The principle of separability of arbitration clause and its legal scope in the interpretation and modification of contracts

Abstract

The present article discusses the legal scope of the principle of severability of the arbitration clause in the interpretation and modification of contracts. Based on the problem of whether the clauses establishing the rules amending contracts determine the way in which the arbitration clause should be modified, it is assumed that the principles of separability, pro-arbitration, good faith, and autonomy of the will of the parts determine an independence between the rules for modification of the contract established in the special clauses, according to the rules applicable to the modification of the arbitration clause. A dogmatic court has been applied to study the legal norm to determine the meaning, content, and scope of the law in the problem raised. Normative, historical, doctrinal, and existing sources of interpretation are addressed, supported by the systematic historical and logical grammatical method. The comparative method and the inductive method are used. It concludes that arbitration is an instrument of procedural pragmatism and that the principle of separability requires a legal environment that benefits arbitration, guaranteeing respect for the autonomy of the parts, and to give support to the decisions taken by the contractors. At the same time, it is stated that the “extra-limited” scope of the principle of separability of the arbitration clause is possible, thanks to its harmonies link with other principles of the arbitration system, following minimum considerations for its processability.