Separability Of Arbitration Agreement
The applicants invoked the public policy rule in Foster/Driscoll6, which states that a contract is not applicable under English law if the common intention of the parties is to make illegal evidence in a foreign country under that country`s law. The applicants argued that the arbitration agreements, which are part of the entire transaction to secure and conceal illegal safeguards, were tainted by this illegality and should also be considered unenforceable, given that several ancillary contracts were concluded in Foster/Driscoll. Moreover, the search for a tacit choice of ordinary law governing the arbitration agreement should lead to the conclusion that the parties intended the arbitration agreement to be subject to the same legal regime as the material contract, unless there were other factors suggesting another conclusion. In some legal systems, this cannot matter: arbitrators can apply the principle of “validation” to ensure the dissociability of an arbitration agreement. This principle encourages arbitrators to apply a dispute law that makes separation and conciliation agreement between the parties effective.3) Born, Gary. International Commercial Arbitration: Comments and materials. Second edition. Kluwer Law International. 2001, on page 112. See also: Born, Gary. International Arbitration: law and practice. Kluwer Law International. 2012, on page 56; Article 178, paragraph 2, swiss international law; Santiago de Compostela Resolution of the Institute of International Law, Article 4, 4 CISID Rev.
139, 141 (1989); Price in ICC Case 7920 of 1993, XXIII Y.B. Comm. Arb. 80 (1998). A number of legal systems adopt the principle, including Switzerland, Spain and Algeria, as well as the Institute of International Law.4) Born, Gary. International trade arbitration. Second edition. Kluwer Law International, nr.
4.04[A] and 19.04[D], See also, for example, Hamlyn-Co vs. Talisker Distillery  AC 202, 215 (House of Lords): “[t]it is more reasonable to say, that the parties, with the common intention of fully implementing each clause, instead of mutilating or destroying one of the most important provisions [-] of the compromise clause becomes a mere old paper if one considers that the parties have entered into contracts on the basis of the application of Scottish law. ” see also judgment of 26 August 2008, XXXIV Y.B. 404, 405 (Austrian Supreme Court) (2009); Price in icc Case No. 11869, XXXVI Y.B. Comm. Arb. 47, 57 (2011); and collection of the ICC Arbitration Awards 1991-1995 75, 84 (1997). The “doctrine of dissociability” treats a conciliation agreement in a contract as an independent agreement, considered separable from the main contract. Third, the author`s opinion is also supported by the fact that the arbitration agreement is not always different from that of the main agreement for all the purposes that were decided in Ronly Holdings.
The main agreement stipulated that no amendment would take effect “any clause of this agreement” unless it was reduced to the letter. It was suggested that the parties could amend the arbitration agreement orally, as it is a “distinctive agreement” and the “no amendment” clause applies to them. In its pro-arbitration conclusion, the court strengthened the strength of the “powerful commercial factors” that weigh for the maintenance of an agreement. Analysis of doctrine in relation to the determination of the final right of arbitration The judgment, however, leaves unanswered the question of the legal basis for the presumption of separability that the NIOC intended to exploit.