Putting the Principle of Severability in the Dock: An Analysis in the Context of Choice of Law for Arbitration and Jurisdiction Agreements

Abstract

This essay proposes a principled approach to determining the governing law of arbitration agreements and jurisdiction agreements. Acknowledging the usefulness of the principle of severability in the sphere of substantive law, the author opposes the extension of the principle to the sphere of choice of law analysis to treat such agreements as a distinct contract severed from the matrix contract. The author, however, accepts that such agreements are, like any other terms in the same matrix contract, subject to the choice of law technique for splitting up terms within a single contract known as dépeçage, while suggesting that the possibility of involuntary dépeçage should be circumscribed. It is noted that splitting up terms within a contract by means of dépeçage is not the same as treating a term as a distinct contract in terms of choice of law methodology. This essay also examines English cases and seeks to reconcile the proposed approach with the text of existing instruments.