5. Separability doctrine
Hong Kong law recognizes the doctrine of separability, which treats an arbitration clause as an independent agreement distinct from the other terms of the substantive contract. This principle, enshrined in section 34 of the Arbitration Ordinance (Cap. 609), ensures that the validity or existence of the arbitration agreement is not automatically affected if the main contract is found to be invalid or terminated.
Because the clause is a separate obligation, an arbitral tribunal retains the jurisdiction to rule on the validity of the underlying contract and any claims arising from it, even if the contract was void from the start. This doctrine is closely allied with the principle of competence-competence, which empowers the arbitral tribunal to rule on its own jurisdiction.
The separability doctrine ensures that an arbitration clause survives the termination, expiration, or rescission of the main contract. Even if a contract is repudiated and that repudiation is accepted, the arbitration clause remains in effect to resolve disputes arising from the relationship, including claims for damages.
To terminate the arbitration agreement itself, the parties must generally reach a separate express agreement to that effect, independent of the termination of the main contract.
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