Question

According to the "Doctrine of Separability" if the main contract is found to be void:

• A. The arbitration clause remains valid and enforceable.
• B. The parties must move the case to a criminal court.
• C. The arbitration clause is automatically void as well.
• D. The arbitrator loses their power to charge fees.

Hint:

This doctrine is essential for the effectiveness of international arbitration because it prevents a party from "killing" the arbitration by merely claiming the contract never existed.

Answer 1

The Correct Option is A

Concept: The 'Doctrine of Separability' (also known as the doctrine of severability) is a fundamental principle in arbitration law that treats the arbitration agreement as a distinct contract, separate from the underlying main contract in which it is contained.

Step 1: Understanding the necessity of separability.
If the arbitration clause were automatically voided whenever the main contract was challenged, any party wishing to avoid arbitration could simply allege that the main contract was invalid to bypass the arbitral tribunal. This would undermine the very purpose of an arbitration agreement.

Step 2: The legal operation of the doctrine.
Under this doctrine, the arbitration clause survives the invalidity of the main contract. This allows the arbitral tribunal to retain jurisdiction to decide whether or not the main contract is indeed void, thereby ensuring that the dispute resolution mechanism remains functional.

Step 3: Conclusion.
If the main contract is alleged to be void, the arbitration clause is treated as if it were a separate, independent agreement. Therefore, the tribunal has the authority to examine the dispute, even regarding the contract's initial validity. equation Effect of Separability = Arbitration clause survives the void contract equation center The arbitration clause remains valid and enforceable. center