The Separability of the Arbitration Agreement: Is It “Subject to Details”?

Abstract

Under the doctrine of separability, the arbitration agreement holds a separate and distinct existence from the matrix contract of which it is intended to form part. It follows that, in principle, the validity of an arbitration agreement does not depend on the validity of the contract in which it is contained. However, the materialisation of the doctrine in practice may not be as straightforward as thought it would be. In The Newcastle Express, the English court was asked to address the issue of whether a subject clause of a proposed charterparty would have the effect of rendering the arbitration agreement invalid. This article thus discusses whether the judgment in The Newcastle Express somewhat put a dent in the doctrine of separability or if it could be explained on different grounds. © 2023, Thomson Reuters. All rights reserved.