{"componentChunkName":"component---src-templates-blog-post-js","path":"/news-insight/2026-08-27-the-principle-of-separability/","result":{"data":{"page":{"frontmatter":{"lang":"en","title":"The Principle of Separability","description":"The Principle of Separability","templateKey":"blog-post","tags":["Dispute Resolution"],"type":"Insight","date":"August 27, 2026","featuredimage":{"childImageSharp":{"fluid":{"base64":"data:image/png;base64,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","aspectRatio":1.7777777777777777,"src":"/static/34752d37fde49eeed7b265fa2505725a/8ba8a/2axz.png","srcSet":"/static/34752d37fde49eeed7b265fa2505725a/1636f/2axz.png 240w,\n/static/34752d37fde49eeed7b265fa2505725a/06beb/2axz.png 480w,\n/static/34752d37fde49eeed7b265fa2505725a/8ba8a/2axz.png 768w","srcWebp":"/static/34752d37fde49eeed7b265fa2505725a/921f9/2axz.webp","srcSetWebp":"/static/34752d37fde49eeed7b265fa2505725a/97b9d/2axz.webp 240w,\n/static/34752d37fde49eeed7b265fa2505725a/824d7/2axz.webp 480w,\n/static/34752d37fde49eeed7b265fa2505725a/921f9/2axz.webp 768w","sizes":"(max-width: 768px) 100vw, 768px"}}}},"body":"var _excluded = [\"components\"];\n\nfunction _extends() { _extends = Object.assign || function (target) { for (var i = 1; i < arguments.length; i++) { var source = arguments[i]; for (var key in source) { if (Object.prototype.hasOwnProperty.call(source, key)) { target[key] = source[key]; } } } return target; }; return _extends.apply(this, arguments); }\n\nfunction _objectWithoutProperties(source, excluded) { if (source == null) return {}; var target = _objectWithoutPropertiesLoose(source, excluded); var key, i; if (Object.getOwnPropertySymbols) { var sourceSymbolKeys = Object.getOwnPropertySymbols(source); for (i = 0; i < sourceSymbolKeys.length; i++) { key = sourceSymbolKeys[i]; if (excluded.indexOf(key) >= 0) continue; if (!Object.prototype.propertyIsEnumerable.call(source, key)) continue; target[key] = source[key]; } } return target; }\n\nfunction _objectWithoutPropertiesLoose(source, excluded) { if (source == null) return {}; var target = {}; var sourceKeys = Object.keys(source); var key, i; for (i = 0; i < sourceKeys.length; i++) { key = sourceKeys[i]; if (excluded.indexOf(key) >= 0) continue; target[key] = source[key]; } return target; }\n\n/* @jsxRuntime classic */\n\n/* @jsx mdx */\nvar _frontmatter = {\n  \"lang\": \"en\",\n  \"templateKey\": \"blog-post\",\n  \"type\": \"Insight\",\n  \"tags\": [\"Dispute Resolution\"],\n  \"title\": \"The Principle of Separability\",\n  \"date\": \"2026-08-27T14:10:00.328Z\",\n  \"description\": \"The Principle of Separability\",\n  \"featuredpost\": true,\n  \"featuredimage\": \"/img/2axz.png\"\n};\nvar layoutProps = {\n  _frontmatter: _frontmatter\n};\nvar MDXLayout = \"wrapper\";\nreturn function MDXContent(_ref) {\n  var components = _ref.components,\n      props = _objectWithoutProperties(_ref, _excluded);\n\n  return mdx(MDXLayout, _extends({}, layoutProps, props, {\n    components: components,\n    mdxType: \"MDXLayout\"\n  }), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"Fundamental Principles of Arbitration #2: The Principle of Separability\")), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"The Principle of Separability: The Independence of the Arbitration Agreement from the Underlying Contract, Its Limits, and Its Application under Turkish Law\")), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"ABSTRACT\")), mdx(\"p\", null, \"An arbitration agreement is regarded as legally independent from the underlying contract in which it is contained. The invalidity, termination, or expiry of the underlying contract does not, in itself, render the arbitration agreement ineffective.\"), mdx(\"p\", null, \"Under Turkish law, the principle operates on two levels: Article 412(4) of the Turkish Code of Civil Procedure (\\u201CCCP\\u201D) and Article 4(4) of the Turkish International Arbitration Act (\\u201CIAA\\u201D) preclude certain objections, whereas Article 422(1) of the CCP and Article 7(H) of the IAA prescribe the manner in which the arbitral tribunal is to assess the issue.\"), mdx(\"p\", null, \"The principle does not afford absolute protection. Where the alleged defect is directed specifically at the arbitration agreement itself\\u2014such as the absence of specific authority to agree to arbitration, a forged signature, or the complete absence of consent to arbitrate\\u2014the arbitration agreement may independently be found invalid.\"), mdx(\"p\", null, \"One of the most significant practical consequences of the principle is that the arbitration agreement may be governed by a law different from that governing the underlying contract. In English law, the new Section 6A introduced by the Arbitration Act 2025, which entered into force on 1 August 2025, has fundamentally altered the position in this respect.