The Doctrine of Separability states that an arbitration clause is separable and independent of the substantive contract. This means that even if various clauses of substantive contract are void, that does not invalidate the arbitration clause if the substantive contract can be separated from the substantive contract. This is a very important concept that promotes arbitration mechanism as it looks at an agreement in a multi-faceted manner to keep the arbitration clause alive even if other parts of the contract are invalid. This doctrine creates a beautiful and delicate bridge in the contract between the arbitration clause that is based on the contract as a whole and the rest of the contract, such that the arbitration clause is totally based on the substantive contract, but this doctrine keeps the arbitration clause at a safe distance to prevent it from any harm that a void clause in the contract might cause. This concept is stated in Section 7 of the English Arbitration Act and Article 178(3) of the Swiss Private International Law Act, 1987. This concept is further used by courts in various cases like the Fiona Trust & Holding Corp v. Privalov[1], and the Prima Paint Corp. v. Flood & Conklin Mfg. Co.[2].
The concept of Kompetez-Kompetez means that an arbitral Tribunal has the right to adjudicate on its own jurisdiction. This concept is a pro arbitration mechanism as it empowers the Arbitral Tribunal. Although the final say is always upon the National Courts, but for jurisdictional issues also, parties need to first raise their challenge before the Arbitral Tribunal itself and cannot directly seek redressal from the National Courts. This concept is stated in Section 30 of the English Arbitration Act and Article 186 of the Swiss Private International Law Act, 1987. This concept is further used by courts in various cases like First Options of Chicago, Inc. v. Kaplan[3], and Bina Modi v. Lalit Modi[4].
Both these concepts are mentioned in Article 16 of the UNCITRAL Model Law and thus both are not just pro arbitration but also both are subject to review by National Courts. The differences between these two concepts are as follows:
| Doctrine of Separability | Doctrine of Kompetenz-Kompetez | |
| Stage | This doctrine comes into play at multiple stages of proceedings | This doctrine comes into play only at the stage wherein the jurisdiction of the tribunal is challenged before the tribunal. |
| Origin of Power | The origin of this doctrine is from the arbitration agreement and the contract. | The origin of this doctrine is merely from the fact that the Arbitral Tribunal has been constituted and arbitration has commenced. |
| Scope | This doctrine is much wider in scope as it can used at multiple stages of adjudication. | This doctrine is narrower as its usage arises only when the jurisdiction is discussed. |
| Effect | This is merely a pro arbitration doctrine, having no positive or
negative effect. |
This can have both positive and negative effect. This court has negative effect for a party approaching the National Court wherein the National Court will not adjudicate and refer the matter to arbitration. On the same hand, it also has a positive effect of empowering the Arbitral Tribunal and Arbitration Mechanism as a whole. |
[1] [2007] UKHL 40
[2] 388 U.S. 395 (1967)
[3] 514 U.S. 938
[4] 2020 SCC OnLine Del 901
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