Arbitration agreements—the doctrine of separability (England and Wales)
Arbitration agreements—the doctrine of separability (England and Wales)

The following Arbitration guidance note provides comprehensive and up to date legal information covering:

  • Arbitration agreements—the doctrine of separability (England and Wales)
  • The doctrine of separability under English law

This Practice Note considers the doctrine of separability under the law of England and Wales (England and English are used as shorthand throughout). This Practice Note should be read in conjunction with Practice Note: Separability of arbitration agreements in international arbitration, which considers the doctrine from an international perspective.

The doctrine of separability under English law

An arbitration agreement is to be treated as separate from the main agreement in which it is contained and, as such, survives the termination or invalidity of the main agreement—this is known as the ‘doctrine of separability’. The doctrine of separability is enshrined in English law pursuant to section 7 of the Arbitration Act 1996 (AA 1996):

'Unless otherwise agreed by the parties, an arbitration agreement which forms or was intended to form part of another agreement (whether or not in writing) shall not be regarded as invalid, non-existent or ineffective because that other agreement is invalid, or did not come into existence or has become ineffective, and it shall for that purpose be treated as a distinct agreement.'

The doctrine of separability was an established part of English law before the coming into force of AA 1996 (see, eg, Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping; Harbour Assurance v Kansa). AA 1996, s 7 is based on article 16(1) of the United Nations