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Giovanni Zarra
1. Introduction
The doctrine of separability is a typical feature of domestic arbitration laws and arbitration rules all-around the world and it means that arbitration clauses (and, more in general, dispute resolution clauses)1 shall be considered as separate agreements from the contract within which they are inserted. The rationale of this doctrine is simple: an arbitration agreement is, inter alia, meant to exactly deal with the situations in which one of the parties is affirming that the agreement is invalid and/or ineffective and, should such an invalidity affect also the arbitration agreement, its insertion within the contract would be useless.2 This paper will discuss the possibility that the doctrine of separability applies also to arbitration agreements contained in international treaties, with the effects that (i) such treaty provisions shall be considered as separated from the rest of the Treaty, and, as a consequence, (ii) the termination of the main treaty cannot affect the validity and effectiveness of arbitration agreements. Relatedly, (iii) with specific regard to arbitration agreements set forth within bilateral investment treaties (BITs) and providing for the individuals’ right to start arbitration proceedings against States, it will be argued that they are also covered by separability and not necessarily governed by the same law which regulates the substance of the treaty (at least, as we will see, when the involved form of arbitration is not the one under the auspices of the International Centre for the Settlement of Investment Disputes – ICSID).
