Separability Revisited: Arbitration Clauses and Bribery

Abstract

The decision of the UK Court of Appeal in Fiona Trust & Holding Corp. v. Privalov has cemented the doctrine of separability of the arbitration agreement even more firmly in its place and shown that there is very little that can now be argued as falling outside of the jurisdiction of the arbitrators. Despite the seriousness with which it is regarded, bribery in the formation of a contract was held not to be sufficient grounds to remove the matter from the jurisdiction of the arbitrators. This article discusses the background to the Court’s decision and in particular reviews the need for “something more,” something that shows that there was fraud, misrepresentation, undue influence, or bribery in the formation of the arbitration agreement itself, before a Court will find that it is invalid.