1.Start with a brief Introduction in which you summarise what the essay is about; the research question(s) the essay answers; how this research question(s) and the answer(s) fit into the main research question of your essay; and give the outline of your essay.
2.For every assertion you make, you must give references to the source material (the evidence for every statement you make). If you are quoting a commentator, you can state their name and their view in the text.
The more cases you discuss(from material provided) to support an argument the better. If you refer to a case, discuss the sections of the case/judgment (at the very least some relevant facts and the ratio) which are relevant to the point you make.
3. conclude or summarise essay with the answer(s) to the research question(s) identified above
THE RESEARCH QUESTIONS THAT MUST BE ADDRESSED ARE BELOW
research questions to address:
What is the doctrine of separability?relation to severity?
Discuss legislation and case law that brought it into effect.
Discuss What is the purpose of the doctrine of separability?
How and Why is it significant?which legislation and case law led to the need for the doctrine in arbitration?how does it relate to jurisdiction?
Explain why the arbitration agreement is not governed by the proper law
1. What is the scope of the doctrine of separability?highlight the True Scope(1 long paragraph),
2. discuss the broader interpretation and the problems that arise in relation to the truth scope
3. When, what instances is an arbitration agreement challenged? Invalidity of main agreement -jurisdiction challenge made doctrine necessary -validity of the agreement-
4. discusses the nature and significance of the principle of separability in international arbitration.
5. Doctrine of separability in English law and explains how it has been applied by the English courts to disputes relating to the validity of arbitration clauses.
6. Discuss in Length the Purpose and significance of separability, addressing its scope and some interpretations,
7. What is the Effect of separability on validity of the agreement? Discuss in length
8. what are the conflicting existing laws that exist and why did the doctrine conflict with them?conflicts with fragments of other applicable laws
9. Discuss the limitations of the doctrine of seposrsbility. What are they, why are they there? How has the doctrine been misused/misinterpreted
FURTHER GUIDANCE AND MATERIAL TO USE.
show an Understanding of the legal issues relevant to arbitration agreements;
Understand the requirements for a valid and effective arbitration agreement;
Assess the validity and effectiveness of a sample arbitration agreement;
Understand the principles of separability and its limitations;
Be able to determine the proper law of the arbitration;
Understand how an arbitration agreement comes to an end.
Know how to commence an arbitration reference.
Please include 1, 2 and 3 below in essay :
1 New SC decision in Enka v Chubb: https://www.supremecourt.uk/cases/docs/uksc-2020-0091-judgment.pdf 9on the law that governs the arbitration agreement under English law)
2 Premium Nafta v Privalov [2007] UKHL 40 (also known as Fiona Trust) on separability of the arbitration clause. See also: Dreymoor Fertilisers Overseas Pte Ltd v Eurochem Trading GmbH [2018] EWHC 909 (Comm) on board wording of arbitration clause may extend to disputes outside the main contract to include non-contractual claims an allegation of bribery inducing the contract.
3 Schein v Archer and White, 139 S.Ct. 524 (2019): for a USA perspective (and the delegation theory v separability) available at: https://www.leagle.com/decision/insco20190108c78
4 C v D [2007] EWCA Civ 1282 on law of the seat.
5 Dallah v Pakistan [2010] UKSC 46: on parties to the arbitration agreement.
6 Dow Chemical France v Isover Saint Gobain, ICC Case No 4131 of 23 September 1982 on third parties to the arbitration agreement.
7 AES Ust-Kamenogorsk Hydropower Plant LLP v UST-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35: on anti-suit injunctions.
8 Qingdao Huiquan Shipping Co v Shanghai Dong He Xin Industry Group Co Ltd [2018] EWHC 3009 (Comm): a third party that claims under a contract containing an arbitration agreement will be bound by that arbitration agreement. This will extend the arbitration agreement to the third party under English law.
Discussion guidance :
What is the nature of the arbitration agreement?
Who are the parties to this contract? Group of companies doctrine?
What is the purpose of the arbitration agreement?
Arbitration clause v submission agreement
What law applies to the arbitration agreement?
What is seperability or autonomy of the arbitration agreement?
Formal validity of the arbitration agreement
Substantive validity of the arbitration agreement
Effect of a valid arbitration agreement
Scope of the arbitration agreement
CASES TO MENTION:
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