Doctrine of separability

Abstract

Arbitration is one of the mechanisms to resolve disputes. Parties that want to arbitrate their dispute, must have an arbitration agreement. Arbitration agreement can be a clause and forming part of the main contract or parties may opt to have a separate agreement. The importance of having an arbitration agreement is that it can preserve one party‘s choice of the favourable forum to settle if dispute arises. There were cases where, despite having arbitration agreement, one of the parties continued to bring the dispute straight to court. Doctrine of separability ensures that parties‘ intent to arbitrate notwithstanding a party challenging the validity of the parties‘ contract or the arbitration clause it contains. Hence, the objective of this research is to identitfy the application of the doctrine of separability in Malaysia. Analysis of the various cases is conducted to see how the court tackles such challenge. From the analysis, it is found that the unenforceability of the contract that contains the arbitration clause does not automatically redeem the arbitration clause unenforceable.