Separability in international commercial arbitration; confluence, conflict and the appropriate limitations in the development and application of the doctrine

Feehily, Ronán

Abstract

The doctrine of separability in international commercial arbitration recognizes that an arbitration clause in a main contract is presumptively a separate and autonomous agreement. The extent to which the doctrine has developed varies and depends upon the legislative and more pertinently, the judicial approach in the relevant jurisdiction. This article begins with an overview of the justifications for the development of the doctrine and a discussion of competence-competence, the distinct but associated doctrine that provides the arbitral tribunal with the power to decide upon its own authority. It subsequently analysis the development of the separability doctrine, including the consistency and divergence with which the doctrine has developed and been applied by the courts in various jurisdictions, most notably England and the USA. The critical issues of illegality and consent, the appropriate exceptions to or limitations on the doctrine, the overreaching nature and potential negative impact of the doctrine are analysed, reviewed, and discussed. The article ultimately provides a number of recommendations to assist in ensuring that parties receive the appropriate assistance provided by the doctrine and that arbitral tribunals possess the necessary powers that the parties and their advisors intended.

Citation

Feehily, R. (2018). Separability in international commercial arbitration; confluence, conflict and the appropriate limitations in the development and application of the doctrine. Arbitration International, 34(3), 355-383. https://doi.org/10.1093/arbint/aiy026

• Journal Article Type: Article
• Online Publication Date: Sep 14, 2018
• Publication Date: Sep 1, 2018
• Deposit Date: Sep 26, 2024
• Journal: Arbitration International
• Print ISSN: 0957-0411
• Publisher: Oxford University Press
• Peer Reviewed: Peer Reviewed
• Volume: 34
• Issue: 3
• Pages: 355-383
• DOI: https://doi.org/10.1093/arbint/aiy026
• Public URL: https://durham-repository.worktribe.com/output/2745013