Doctrine Of Separability
Doctrine of Serparability
* Vivek Chattopadhyay1
The Doctrine of Separability is one that is recognized worldwide. From the angle of Arbitration, it essentially means that, in a contract if there is an Arbitration clause, it shall be treated separately with respect to the contract. So, if, the Contract becomes void due to some reason or the other, the Arbitration clause with respect to the Doctrine, does not. Even if the validity of the Arbitration Clause is to be adjudicated upon, the jurisdiction to do the same is with the Arbitration Tribunal.
The Doctrine, was first articulated in the United States Supreme Court during the case of Prima Paint Corporation v. Flood & Conklin Manufacturing Company.2 The Court had carefully distinguished in the case, that, the Plaintiff had challenged the contract in general and, the defendant, was correct in their assertion that, it was indeed the job of an Arbitrator to find out the Plaintiff’s fraudulent inducement claims and not the court’s and held that, the Arbitration clause of the contract was itself valid though the contract have been rendered void. The court also added that, in situations where parties come before the court and claim to have never agreed to Arbitration or that, the same consent was consent through fraudulent means, the doctrine would not apply. This is when the Doctrine originated in the United States. In addition to what the US Supreme Court had said, courts in the State of Alabama have also held in the case of Camaro Trading Co. v. Nissei Sangyo America, Ltd.3 that, contracts which are void ab initio are “Challenges to the very existence of the contract” as opposed to “attempts to avoid or to rescind a contract” which are subject to Arbitration.
Now, moving on to the Scenario in England.
The Eleventh Circuit adopted the doctrine in Chastain v. Robinson-Humphrey Co.4, where it went on to focus specifically on the “assent” part of the Arbitration agreement by stating that, “[Under] normal
* Vivek Chattopadhyay1
The Doctrine of Separability is one that is recognized worldwide. From the angle of Arbitration, it essentially means that, in a contract if there is an Arbitration clause, it shall be treated separately with respect to the contract. So, if, the Contract becomes void due to some reason or the other, the Arbitration clause with respect to the Doctrine, does not. Even if the validity of the Arbitration Clause is to be adjudicated upon, the jurisdiction to do the same is with the Arbitration Tribunal.
The Doctrine, was first articulated in the United States Supreme Court during the case of Prima Paint Corporation v. Flood & Conklin Manufacturing Company.2 The Court had carefully distinguished in the case, that, the Plaintiff had challenged the contract in general and, the defendant, was correct in their assertion that, it was indeed the job of an Arbitrator to find out the Plaintiff’s fraudulent inducement claims and not the court’s and held that, the Arbitration clause of the contract was itself valid though the contract have been rendered void. The court also added that, in situations where parties come before the court and claim to have never agreed to Arbitration or that, the same consent was consent through fraudulent means, the doctrine would not apply. This is when the Doctrine originated in the United States. In addition to what the US Supreme Court had said, courts in the State of Alabama have also held in the case of Camaro Trading Co. v. Nissei Sangyo America, Ltd.3 that, contracts which are void ab initio are “Challenges to the very existence of the contract” as opposed to “attempts to avoid or to rescind a contract” which are subject to Arbitration.
Now, moving on to the Scenario in England.
The Eleventh Circuit adopted the doctrine in Chastain v. Robinson-Humphrey Co.4, where it went on to focus specifically on the “assent” part of the Arbitration agreement by stating that, “[Under] normal