INTERNATIONAL ALTERNATIVE DISPUTE RESOLUTION

High school
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Finance & Accounting
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Introduction Whether an arbitration clause survives the death of the contract, or the invalidity of a contract, is one of evolving law in England. Starting with the early days, arbitration clauses were considered just another contract term, therefore were not deemed to survive the death of a contract, let alone its invalidity…

Introduction

Eventually, through the enaction of the Arbitration Act 1996 and through several cases, the arbitration clause was held to survive even if the underlying contract was void or invalid. The details of the evolution of the arbitration clause, with relation to whether it survives the death or invalidity of the underlying contract, is the topic of this submission. Analysis Historically, courts have approached the issue of the separability of arbitration clauses in different ways. In England, the issue of arbitration clauses being separable was decided in such a way that the arbitration clause became another contract term, in the case of Kill v. Hollister in 1746.1 This decision was in accordance with another decision by France different around this same time that was decidedly anti-arbitration. France’s Napoleonic Code outlawed enforcing arbitration clauses. However, the notion of separability evolved in Europe, so that Germany, in the late 19th Century, decided that the law of the arbitration and the law of the contract could be ruled by separate jurisdictions. This is because Germany decided that arbitration clauses were procedural, therefore would be ruled by the law of the forum. The contract itself, being substantive, would be ruled by a different law. ...
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