Authored By: BIYINZIKA JAEL KAKULIRA
Disputes are bound to happen in business and arbitration is one way that has been recognised internationally and nationally to settle conflicts that arise due to commercial relationships because of the advantages attributed to it. An arbitration is a dispute resolution mechanism through which a legal dispute based on a contract is settled by the parties according to their agreement, litigation is not involved. There is no standard explanation of the term, arbitration due to its adaptability to meet the requirements of various legal systems.
There must be an arbitration agreement for a dispute to be resolved through arbitration, the lack of one prevents the parties’ ability to arbitrate their conflicts. The parties can also choose to bring an arbitration agreement to life through a submission agreement, that is to say instances where there was no arbitration agreement but parties wish to have their disputes arbitrated, they can have a submission agreement in place.
Through an arbitration clause parties to a contract engage with an arbitral tribunal to settle their conflicts. Therefore, parties are able to prevent court intervention in their issues. This clause is premised on key standards. These standards are put in place for the process of International Commercial arbitration to effectively function.
The Principle of separability is one of the vital principles which is also known as the autonomy of the arbitration clause. Parties to a contract with an arbitration clause agree to establish two contractual relationships. A separate agreement within the main contract is recognised under this doctrine, and the clause survives even in the event of invalidity, breach, or end of the contract. This principle has led to the growth of arbitration as a whole.
The arbitration agreement, being independent from the main contract, may be governed by laws that are different from those governing the main contract. This could be due to the need to ensure that the arbitration clause is more implementable in the chosen jurisdiction.
Thesis Statement: This piece states that the doctrine of separability preserves the parties’ aim to arbitrate by enabling the arbitration agreements to thrive even when the main contract is disputed, thereby improving legal certainty and boosting international commercial arbitration.
Some schools of thought believe that the arbitration agreement is just an additional clause and should not be given superiority but still recognise its effectiveness. It is required to give an essential rationale as to why the arbitration agreement is independent.
Schwebel’s Four Justifications: According to Schwebel, an arbitration agreement is an agreement that is separate from the main agreement for four reasons. Firstly, that all disputes will be resolved through arbitration, which is treated as an implied condition in the arbitration agreement. Therefore, the severability doctrine is a way of giving effect to intention of the parties.
The second reason is that by contesting against the legality of a main contract, a party can cancel the power of the arbitrator to decide on the matter, which presents a chance for parties to deny their duty to arbitrate. Advantages of arbitration, such as speed and reduced costs are pushed to the side. Even worse, there is no internationally recognised court to determine or enforce the validity of contracts.
Thirdly, the legal imagination is that parties to a contract with an arbitration clause enter two contracts and this fiction is explained by what happens when parties physically enter into two separate agreements so it is only logical that the two are treated differently from each other.
Fourth reason is that it is common practice that the courts mostly analyse the arbitral award and not the disputes, so the doctrine of separability should be accepted in order for it to continue that way.
The doctrine is recognised and accepted both internationally and nationally through statutes, rules, as well as judicial precedents as seen below.
The doctrine has been included in various international arbitration rules such as United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, 2021, UNCITRAL Model Law and the ICCA Arbitration Rules. National Laws of countries such as Switzerland, England, the United States of America, India, Indonesia and Malaysia among others have incorporated the principle as well.
International Recognition of the Doctrine: Article 21(Paragraph 1) of the UNICTRAL Rules reflects the principle of separability, which declares that an arbitration clause which is part of a contract and provides for arbitration under the Rules shall be treated as an agreement autonomous of the other terms of the contract.
A decision by the arbitral tribunal that the contract is void shall not entail ipso jure, the invalidity of the arbitration clause.
Article 16 (Paragraph 1) of the Model Law clearly accepts the separability doctrine. The article is to the effect that the arbitral tribunal may give a directive on its jurisdiction, including any challenges regarding the validity of the arbitration agreement. For that purpose, an arbitration clause that forms part of a contract shall be taken as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null shall not entail ipso jure the invalidity of the arbitration clause. The second sentence of the article, is essentially the identical to the provisions of Article 21 Paragraph (2) of the UNCITRAL Arbitration Rules.
ICC Arbitration Rules are another international instrument that acknowledge the separability doctrine. The ICC is an arbitration institution that first approved the separability doctrine of an arbitration agreement in 1955. In Article 6 Paragraph (9) of the ICC Arbitration Rules, the separability principle is expressly acknowledged that, unless otherwise agreed, the arbitral tribunal shall not stop having jurisdiction by grounds of any allegation that the contract is void, provided that the arbitral tribunal maintains the validity of the arbitration agreement. The arbitral tribunal shall continue to have power to settle on the parties’ respective rights and to decide their claims even though the contract itself may be void.
