Separability of Arbitration Agreement In Mutual Termination of Contracts In India : A Legislative Guideline

The separability of an arbitration agreement from the underlying contract is a well-established theory in commercial arbitration. This theory has been applied by courts and arbitral tribunal across the globe without any deviance. However, the position becomes complex when the question is regarding the separability of an arbitration agreement when the underlying contract is mutually terminated between the parties. Different jurisdictions across the globe have accepted or rejected this kind of separability either through legislative provisions or judicial decisions. Unfortunately, the position remains rather unclear in India due to conflicting judicial decisions of the Bombay High Court and the lack of any authoritative ruling by the Supreme Court of India. This paper aims to conduct a comparative analysis of various national systems as well as international rules and arbitral institutions regarding this theory and suggest the way forward for India