Stretching separability to its yield point

Abstract The 80-year doctrine of separability, considered today to be a ‘part of the very alphabet of arbitration law’, continues to generate debate about the extent of its application. Originating as a doctrine to preserve the jurisdiction of the tribunal to determine disputes where contracts had been terminated or unilaterally declared invalid, the doctrine has been robustly applied under English law to further the cause of arbitration. The doctrine has not only been accepted in other common law jurisdictions but has also been incorporated under arbitral statutes around the world to ward off novel challenges to the commencement of arbitration. However useful the doctrine might be, its elasticity has limits. While English law recognizes that the doctrine is not limitless and Singapore law follows suit, a recent judgment by seven judges of the Indian Supreme Court appears to have pushed the envelope by holding that the doctrine of separability entails ‘the general rule on the substantive independence of an arbitration agreement’ without restrictions. The article undertakes a comprehensive analysis of all three approaches and critically analyses various decisions which have been instrumental in keeping jurisprudence around the doctrine abuzz.