The Principle Of Separability

Fundamental Principles of Arbitration #2: The Principle of Separability

The Principle of Separability: The Independence of the Arbitration Agreement from the Underlying Contract, Its Limits, and Its Application under Turkish Law

ABSTRACT

An arbitration agreement is regarded as legally independent from the underlying contract in which it is contained. The invalidity, termination, or expiry of the underlying contract does not, in itself, render the arbitration agreement ineffective.

Under Turkish law, the principle operates on two levels: Article 412(4) of the Turkish Code of Civil Procedure (“CCP”) and Article 4(4) of the Turkish International Arbitration Act (“IAA”) preclude certain objections, whereas Article 422(1) of the CCP and Article 7(H) of the IAA prescribe the manner in which the arbitral tribunal is to assess the issue.