Autonomiczny charakter klauzuli arbitrażowej w międzynarodowym arbitrażu handlowym
The Autonomy of Arbitration Clause in International Commercial Arbitration

Summary/Abstract: The Article discusses the principle of autonomy of arbitration clause (separability, severability), which plays an important role in the practice of international commercial arbitration. The principle of autonomy of arbitration agreement allows the arbitration tribunal to retain its jurisdiction, even if the main contract turns out to be invalid or otherwise ineffective. The independence of the arbitration clause remains in correlation with the Kompetenz-Kompetenz principle. Taken together, these principles allow the arbitral tribunal to safeguard its jurisdiction from attacks by the parties opposing arbitration, in case they have previously submitted their disputes to arbitrators. The article provides a comprehensive review of legal solutions and case law from various jurisdictions. These are critically analysed. In particular, an argument is made that for the purposes of the principle of autonomy of arbitration agreement, it is irrelevant whether the main contract is alleged to be invalid or inexistent. The author concludes that the principle of autonomy as such has no inherent limits to it. The only limitation to arbitrators’ competence can be derived from the defectiveness of the arbitration clause itself. Once the tribunal establishes that there exists a valid arbitration agreement, it is permitted to decide whether the main contract exists, even if it is alleged that it has never been concluded.

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