusion

The doctrine of separability in arbitration is a fundamental principle in arbitration that establishes the independence of an arbitration clause from the main contract.​ This principle is crucial in ensuring that an arbitration agreement remains valid even if the main contract becomes invalid or is terminated. However, the doctrine has its limitations, particularly concerning challenges to the underlying contract’s validity and the distinction between contract formation and contract validity. As arbitration continues to evolve, the doctrine of separability will remain a key principle in ensuring the robustness and resilience of arbitration as a preferred method of resolving disputes.

Expert Arbitration Lawyers at ACM Legal

At ACM Legal, our team of experienced arbitration lawyers specializes in navigating complex disputes, ensuring that your arbitration agreements remain enforceable even in challenging circumstances. With a deep understanding of the doctrine of separability in arbitration, we provide strategic guidance to protect your interests and resolve disputes efficiently. Trust ACM Legal for expert legal counsel in arbitration matters, empowering you to safeguard your business and legal rights.

 

FAQs on the Doctrine of Separability in Arbitration

1. What is the doctrine of separability in arbitration?

The doctrine of separability in Arbitration refers to the principle that an arbitration clause within a contract is treated as a separate agreement from the main contract. This means that even if the main contract is found to be invalid or unenforceable, the arbitration clause may still be valid and enforceable.

2. Why is the doctrine of separability important in arbitration?

It ensures that disputes over the validity of the main contract do not undermine the effectiveness of the arbitration clause, allowing arbitration to proceed even if the main contract is challenged.

3. How does the doctrine of separability affect the enforceability of an arbitration clause?

The doctrine helps to ensure that the arbitration clause remains enforceable even if the main contract is contested, thereby upholding the party’s intention to resolve disputes through arbitration.

4. How does the doctrine of separability in Arbitration apply in cases of fraud or misrepresentation?

If the main contract is alleged to be fraudulent or obtained through misrepresentation, the doctrine of separability in Arbitration typically ensures that the arbitration clause remains effective unless the arbitration clause itself is shown to be tainted by the same issues.

5. Are there any limitations or exceptions to the doctrine of separability in Arbitration?

Limitations may include situations where the arbitration clause is itself found to be invalid or where the entire contract is deemed void due to extreme legal reasons. Specific exceptions can vary based on the applicable legal framework.

 Author: Japneet Kaur Kohli, Associate

Co-Author: Divya Singh, Intern