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"1. INTRODUCTION\")), mdx(\"p\", null, \"In the first article of this series, we examined the principle of Competence-Competence, which refers to the power of an arbitral tribunal to rule on its own jurisdiction. This article addresses the second structural principle which, together with Competence-Competence, constitutes one of the pillars of modern arbitration law: the principle of separability.\"), mdx(\"p\", null, \"Does the fate of an arbitration agreement depend on the fate of the underlying contract in which it is contained? At first glance, the answer may appear to be yes. In practice, an arbitration clause is often drafted as one of the provisions of the underlying contract between the parties. It might therefore be assumed that, where the underlying contract is invalid, terminated, rescinded, or alleged never to have come into existence, the arbitration clause must share the same legal fate.\"), mdx(\"p\", null, \"Modern arbitration law, however, does not accept this assumption. The prevailing approach in national arbitration legislation, international arbitration rules, and international arbitral practice is that an arbitration agreement must be treated as legally independent from the underlying contract. Pursuant to the principle of \\u201Cseparability\\u201D or \\u201Cseverability\\u201D, the existence and validity of the arbitration agreement do not, as a rule, depend on the validity of the underlying contract in which it is contained.\"), mdx(\"p\", null, \"In civil law jurisdictions, the principle is generally expressed in terms of the autonomy of the arbitration agreement (autonomie de la convention d\\u2019arbitrage), while Turkish law refers to the principle as the \\u201Cseparability,\\u201D \\u201Cindependence,\\u201D or \\u201Cautonomy\\u201D of the arbitration agreement.\"), mdx(\"p\", null, \"Separability, however, is not a theoretical construct that completely detaches the arbitration agreement from the underlying contract. Rather, it is a functional rule designed to safeguard the effectiveness of arbitral proceedings, protect party autonomy, and prevent premature and unnecessary intervention by national courts.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"2. The Meaning of the Principle of Separability\")), mdx(\"p\", null, \"In its broadest sense, the principle of separability means that the arbitration agreement is treated as a legally independent transaction from the underlying contract. Accordingly, the formal and substantive validity of the arbitration agreement is assessed independently from the validity of the underlying contract in which it is contained. The fact that the parties have incorporated the arbitration clause into the underlying contract does not make the legal existence of the arbitration agreement dependent on that contract.\"), mdx(\"p\", null, \"The essence of the principle lies in the recognition that, although the parties may appear to have signed a single instrument, the law treats that instrument as containing two distinct agreements. The first is the underlying contract governing the parties\\u2019 substantive legal relationship; the second is the arbitration agreement, procedural in nature, which determines the mechanism by which disputes arising out of that relationship are to be resolved. Since the purpose, function, and legal nature of these two agreements differ, they cannot necessarily be expected to share the same legal fate in every circumstance.\"), mdx(\"p\", null, \"One of the best-known explanations of this approach was advanced by Stephen M. Schwebel, former President of the International Court of Justice. According to Schwebel, when parties enter into a contract containing an arbitration clause, they in fact conclude not one but two separate agreements. In his terminology, the arbitration agreement is the \\u201Carbitral twin\\u201D of the underlying contract and may continue to exist notwithstanding defects affecting the underlying contract at its inception or disabilities affecting it thereafter (Stephen M. Schwebel, International Arbitration: Three Salient Problems, \\u201CThe Severability of the Arbitration Agreement\\u201D, Cambridge, Grotius, 1987, p. 5).