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  • The Doctrine of Severability or Separability

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    Titus Mwinama
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    The doctrine of severability or separability refers to the principle that an arbitration clause is considered a separate agreement from the main contract. This means that if a contract is found invalid or unenforceable, the arbitration clause remains valid and enforceable. The doctrine has several implications: 1) challenges to the main contract do not necessarily affect the arbitration clause, allowing disputes to be resolved through arbitration even if issues exist with the contract; 2) arbitrators can rule on their own jurisdiction to decide issues; and 3) courts have limited powers to intervene in arbitration proceedings and must generally uphold arbitration agreements. In conclusion, the doctrine recognizes arbitration clauses as independent and allows disputes to be arbitrated even if the underlying contract has issues.

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    THE DOCTRINE OF SEVERABILITY OR SEPARABILITY IN ARBITRATION

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    THE DOCTRINE OF SEVERABILITY OR SEPARABILITY

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    The doctrine of severability or separability refers to the principle that an arbitration clause is considered a separate agreement from the main contract. This means that if a contract is found invalid or unenforceable, the arbitration clause remains valid and enforceable. The doctrine has several implications: 1) challenges to the main contract do not necessarily affect the arbitration clause, allowing disputes to be resolved through arbitration even if issues exist with the contract; 2) arbitrators can rule on their own jurisdiction to decide issues; and 3) courts have limited powers to intervene in arbitration proceedings and must generally uphold arbitration agreements. In conclusion, the doctrine recognizes arbitration clauses as independent and allows disputes to be arbitrated even if the underlying contract has issues.

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    © All Rights Reserved
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    42 views1 page

    The Doctrine of Severability or Separability

    Uploaded by

    Titus Mwinama
    The doctrine of severability or separability refers to the principle that an arbitration clause is considered a separate agreement from the main contract. This means that if a contract is found invalid or unenforceable, the arbitration clause remains valid and enforceable. The doctrine has several implications: 1) challenges to the main contract do not necessarily affect the arbitration clause, allowing disputes to be resolved through arbitration even if issues exist with the contract; 2) arbitrators can rule on their own jurisdiction to decide issues; and 3) courts have limited powers to intervene in arbitration proceedings and must generally uphold arbitration agreements. In conclusion, the doctrine recognizes arbitration clauses as independent and allows disputes to be arbitrated even if the underlying contract has issues.

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    © All Rights Reserved
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    THE DOCTRINE OF SEVERABILITY OR SEPARABILITY

    The doctrine or separability or severability refers to the principle that an Arbitration


    clause in a contract is considered to be a separate and independent agreement from
    the rest of the agreement. This means that if a dispute arises between the parties to a
    contract, the Arbitration clause remains valid and enforceable even if it is found that
    the contract is found to be invalid or unenforceable or null and void. The law on this
    aspect is provided for under Article 16(1) of the UNCITRAL MODEL LAW.
    The doctrine of separability has several implications for arbitration proceedings.
    First, it means that challenges to the validity or enforceability of the main contract
    do not necessarily affect the validity or enforceability of the arbitration clause. This
    allows parties to resolve their disputes through arbitration even if there are issues
    with the underlying contract.
    Second, it means that arbitrators have jurisdiction to rule on their own jurisdiction
    (also known as competence-competence). This means that if one party challenges
    the validity or scope of the arbitration clause, the arbitrator can rule on this issue
    before deciding on the merits of the dispute.
    Third, it means that courts have limited powers to intervene in arbitration
    proceedings. Under the doctrine of separability, courts are generally required to
    uphold and enforce arbitration agreements, even if they are part of contracts that are
    otherwise invalid or unenforceable. This reflects the pro-arbitration policy of most
    legal systems, which seek to promote the autonomy and finality of arbitral awards.
    In conclusion, the doctrine of separability or severability is a fundamental principle
    in arbitration law that recognizes the independence and autonomy of arbitration
    clauses in contracts. It allows parties to resolve their disputes through arbitration
    even if there are issues with the underlying contract, and it limits the powers of courts
    to intervene in arbitration proceedings.
    The Landmark case to the Doctrine of Severability or Separability is the case of
    PRIMA PAINT CORPORATION Vs. FLOOD & CONKLIN MFG. CO

    ADR-Notes by Titus Mwinama, LLB Undergraduate-Year 2-2023, UNZA.

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