Separability and Competence – Competence In International Arbitration: Ex Nihilo Nihil Fit? Or Can Something Indeed Come From Nothing? – Vol. 13 No. 1-4

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Author: Robert H. Smit*

Published: December 2003

Agreement to Arbitrate

Description: The doctrine of separability provides that an arbitration clause is “separable” from the contract containing it and thus may survive a successful challenge to the validity of the contract. The doctrine of competence-competence provides that arbitrators have jurisdiction to decide challenges to the arbitration agreements upon which their own jurisdiction is based. These two doctrines have appropriately been called the conceptual cornerstones of international arbitration as an autonomous and effective form of international dispute resolution.1 The doctrines, taken together, ensure that the parties’ intent to arbitrate any disputes that arise out of their international contractual relationship is effectuated without undue court interference, notwithstanding a party’s challenge to the validity of the parties’ contract or the arbitration clause it contains.

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*Robert H. Smit is a partner at Simpson Thacher & Bartlett LLP. This article is adapted from a paper presented at the Research Conference on International and Domestic Arbitration, and sponsored by the Institute of Judicial Administration, New York University School of Law. Special thanks to Jennifer Barnett, an associate at Simpson Thacher, for her help in preparing the original paper, and to Steven J. Feldstein, a summer associate at Simpson Thacher, for his help in preparing this article.