\"), mdx(\"p\", null, \"The principle of separability should not, however, be understood to mean that the arbitration agreement has no connection whatsoever with the underlying contract. The arbitration agreement plainly serves to resolve disputes arising out of the underlying contract and is closely connected with it. That relationship does not mean, however, that every challenge directed at the underlying contract automatically affects the arbitration agreement as well. In this respect, separability does not confer absolute independence on the arbitration agreement; rather, it establishes a presumption against automatically tying the legal fate of the arbitration agreement to that of the underlying contract.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"3. Why Is the Principle of Separability Necessary?\")), mdx(\"p\", null, \"Separability is not merely a theoretical rule of law; it is a principle developed in response to a concrete problem encountered in international commercial arbitration.\"), mdx(\"p\", null, \"In the earlier development of arbitration law, the prevailing view was that an arbitration clause formed an inseparable part of the underlying contract. Under that approach, every challenge to the validity of the underlying contract also placed the validity of the arbitration clause in question. Consequently, a party that had initially agreed to resolve disputes by arbitration could later obstruct the arbitral process simply by alleging that the underlying contract was invalid. In such circumstances, the arbitral tribunal could not proceed with the dispute, and the parties were required first to apply to the national courts for a determination that the arbitration agreement was valid.\"), mdx(\"p\", null, \"This approach resulted in significant delays and materially increased dispute resolution costs. More importantly, it substantially undermined one of arbitration\\u2019s principal advantages: the prompt and effective resolution of disputes. The arbitration agreement could, in practice, be rendered ineffective merely by raising an objection to the validity of the underlying contract.\"), mdx(\"p\", null, \"The principle of separability developed precisely to address this problem. By preventing allegations concerning the invalidity, ineffectiveness, or termination of the underlying contract from automatically extinguishing the arbitration agreement, the principle safeguards the continuity and integrity of the arbitral process.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"4. Consequences of the Principle of Separability\")), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"4.1. Challenges to the underlying contract do not automatically affect the arbitration agreement\")), mdx(\"p\", null, \"An allegation that the contract is invalid on grounds such as fraud, mistake, duress, gross disparity (laesio enormis), illegality, or impossibility does not, as a rule, invalidate the arbitration clause. Likewise, the termination, expiry, performance, or discharge of the underlying contract does not automatically render the arbitration agreement ineffective.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"4.2. Disputes concerning the existence and validity of the underlying contract fall within the scope of arbitration\")), mdx(\"p\", null, \"As a natural consequence, the arbitral tribunal may determine disputes concerning whether the underlying contract was formed, whether it is valid, or on what basis it was terminated. A determination by the arbitral tribunal that the underlying contract is invalid does not retroactively deprive the tribunal of its jurisdiction.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"4.3. The principle operates in both directions\")), mdx(\"p\", null, \"An aspect often overlooked in practice is that separability is not a one-way principle. The Turkish Court of Cassation, 11th Civil Chamber, has expressly recognised this point: just as the invalidity of the underlying contract does not affect the validity of the arbitration agreement, the converse is also true\\u2014the invalidity of the arbitration agreement for any reason does not affect or invalidate the underlying contract (Court of Cassation, 11th Civil Chamber, 23 March 2010, E. 2008/5901, K. 2010/3203).\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"4.4. A different law may govern the arbitration agreement\")), mdx(\"p\", null, \"One of the most significant practical consequences of separability is that the law governing the arbitration agreement may differ from the law governing the underlying contract. The important point is that the principle does not require, or even presume as a matter of course, that two different laws will apply. It merely makes that result possible. The applicable law must be determined by reference to the relevant conflict-of-laws rule.\"), mdx(\"p\", null, \"Under Turkish law, the relevant conflict-of-laws rule is set out in Article 4(3) of the IAA: \\u201CThe arbitration agreement shall be valid if it complies with the law chosen by the parties to govern the arbitration agreement or, in the absence of such choice, with Turkish law.