Introduction
Typically, arbitration clauses are treated as independent and separate agreements, distinct from the main or underlying contract between the parties. It therefore follows that when a contract which is the subject of an arbitration clause is terminated, the arbitration clause survives the terminated contract. In other words, parties would still be bound by an arbitration clause notwithstanding the termination of the main contract. This is generally known as the Doctrine of Severability, a long-standing principle of law in relation to arbitration clauses.[1]
The doctrine of severability connotes that an arbitration clause is distinguishable, different and independent from the main contract and is therefore treated as a separate agreement that can be independently enforced. This doctrine is recognized in the Arbitration and Mediation Act 2023, particularly under section 14(2) of the Act provides that: “an arbitration clause which forms part of a contract will be treated as an agreement independent of the other terms of the contract and a decision by the arbitral tribunal that the contract is void does not entail ipso jure the invalidity of the arbitration clause.” The doctrine was also well explained in the case of Project Vision Actualizers Ltd v. Ilushin Estates Ltd & Another (2021) LPELR-55629(CA), where the Court held as follows: “Generally, in Agreements that have an arbitration clause, the arbitration clause is regarded as a separate contract, such that even if the Agreement fails, the arbitration clause survives as a separate contract.’’