Various Approaches to the Doctrine: In the United States, for example, this doctrine was first recognised in 1967 in the case of Prima Paint Corp. v. Flood & Conklin Mfg. Co.In the case the court held that the arbitration clauses are separable from the main agreement in which the clauses are included, and there is no claim that fraud has occurred regarding the arbitration clause itself, a broad arbitration clause would be taken as covering arbitration against claims that the principal agreement itself was made for fraud.
In Switzerland, for example, this doctrine has been recognised since 1931 by a Federal Court decision ruling that the cancellation of the main agreement had no effect on an arbitration clause under Swiss law. This view has been regularly applied ever since and safeguarded in the Swiss Private International Law Act 1987.
In England, this doctrine was first recognised in 1942 in the Heyman v Darwins Ltd. , where the House of Lord decided that the dispute over whether a contract had been canceled was within the scope of the arbitration clause.
Further developments in the case of Harbor Assurance Co. Ltd. v. Kansa General International Insurance Co. Ltd., this separability principle has been expanded to include canceled agreements. In the UK the separability doctrine has received full recognition with the enactment of the Arbitration Act 1996 under Article 7.
The more recent cases of Buckeye Check Cashing Inc. v John Cardegna, it was decided that regarding the alleged invalidity of the principal agreement, except for the claim against the arbitration clause, the issue of the legitimacy of the agreement is determined by the arbitrator.
And also, in the case of Beijing Jianlong Heavy Industry Group v. Golden Ocean Group Ltd, the court enforced an arbitration agreement even if the main contract was rendered unenforceable due to the violation of public policy rules.
Application to Arbitral Awards: The Separability principle applies to arbitral awards. It was decided in the case of RS Jiwani v Icon International Ltd.where the court held that an arbitral award can be separated in situations where part of it is unlawful and unable to be implemented, and the other part, which is legal, can be imposed.
Advantages of the Principle of Separability: The consequences/ advantages of the doctrine of separability include independence of the arbitration agreement from the main contract and arbitrators being free to settle on their jurisdiction under the main agreement, which is recognised as the principle of competence-competence.
Disadvantages of the Principle: The disadvantages of the doctrine of separability include raises an issue by taking away the liberty to contract which is key rule of contract law. By putting the arbitration clause over other terms in the main contract, the defendant is not able to argue that the illegality of the main contract as the reason why the same should not be upheld.
The parties to arbitration give up their rights for the courts of law to hear their disputes. Parties cannot then choose to benefit from court litigation when they choose to arbitrate.
Limits of the Doctrine: The arbitration agreement should be in line with the principles of a valid contract. When it comes to the validity of an arbitration agreement, the separability doctrine ceases to apply. Courts retain the power to determine the validity of an arbitration agreement itself.
This piece states that the doctrine of separability preserves the parties’ aim to arbitrate by enabling the arbitration agreements to thrive even when the main contract is disputed, thereby improving legal certainty and boosting international commercial arbitration.
Inconclusion, separability principle is a key driver in the development of modern arbitration. It ensures that once an arbitration agreement embedded in the main contract, it is considered independent even when the validity of the main contract is contested. This autonomy enables the arbitral tribunals to rule on their jurisdiction including issues of validity of the main contract. At the end of the day, the doctrine enables the parties to fulfil their intentions to arbitrate and benefit from the neutrality and efficiency that arbitration offers.
BIBLIOGRAPHY
Beijing Jianlong Heavy Industry Group v. Golden Ocean Group Ltd [2013] EWHC (Comm)
Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S 395
RS Jiwani v Icon International Ltd (2009) No. 245
Buckeye Check Cashing Inc. v John Cardegna (2006) 546 U.S 440
Heyman v Darwins Ltd. [1942] AC 356
United Nations Commission on International Trade Law (UNCITRAL Arbitration Rules), 2021
United Nations Commission on International Trade Law (UNCITRAL) Model Law
International Chamber of Commerce Rules of Arbitration (ICC Arbitration Rules)
Ayten Mustafayayeva, ‘Doctrine of Separability in International Commercial Arbitration’ (2015) Vol. No. 1
Kayode Filani, ‘The Doctrine of Competence – Competence & Separability in International Arbitration by Kayode Filani’
Vidhur Malhotra, ‘Revisiting the Principle of Severability in Arbitration law’ (2012) <https://blog.ipleaders.in/revisiting-the-principle-of-severability-in-arbitration-law/ >
AL Ditedu, ‘The Doctrine of Separability in respect of the Arbitration clause of a Contract’ (2014) <https://repository.nwu.ac.za/server/api/core/bitstreams/71d7e150-07fe-42a9-8914-2b31e1062e2a/content > accessed 28th November 2025
Winner Sitorus, ‘Separability Doctrine In Arbitration Agreement (A Comparative Study)’ (2021) Vol. 24 Special Issue 6. <https://www.abacademies.org/articles/separability-doctrine-in-arbitration-agreement-a-comparative-study.pdf > accessed 30th November 2025
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