\\u201D The legislature thus expressly permits the parties to make a separate choice of law for the arbitration agreement and, in the absence of such choice, refers directly to Turkish law.\"), mdx(\"p\", null, \"The same logic is reflected at the international level in Article V(1)(a) of the 1958 New York Convention. That provision assesses the validity of the arbitration agreement under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made. Although the Convention does not expressly codify the principle of separability, its provision of a distinct conflict-of-laws rule for arbitration agreements is one of the clearest indications of the principle\\u2019s implicit recognition.\"), mdx(\"p\", null, \"The most recent and far-reaching development in this field has occurred in English law. The Arbitration Act 2025, which entered into force on 1 August 2025, introduced a new Section 6A into the Arbitration Act 1996. Under this provision, an arbitration agreement is governed by the law expressly agreed by the parties or, in the absence of such an express agreement, by the law of the seat of arbitration. The provision further states that a choice of law made in respect of the underlying contract does not, by itself, constitute an express choice of law for the arbitration agreement. This legislative reform reverses the approach adopted by the UK Supreme Court in Enka \\u0130n\\u015Faat ve Sanayi A\\u015E v OOO Insurance Company Chubb (\", \"[\", \"2020] UKSC 38), under which the choice of law governing the underlying contract could also operate as an implied choice of law for the arbitration agreement.\"), mdx(\"p\", null, \"For Turkish parties, the practical significance of this development is considerable. Where London is chosen as the seat of arbitration, while Turkish law is selected as the governing law of the underlying contract, the validity of the arbitration agreement will now, as a rule, be assessed under English law.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"4.5. The continuity of arbitral proceedings is preserved\")), mdx(\"p\", null, \"A party\\u2019s allegation that the underlying contract is invalid no longer generally requires the arbitral proceedings to be interrupted or the dispute to be determined first by a national court.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"5. Limits of the Principle of Separability\")), mdx(\"p\", null, \"Separability does not confer absolute or untouchable validity on an arbitration agreement. The principle merely provides that grounds of invalidity or termination directed at the underlying contract do not automatically extend to the arbitration agreement. Defects relating to the formation or validity of the arbitration agreement itself may always be raised independently.\"), mdx(\"p\", null, \"Accordingly, an arbitration agreement may independently be found invalid where there is a defect in consent, incapacity, lack of authority, forgery of a signature, or no expression of consent to arbitrate at all. The decisive question is whether the alleged defect is directed specifically at the arbitration agreement.\"), mdx(\"p\", null, \"A particularly important distinction must be drawn in this context. An allegation that the underlying contract was never formed represents one of the most debated limits of separability, and there is no single answer applicable in all cases. Where the allegation concerns the substance of the underlying contract\\u2014such as fraud, illegality, or gross disparity\\u2014the separability principle applies and the arbitration agreement ordinarily survives. By contrast, where the allegation is that there was never any consent at all\\u2014such as a forged signature, a wholly non-existent agreement, or representation by a person entirely lacking authority\\u2014the same defect may directly affect the arbitration clause itself, in which case separability affords no protection.\"), mdx(\"p\", null, \"Comparative law supports this distinction. In English law, Lord Hoffmann expressly recognised in Fiona Trust \\xA0that where a signature is forged, the arbitration clause will not survive either. In the United States, the Supreme Court in \\u201CBuckeye\\u201D deliberately left outside the scope of its ruling the question whether the underlying contract was ever formed, while in Granite Rock Co. v. Teamsters (561 U.S. 287 (2010)), the Court confirmed the distinction between objections concerning \\u201Cformation\\u201D and those concerning \\u201Cvalidity\\u201D, holding that formation disputes may be determined by the courts. Likewise, in \\u201CDallah Real Estate v Pakistan\\u201D\", \"[\", \"2010] UKSC 46), the UK Supreme Court accepted that where a party contends that it was never bound by the arbitration agreement at all, the court is entitled to undertake a full review of that issue.