Published 3 June 2020
The present article will make some reflections on the doctrine of separability in investment arbitration. The doctrine of separability (or severability) is also known as the principle of autonomy, or independence of the arbitration clause from the parties’ underlying contract. Judge Schwebel discussed severability as one of three salient problems in international arbitration.
While the jurisdiction of municipal courts emanates from statutes or a choice of court agreement, arbitral tribunals’ jurisdiction and powers derive primarily from the arbitration agreement. According to the doctrine of separability the arbitration clause contained in a main contract is a separate contract, independent and distinct from the main contract.
Footnotes omitted from this introduction.