The Importance of Having a Connection

Abstract

> The Doctrines of ‘Separability’ of the Arbitration Agreement and ‘Competence de la Competence’ in English Law: A Comment on the Judgment of the Court of Appeal in Ashville Investments v. Elmer Contractors (1987) 37 BLR 55. In international arbitration literature a wide range of complex legal issues pertaining to the proper scope of the jurisdiction of arbitrators is often discussed under the headings of the doctrines of separability (or severability) and competence de la competence . Neither concept (and especially not the latter) is widely used in England where however the legal analysis of the actual problems, both by courts and scholars, has been varied and extensive and in many respects more incisive than elsewhere. Writing in 1983, Sir Johan Steyn provided the following brief summary of the position of English law, and its likely future development, on most of the crucial questions of relevance in this context1: ‘The orthodox view in England is that disputes as to 1. whether a contract containing an arbitration clause was ever concluded; 2. whether such a contract was void ab initio; 3. whether such a contract set out the true intention of the parties or should be rectified; fall outside the scope of an arbitration clause in the contract. On the other hand, the English courts have categorised and treated the arbitration clause in a contract as a wholly severable agreement for certain purposes, ie, it survives the termination of the principal contract by fundamental breach, breach of condition or frustration. The concept of the separability of the arbitration clause has not been fully worked out by the English courts, but it is thought that one may be witnessing the gradual evolution of such a concept. It is possible therefore that propositions (ii) and (iii) mentioned above will be re-examined by the courts but …