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"6. Separability and Competence-Competence: Complementary but Distinct Principles\")), mdx(\"p\", null, \"The two principles are frequently discussed together in practice and are sometimes even used interchangeably. Yet they answer different questions. Separability answers the question \\u201Cwhat remains valid?\\u201D and ensures that the arbitration agreement does not automatically share the fate of the underlying contract. Under Turkish law, its statutory bases are Articles 412(4) and 422(1) of the CCP and Articles 4(4) and 7(H) of the IAA. Competence-Competence, by contrast, answers the question \\u201Cwho decides?\\u201D and allows the arbitral tribunal to determine the matter in the first instance; its statutory bases are Article 422(1) of the CCP and Article 7(H) of the IAA.\"), mdx(\"p\", null, \"The relationship between the two principles is rooted in practical logic. It would not be inaccurate to say that, without separability, the principle of Competence-Competence would be substantially deprived of its effectiveness. If that were not the case, an arbitral tribunal that found the underlying contract invalid would simultaneously destroy the very basis of its own jurisdiction. The final sentence of Article 422(1) of the CCP and the corresponding provision of Article 7(H) of the IAA are designed precisely to break this circularity.\"), mdx(\"p\", null, \"Indeed, in its judgment dated 19 June 2020, E. 2019/4, K. 2020/1, the \\u201CCourt of Cassation General Assembly on the Unification of Judgments\\u201D considered the two principles in conjunction. It emphasised that, by virtue of the separability and independence of the arbitration clause, an arbitrator is empowered to rule on his or her own jurisdiction, and that the purpose of this framework is to promote the speed of arbitration and prevent arbitration from being frustrated merely by invoking the alleged invalidity of the arbitration clause.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"7. Development of the Principle in International Arbitration Law\")), mdx(\"p\", null, \"Separability is now one of the most firmly established principles of international arbitration law. Its current status, however, is the product of judicial and doctrinal developments extending throughout the second half of the twentieth century.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"7.1. International instruments\")), mdx(\"p\", null, \"Article 16(1) of the UNCITRAL Model Law expressly provides that an arbitration clause forming part of a contract shall be treated as an agreement independent of the other terms of the contract, and that a decision by the arbitral tribunal that the underlying contract is null and void shall not ipso jure entail the invalidity of the arbitration clause. The provisions of Turkish legislation on the matter were directly inspired by this rule.\"), mdx(\"p\", null, \"Although the 1958 New York Convention does not expressly codify the principle, Article V(1)(a), discussed above, provides a distinct conflict-of-laws rule for arbitration agreements and thereby establishes a legal framework conducive to the application of separability.\"), mdx(\"p\", null, \"As regards institutional arbitration rules, Article 6(9) of the ICC Arbitration Rules, Article 23.2 of the LCIA Arbitration Rules, and Article 23(1) of the UNCITRAL Arbitration Rules expressly recognise the principle. The provision concerning the arbitral tribunal\\u2019s jurisdiction in the Istanbul Arbitration Centre (\\u201CISTAC\\u201D) Arbitration Rules follows the same approach.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"7.2. English law\")), mdx(\"p\", null, \"In English law, the principle of separability developed over many years through judicial decisions, was extended to allegations of illegality in Harbour Assurance v Kansa General International Insurance (\", \"[\", \"1993] QB 701), and was ultimately codified in Section 7 of the Arbitration Act 1996.