Originally from Alternatives to the High Cost of Litigation

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The ghost of separability continues to haunt English law.

Since 1992, England has accepted the two key tenets of the subject: 1) an arbitration clause can be governed by a different law to the main contract, and 2) the invalidity of the main contract does not entail the unenforceability of the arbitration clause contained in it.

The separability problem may have been “resolved” about three decades ago. Now, though, the subject appears to be following “competence-competence” in moving from “Do you have it?” to “How much of it do you have?”

How focused is the legal system on keeping the main contract out of the analysis of the applicable law and validity questions central to the subject? The answers to these questions can affect results as two cases decided in the past year illustrate.