Are arbitration clauses considered separable from the main contract?

International Arbitration

Egypt Small Flag Egypt

Yes, the autonomy of the agreement to arbitrate is recognized as established through court precedents.

Austria Small Flag Austria

Yes. Arbitration agreements contained as clauses in a main contract are considered separable under Austrian law: Arbitration clauses qualify as independent agreements and thus are in most cases considered detached from to main contract. Arbitration agreements are considered procedural contracts. Hence, regardless of the law applicable to the main contract, the arbitration agreement is governed by Austrian law. In essence, therefore, Austrian case law leads to mainly the same conclusions as the international doctrine of separability.

France Small Flag France

French law recognizes the principle of the autonomy or separability of arbitration agreements (Article 1447, CCP).

The nullity of the main contract thus does not affect the validity of the arbitration agreement, and an arbitral tribunal has jurisdiction to rule on allegations made by a party as to the nullity of the main contract, if that contract contains a valid, or at least not manifestly void, arbitration clause.

In order to assess the validity of an international arbitration agreement, the French courts do not refer to the law applicable to the main contract (or to any national law). Instead the courts have established a “substantive” rule of international arbitration (règle matérielle) and look only to the parties’ consent to arbitrate their disputes as a factual matter (see Court of Cassation, First Civil Chamber, 20 December 1993, No. 91-16.828, Dalico). There is a presumption of validity, and a party challenging an arbitration agreement bears the burden of proving its nullity (see Court of Cassation, First Civil Chamber, 5 January 1999, No. 96-21.430, Zanzi).

Portugal Small Flag Portugal

Arbitration clauses, contained in a contract, are considered as an autonomous agreement. As a consequence, should the contract be considered set aside by the arbitration court, that does not imply, in itself, the setting aside of such clauses.

Romania Small Flag Romania

Both the Code of Civil Procedure and the rules of arbitration of CICA expressly provide for the separability of arbitration agreements, to the effect that the validity of the arbitration clause is independent from the validity of the contract comprising it.

Sweden Small Flag Sweden

Sweden recognizes the doctrine of separability.

New Zealand Small Flag New Zealand

Yes. Article 7 of Schedule 1 reflects the equivalent provision of the Model Law.

Switzerland Small Flag Switzerland

The concept of severability of the arbitration clause is explicitly stipulated in art. 178 para 3 PILA and art. 357 para 2 CPC. Both provisions provide for the arbitration agreement not to be contested on the grounds that the main contract is not valid or that the arbitration agreement concerns a dispute which had not yet arisen.

UAE Small Flag UAE

Yes, the doctrine of separability of arbitration clauses is recognised by the UAE courts. While the CPC is silent on this issue, it is established in various decisions of UAE courts that an arbitration clause is not affected by the nullity of the contract in which it is contained. The DIAC and ADCCAC Rules similarly provide for the separability of arbitration agreements, unless the parties agree otherwise.

The DIFC Arbitration Law states in Article 23(1) that an arbitration clause which forms part of a contract shall be treated as an independent agreement. Article 14 of the ADGM Arbitration Regulations also recognises the doctrine of separability and follows the approach of the English Arbitration Act.

Malaysia Small Flag Malaysia

Malaysia statutorily recognises the separability principle in section 18(2)(a) and (b), AA. The provisions acknowledge the self-contained nature of an arbitration agreement which is a contract distinct and collateral to the main contract. Accordingly, the invalidity or rescission of the main contract does not necessarily invalidate the arbitration agreement. Instead, the arbitration agreement continues to bind contracting parties. Consequently, an allegation that the main contract is null and void will not deprive an arbitral tribunal of its power to determine its jurisdiction or a claim under the contract. Nonetheless, the arbitration agreement is still susceptible to vitiating factors relating directly to the arbitration agreement, such as, mistake, duress, and bribery.

United States Small Flag United States

The FAA provides that a valid agreement to arbitrate is independent of the contract in which it is embedded and may survive even where the rest of a contract is held to be invalid. In particular, the US Supreme Court has ruled that a claim that a contract is invalid because it was induced by fraud will be subject to arbitration as long as the allegations of fraud or illegality do not extend specifically to the arbitration clause itself. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445–46 (2006).

Singapore Small Flag Singapore

Yes. The principle of separability is reflected in the IAA. IAA, First Schedule, Article 16(1). The Singapore courts have also followed it. See, e.g., Larsen Oil and Gas Pte Ltd v Petroprod Ltd (in official liquidation in the Cayman Islands and in compulsory liquidation in Singapore) [2011] 3 SLR 414 (Singapore Court of Appeal).

Brazil Small Flag Brazil

Yes, since Article 8 of Law nº 9.307/96 determined the autonomy of the arbitration clause, by providing, expressly, that the arbitration clause is autonomous in relation to the contract in which it is inserted, and that the nullity of the contract does not necessarily lead to the nullity of the arbitration clause.

Canada Small Flag Canada

Canadian jurisprudence establishes that arbitration clauses are independent agreements, separable from the main contract. If a contract is found void, the arbitration clause remains effective unless found void itself.

Panama Small Flag Panama

Arbitration clauses are considered separable from the main contract.

Spain Small Flag Spain

Yes they are under art. 22.1 of the Arbitration Law.

Turkey Small Flag Turkey

Yes. The arbitration clauses considered separable from the main contract. Invalidity of the arbitration clause in the main contract, does not cause the invalidity of the whole contract; or, any invalid provision of the main contract does not harm the valid and explicit arbitration intention of the parties written in the contract.

Germany Small Flag Germany

The doctrine of separability is applicable under German law. Thus, the arbitration clause is considered an independent agreement even if it is included in a larger contract document. That means he arbitration clause is separable from the other terms of the contract it is included in (section 1040 (1) ZPO). Consequently, the arbitration agreement can be valid even if the main contract is ineffective.

Italy Small Flag Italy

Under both Italian law and case law, arbitration clauses are autonomous from the main contract; the validity of an arbitration clause is therefore assessed independently from the underlying contract.

United Kingdom Small Flag United Kingdom

Yes (section 7).

Ireland Small Flag Ireland

Yes. Arbitration clauses are treated as independent agreements which are divisible from the other contractual terms. Therefore, if an arbitral tribunal decides that the contract is null and void, the arbitration clause will not be automatically invalidated.

Poland Small Flag Poland

Under Polish arbitration law, arbitration clauses are considered separable from the main contract. The doctrine of separability is recognized in art. 1180 §1 CPC, which provides that invalidity or expiration of the underlying agreement does not per se result in invalidity or expiration of the arbitration agreement.

Cyprus Small Flag Cyprus

Section 16(1) of the ICA Law states that an arbitration agreement which forms part of a contract is to be considered as a separate agreement from the rest of the contract and that an Arbitral Tribunal’s decision that the contract is void ab initio does not necessarily affect the validity of the arbitration agreement. Note however that section 9(2) of the Cap.4 allows the Cypriot Court to order at its discretion that the arbitration agreement shall cease to have effect when an issue of fraud on behalf of one of the parties is raised. This of course must go to the substance of the arbitration agreement itself.

Updated: October 17, 2017