The significant increase in the role of international trade in the economic development of nations over the last few decades has been accompanied by a considerable increase in the number of commercial disputes as well. In India too, rapid globalization of the economy and the resulting increase in competition has led to an increase in commercial disputes. At the same time, however, the rate of industrial growth, modernization, and improvement of socio economic circumstances has, in many instances, outpaced the rate of growth of dispute resolution mechanisms. In many parts of India, rapid development has meant increased caseloads for already overburdened courts, further leading to notoriously slow adjudication of commercial disputes. As a result, alternative dispute resolution mechanisms, including arbitration, have become more crucial for businesses operating in India as well as those doing businesses with Indian firms.
Doctrine of separability In most disputes, the validity of the agreement is in question. For instance, if a party claims non-performance of the agreement by the other party, the latter will claim that the agreement is invalid, if possible. However, in order to conduct arbitration proceedings, the arbitration clause should remain unaffected by the claim of invalidity. In this context, the doctrine of separability has been introduced and accepted in the practice of international commercial arbitration. The separability of the arbitration clause from the underlying agreement has been accepted as a principle which allows for arbitration proceedings related to an agreement whose validity is put into question. Consequently, even if the underlying agreement is pronounced invalid for any reason, the arbitration clause will remain valid; on the other hand, if the arbitration clause is invalid, the underlying contract will remain valid and the dispute arising from the underlying agreement will be resolved before national courts. According to the separability principle, the invalidity of the underlying agreement will not have an impact on the arbitration clause; likewise, the invalidity of the arbitration clause will not render the underlying agreement invalid. In other words, the requirements for validity of the arbitration agreement may differ from those sought for the validity of the underlying agreement. For instance, in Turkish law, a representative may conclude a share purchase agreement on behalf of the principal and this does not necessitate that the representative have specific authority to do so. However, the same representative needs specific authority to conclude an arbitration agreement on behalf of the same principal. In such event, the provisions of the share purchase agreement concluded by the representative will be valid, except for the arbitration clause, due to lack of specific authority. Indeed, the arbitration clause and the underlying agreement are two different agreements despite the fact that both exist within the same text. While the underlying agreement creates a relationship of obligation between the parties, the arbitration agreement solely addresses the settlement of disputes between the parties. Due to aforementioned reasons, the principle of separability establishes that the arbitration agreement and the underlying agreement have different qualities; the arbitration agreement is juridical autonomous and shall not be affected when the main contract is rendered invalid. Nonetheless, this principle does not necessarily require that the "fate" of these two agreements is always different. Certain reasons invalidating the underlying agreement may affect the validity of the arbitration agreement as well. For instance, where either or both parties are found to lack the capacity to have entered into the agreements, both agreements will be deemed invalid. Similarly, the arbitration agreement will be assigned to a third party if the underlying agreement is assigned (provided that the assignee consents to arbitrate). The effect of the separability of arbitration agreements upon the choice of applicable law should also be analysed; i.e. whether the law applicable to the underlying agreement will be, automatically, different from the law applicable to the arbitration agreement by reason of its separability. In other words, is the choice of law applicable to the main contract also applicable to the arbitration agreement? This issue is especially important for arbitration clauses. Choice of law and arbitration clauses are often stipulated in international agreements; either as part of the same phrase, or as two paragraphs of the same article, or as consecutive articles. In such cases, it should be analysed on a case by case basis whether or not the applicable law stated in the choice of law clause shall apply to the arbitration agreement or not. I n I ndia The Indian Arbitration and Conciliation Act, 1996, being reproduction of the UNCITRAL Model Law on Arbitration, contains the doctrine of separability under Section 16. The Indian courts have frequently relied upon the separability presumption to reject jurisdictional challenges, but these decisions cannot properly be considered final, substantive application of the separability presumption. In National Agricultural Coop. Mktg. Federation India Ltd. v. Gains Trading Ltd, the Supreme Court held that an arbitration clause is a collateral term in the contract, which relates to resolution of disputes, and not performance. Even if the performance of the contract comes to an end on account of repudiation, frustration or breach of contract, the arbitration agreement would survive for the purpose of resolution of disputes arising under or in connection with the contract.
Limitations to the applicability of the doctrine of separability
On the basis of the analysis of the doctrine of separability in the aforementioned jurisdictions, it is quite evident that the courts in different countries have set forth certain limitations and conditions under which the doctrine is applied. It is pertinent to observe that if an agreement contains an obligation to arbitrate disputes arising under it, but the agreement is invalid or no longer in force, the obligation to arbitrate disappears with the agreement of which it is a part. If the agreement was never entered into at all, its arbitration clause never came into force. If the agreement was not validly entered into, then, prima facie, it is invalid as a whole, as must be all of its parts, including its arbitration clause.
Conclusion
The doctrine of separability is a useful tool to maintain the sanctity of the institution of arbitration, and the arbitrator jurisdiction. It has been mainly applied in circumstances wherein one of the parties has resorted to undue court interference, merely by alleging certain defaults in the underlying contract, and thereby frustrating the arbitration proceedings. The courts have unanimously agreed that unless expressly or by necessary implication, the parties have excluded certain disputes from the ambit of arbitration, the parties intend to resolve the dispute through arbitration, if the contract contains a specific arbitration clause. In the same sync, this doctrine has been invoked giving thereby, the jurisdiction to the arbitrator to adjudicate upon the dispute, on the basis of the arbitration clause. But at the same time, it should be carefully borne in mind that it should not be available in all situations of arbitration clause being part of the contract.
NAME : ANKIT AGRAWAL MBA 1 , ROLL NO : 14202151 KIIT School of Management
A Simple Guide for Drafting of Conveyances in India : Forms of Conveyances and Instruments executed in the Indian sub-continent along with Notes and Tips