The purpose of this thesis is to determine the scope and consequences of the separability doctrine in English law. It reveals a tension which hitherto has not been explored or understood between the desire to widen the separability doctrine so as to promote commercial arbitration and the need for that doctrine to rest on sound principle and policy. The thesis seeks to convince the reader that: (i) English arbitration law is, and should continue to be, based on a contractual theory of arbitration; (ii) the separability doctrine, as applied in England, is consistent with a contractual theory of arbitration; (iii) the best way for the English doctrine of separability to develop, for reasons of policy and principle, is to recognise two main exceptions to separability, these being for non-existent and for illegal contracts; and (iv) the competence-competence principle can, and should, be utilised in order to mitigate some possible drawbacks of the above-mentioned exceptions to the separability doctrine. In developing the above arguments the thesis tackles issues of great importance that have tended to be overlooked, in particular the relationship between the separability doctrine and general theories of arbitration and the relationship between the separability doctrine and the competence-competence principle.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:249796 |
| Date | January 2002 |
| Creators | Bashayreh, Mohammad H. S. |
| Publisher | University of Oxford |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | https://ora.ox.ac.uk/objects/uuid:f72b2181-6951-4400-b1cc-675a67a97f37 |
Page generated in 0.0015 seconds