Table of Contents 1.Separability – Overview of UNCITRAL Model Law, EAA 1996, UNCITRAL and ICC Arbitration Rules Case Study: Fiona Trust & Holding Corporation & Others v Yuri Privalov & Others [2007] EWCA Civ Competance Competance 3. Case Study - Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2010]

Separability  UNCITRAL Model Law Art. 16: [...]an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.  EAA 1996, Sec. 7: "Unless otherwise agreed by the parties, an arbitration agreement which forms or was intended to form part of another agreement (whether or not in writing) shall not be regarded as invalid, non existent or ineffective because that other agreement is invalid, or did not come into existence or has become ineffective, and it shall for that purpose be treated as a distinct agreement.“  UNCITRAL Arbitration Rules 2010, Art. 21; ICC Arbitration Rules, Art. 6.4 The validity of an arbitration clause does not depend on the validity of the contract as a whole.

Separability continued.... Case Study:  Fiona Trust & Holding Corporation & Others v Yuri Privalov & Others [2007] EWCA Civ 20 The judgment in the Fiona Trust v Yuri Privalov case is a further important affirmation that an arbitration clause is a separate contract which survives the termination of the main contract. The Court of Appeal ruled that if a contract is said to be invalid for reasons such as bribery, unless that bribery relates specifically to the arbitration clause, the arbitration clause survives and the validity of the contract as a whole is to be determined by an arbitrator and not by the court.

Competance UNCITRAL Arbitration Rules 2010: Art. 23 (1) The Arbitral Tribunal shall have the power to rule on objections that it has no jurisdiction, including any objections with respect to the existence or validity of the arbitration clause or of the separate arbitration agreement (2) The Arbitral Tribunal shall have the power to determine the existence or the validity of the contract of which an arbitration clause forms a part UNCITRAL Model Law: Article 16 - Competence of arbitral tribunal to rule on its jurisdiction (1)The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

Competance Competance cont. English Arbitration Act 1996: S. 30: Competence of arbitral tribunal to rule on its jurisdiction (1)Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to – (a)whether there is a valid arbitration agreement, (b)whether the tribunal is properly constituted, and (c)what matters have been submitted to arbitration in accordance with the arbitration agreement. (2)Any such ruling may be challenged by any available arbitral process of appeal or review or in accordance with the provisions of this Part. S.31: Objection to substantive jurisdiction of tribunal (1)An objection [...] must be raised at the outset of the proceedings S.32: (1) The court may [...] determine any questions as to substantive jurisdiction of the tribunal

Case Study  Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2010] - Important issues to consider: o Misinterpretation of the doctrine of Competance Competance o Tribunal's decision is subject to scrutiny by the courts of the seat of the arbitration as well as those of the place of enforcement o Parties should be mindful that their choice of seat has wider ramifications than merely the supervisory powers of the courts, as the law of the seat will determine whether third parties which have not signed the arbitration agreement are in fact party to it

References UNCITRAL Model Law UNCITRAL Arbitration Rules 2010 ICC Arbitration Rules EAA 1996 Fiona Trust & Holding Corporation & Others v Yuri Privalov & Others [2007] EWCA Civ 20 Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46