Separability of Arbitration Agreement in Mutual Termination of Contracts in India: A Legislative Guideline - Journal of International Arbitration View Separability of Arbitration Agreement in Mutual Termination of Contracts in India: A Legislative Guideline by - Journal of International Arbitration Separability of Arbitration Agreement in Mutual Termination of Contracts in India: A Legislative Guideline 36 6
The
separability for an arbitration agreement from the underlying contract is a
well-established theory in commercial arbitration by courts and arbitral
tribunals across the globe. However, the position becomes complex in
circumstances where the underlying contract is mutually terminated between the
parties. Jurisdictions across the globe have adopted a different approach to
this kind of separability either through legislative provisions or judicial
decisions. Unfortunately, the position remains rather unclear in India
due to conflicting judicial decisions of the Bombay High Court and lack of any
authoritative ruling by the Supreme Court of India. This article aims to
conduct a comparative analysis of various national systems as well as
international rules and arbitral institutions regarding this theory and to
suggest the way forward for India.
Journal of International Arbitration