Abstract
The separability doctrine, also called the severability doctrine, states that an arbitration clause is separable from the main contract underlying it, and can thereby survive any successful challenge to the latter. This doctrine has been incorporated into numerous international arbitration conventions and institutional rules, as well as national arbitration laws, including but not limited to: 1961 European Convention on International Commercial Arbitration, Art. V(3); 1998 ICC Arbitration Rules, Art. 6(4); UNCITRAL Arbitration Rules (as revised in 2010), Art. 23(1); 2009 AAA International Arbitration Rules, Art. 15(2); 1998 LCIA Arbitration Rules, Art. 23.1; 1985 UNCITRAL Model Law on International Commercial Arbitration, Art. 16(1); 1996 English Arbitration Act, section 7; German Code of Civil Procedure (Zivilprozessordnung), section 1040; 1987 Swiss Law on Private International Law, Art. 178(3); Lithuanian Law on Arbitration, Art. 19(1); 1958 New York Convention, Art. II(3). Some of these may be said to have included the doctrine by implication, such as the last two examples given.
The separability doctrine was first established in the UK in the case of Heyman v Darwins (1942), where it was clarified that an arbitration clause is separate or autonomous from the main contract. For the sake of interest, the equivalent seminal case in the US is Prima Paint Corp. v Flood & Conklin Mfg. Co. (1967), where the 1925 Federal Arbitration Act was interpreted to require any challenge to the enforceability of an underlying contract to be heard first by an arbitrator, not a court, unless the claim is that the arbitration clause itself is unenforceable.
