Originally from: Arbitration Law of Russia: Practice and Procedure

7.1 SEPARABILITY

Separability is a well-known doctrine that boils down to the question of whether the arbitration clause within a contract may be regarded as an agreement separate from other contractual provisions, i.e., the validity of the arbitration clause is not necessarily affected by invalidity of the main contract. The practical importance of the doctrine of “competencecompetence” is that the parties cannot avoid arbitration by alleging invalidity of the main contract.

From a substantive point of view, the question of separability comes into play when the agreement expires or is repudiated by one or both parties, as well as when it is performed or frustrated. But separability can have other meanings and effects. From the conflict of laws standpoint, for instance, the question is whether the law by which the main contract is governed necessarily governs the arbitration agreement. A further possible meaning is procedural and gives rise to the question of “competence-competence”, namely, whether the arbitrators are entitled themselves to rule on the validity of the arbitration clause, the very basis of their jurisdiction, or must surrender this question to the courts.1

The concept of separability is generally accepted in Russia, with some reservations. Art. 16 of the Arbitration Act provides that the arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract is to be treated as an agreement independent of the other terms of the contract. An award by the arbitral tribunal that the contract is null and void does not entail ipso jure the invalidity of the arbitration clause.