Arbitral Clauses and the Blue Pencil: Doctrine of Separability

  • Nandhaa Kishore Sashikanth
  • Show Author Details
  • Nandhaa Kishore Sashikanth

    Student at SASTRA (Deemed) University, India

  • img Download Full Paper


The concept of ‘Expedient justice’ is almost interchangeably perceived with the term ‘Alternative Dispute Resolution’ in India, for the state of affairs of the third, and most often regarded as the one and only independent Organ, the Indian Judiciary, has not been up to the mark in terms of expedient justice, calling for alternative methods to perform the same. Arbitration is one such method whereby disputes of commercial or corporate nature, an inexhaustive list, are disposed of through discretion of the parties thereto. The general principle followed in India is one of the exclusion of criminal matters or any other matters that even meekly attract any form of criminal liability or penalty, although the Arbitration and Conciliation Act, 1996 does not specifically exclude any class of matters from the scope of arbitrability. The Arbitration and Conciliation Act (“the Act”, for brevity) is the procedural consolidation governing the rules of arbitration proceedings in India, being analogous to the Codes of Civil and Criminal Procedure to civil suits and criminal proceedings respectively. However, there are several decisions holding that judicial intervention may be allowed by the unambiguous, explicit language of an arbitral clause to that effect, and to that extent as contained therein. For instance, a conjoint reading of section 34 and section 48 of the Act reveals that an award arrived at may be set aside if the Court finds that the “subject matter of the dispute is not capable of settlement by arbitration under the law for the time being in force”. Based on the above premise, this article seeks to explore the ratio behind the exceptional endurance of the arbitral clause in a contract beyond the life of the contract itself, and those cases in which the basics of law of contract regarding intention of parties would apply. Further spotlight is on the scope and recognition of arbitration clauses by Courts of other countries, and the position in India, and iterates the non-absolute nature of the law of contract thus putting forth the perspective that the completion or voidability of a contract with an arbitration clause inherent to it shall neither render the clause expedient nor diminish the arbitrability of the dispute in itself.




International Journal of Law Management and Humanities, Volume 6, Issue 4, Page 775 - 782


Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution -NonCommercial 4.0 International (CC BY-NC 4.0) (, which permits remixing, adapting, and building upon the work for non-commercial use, provided the original work is properly cited.


Copyright © IJLMH 2021