The Relationship Between Separability and Kompetenz-Kompetenz in Commercial Arbitration
| Author | Alicia Algeo |
| Position | B.A (Hons), L.L.B (Soton). |
| Pages | 55-59 |
(2022) Vol. 12
The Relationship Between Separability and Kompetenz-Kompetenz in
Commercial Arbitration
Alicia Algeo*
Abstract:
This essay will critically discuss the doctrines of separability and Kompetenz-Kompetenz. Firstly, the essay will
define the two doctrines and their key a uthorities. Secondly, it will analyse evidence in favour of the doctrines
being completely detached and independent from each other. Finally, the essay will move on to consider
arguments contrary to the statement, that suggests the two principles are not completely independent, but instead
are linked to each another, albeit physically detached. Overall, the evidence suggests the strongest argument is
that the statement is not entirely correct, as the two doctrines are completely detached, as they are two distinct
doctrines, yet they are not completely independent, as nowadays they work together in practice.
he doctrine of separability refers to the substantive agreement being separate and
distinct from the arbitration agreement,1 even if they are in the same document. Thus,
the doctrine dictates that even if the substantive agreement is found to be invalid or
unenforceable, this will not render the arbitration agreement or clause as invalid or
unenforceable. Therefore, its validity can be maintained, unless the substantive dispute
‘directly impeaches’ the arbitration agreement. The common law recognised the doctrine of
separability in Fiona Trust,2 where Lord Hoffmann in the House of Lords stated, ‘the
arbitration agreement must be treated as a ‘distinct agreement’’.3 Lord Hoffmann provides
further clarity on the doctrine, by stating ‘the arbitration agreement can only be void or voidable
on grounds which relate directly to the arbitration agreement’, thus upholding the idea of ‘direct
impeachment’.4
The doctrine of Kompetenz-Kompetenz establishes the arbitral tribunal has the competence to
rule on its own jurisdiction.5 Unless otherwise agreed by the parties, the tribunal can determine
whether there is a valid arbitration agreement, whether the tribunal is properly constituted and
what matters have been submitted to arbitration in accordance with the arbitration agreement.6
This doctrine, similarly to separability, has also been recognised in English common law in
*B.A (Hons), L.L.B (Soton).
1 Arbitration Act 1996, s7.
2 Fiona Trust & Holding Cor p v Pr ivalov [2007] UKHL 40.
3 Fiona Trust & Holding Cor p v Pr ivalov [2007] UKHL 40 [17] (Lord Hoffmann).
4 ibid [17] (Lord Hoffmann).
5 Arbitration Act 1996, s30.
6 ibid s30.
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