Separability Doctrine in Arbitration Agreement (A Comparative Study) Winner Sitorus
Faculty of Law, Hasanuddin University
Abstract
This paper discusses the status of the separability doctrine in arbitration based on Indonesian arbitration law and the provisions of arbitration law internationally. The legal issues discussed are what constitutes the justification so that the arbitration agreement does not become canceled even though the main agreement is canceled- whether the arbitration agreement is an integral part of the main agreement- and whether the arbitration agreement is not canceled even though the main agreement is canceled based on the separability principle, this applies to all principal agreements. This paper is based on normative legal research. To analyze and answer the legal issues above, the author uses a statutory approach, a case approach, and a conceptual approach. This study concludes that the application of the separability doctrine has a fairly strong justification, namely the parties^ intention to resolve disputes arising from the main agreement through arbitration, including disputes regarding the validity of the main agreement. The separability doctrine applies only if the main agreement in question is nullified or canceled, and does not apply if it concerns the invalidity of the arbitration agreement itself, which is the court^s authority to determine. Recognition of the application of the separability doctrine in legal practice in Indonesia still requires more recognition through court decisions, especially at the Judex Factie level.
