Most arbitrations arise from arbitration agreements contained in arbitration clauses that are part of a larger contract whether it be a contract for the supply of goods or services, a partnership agreement, a shareholder agreement or the like.

In modern times it is a generally accepted principle of most legal systems that the arbitration clause stands as a separate agreement. This means that if the larger contract is void for whatever reason, the arbitration clause is unaffected and indeed may be seen as covering the dispute over voidness of the larger contract.

In Scotland this principle is enshrined in section 5 of the 2010 Act. But that’s not the case in all countries. In South Africa the issue of severability was considered in Seabeach Property Investment v. Nunn [2019] ZAWCHC 9 where the larger contract was one for the sale of heritable (immoveable) property.

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