The doctrine of separability in respect of the arbitration clause of a contract : a comparative study of English law and South African law

Abstract

Most jurisdictions have over the past two decades experienced reforms with regard to arbitration law. These include England, America, France, Germany and the Netherlands. These reforms were necessary as the trend in the modern era shows that businessmen situated in different countries usually prefer to have their disputes resolved by arbitration as opposed to court litigation. To have disputes resolved effectively, it is surely a desirable thing to have laws that would promote the use of arbitration as an alternative dispute resolution. This would also ensure progressive international trade which is an important aspect of development in the South African constitutional state. One aspect of the law that would ensure a speedy and effective resolution of dispute by means of arbitration is the incorporation of the doctrine of separability in a country's law. The doctrine of separability provides that an arbitration agreement is a separate and independent contract from the main contract in which it is incorporated. In light of the above, the primary purpose of this study is to compare and analyse the English legal system with that of South Africa with specific focus on the doctrine of separability.