\"), mdx(\"p\", null, \"One of the most significant expressions of this approach is \\u201CFiona Trust & Holding Corporation v Privalov\\u201D (\", \"[\", \"2007] UKHL 40, also referred to as Premium Nafta Products Ltd v Fili Shipping Co Ltd). In that dispute, one party argued that the underlying contract was invalid because it had been procured through bribery and corruption and that the arbitration clause should therefore also be treated as invalid. The House of Lords rejected this argument and emphasised that grounds of invalidity directed at the underlying contract do not affect the arbitration clause unless they are directed specifically at the arbitration agreement itself. The Court further observed that, in the ordinary course of commercial dealings, parties can be expected to intend that their disputes be resolved in a single forum and that arbitration agreements should therefore not be interpreted narrowly.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"7.3. United States law\")), mdx(\"p\", null, \"The U.S. Supreme Court\\u2019s decision in Prima Paint Corp. v. Flood & Conklin Manufacturing Co. (388 U.S. 395 (1967)) constitutes a landmark in this area. The Court held that an allegation that the underlying contract was invalid on the ground of fraud did not, by itself, invalidate the arbitration agreement and that, unless the challenge was directed specifically at the arbitration agreement, objections concerning the contract as a whole were for the arbitrators to determine.\"), mdx(\"p\", null, \"This approach was reinforced in \\u201CBuckeye Check Cashing, Inc. v. Cardegna\\u201D (546 U.S. 440 (2006)), where the Court expressly held that even an allegation that the underlying contract was wholly void did not automatically invalidate the arbitration agreement. As noted above, however, the question whether a contract had ever been formed was left outside the scope of that decision, and this issue was subsequently addressed in \\u201CGranite Rock\\u201D.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"7.4. French law\")), mdx(\"p\", null, \"French law has played a pioneering role in the development of the principle. Under the approach developed in \\u201CEts Raymond Gosset c. Carapelli\\u201D (Cass. civ. 1re, 7 May 1963), an international arbitration agreement is, as a rule, unaffected by the invalidity of the underlying contract. The principle is now expressly codified in Article 1447 of the French Code of Civil Procedure (Code de proc\\xE9dure civile), which provides that an arbitration agreement is independent from the contract to which it relates and is not affected by the ineffectiveness of that contract.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"7.5. Swiss law\")), mdx(\"p\", null, \"In Swiss law, the principle is codified in Article 178(3) of the Swiss Federal Act on Private International Law (\\u201CPILA\\u201D / \\u201CIPRG\\u201D / \\u201CLDIP\\u201D). Under this provision, the validity of an arbitration agreement may not be challenged on the sole ground that the underlying contract is invalid. Swiss law likewise recognises that the principle is not absolute and that an arbitration agreement may independently be invalid where the defect in question directly affects the arbitration agreement itself.\"), mdx(\"p\", null, \"These developments demonstrate that, notwithstanding differences in terminology and legal reasoning, the various legal systems ultimately arrive at the same conclusion: the legal fate of the underlying contract does not, as a rule, determine the legal fate of the arbitration agreement.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"8. The Principle of Separability under Turkish Law and the Case Law of the Court of Cassation\")), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"8.1. Statutory framework: a two-tier structure\")), mdx(\"p\", null, \"Under Turkish law, the principle of separability is regulated on two distinct levels\\u2014one substantive and one procedural. Understanding this distinction is essential to appreciating how the principle operates.\"), mdx(\"p\", null, \"The first level consists of a prohibition on a particular objection. Article 412(4) of the CCP provides as follows: \\u201CAn objection may not be raised against the arbitration agreement on the ground that the underlying contract is invalid or that the arbitration agreement relates to a dispute that has not yet arisen.\\u201D Article 4(4) of the IAA contains a provision to the same effect. These rules prevent a party from challenging the arbitration agreement merely by relying on the alleged invalidity of the underlying contract.\"), mdx(\"p\", null, \"The second level concerns the method by which the arbitral tribunal is to assess the matter. Article 422(1) of the CCP provides:\"), mdx(\"p\", null, \"\\u201CAn arbitrator or arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause forming part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitrator or arbitral tribunal that the underlying contract is invalid shall not automatically entail the invalidity of the arbitration agreement.\\u201D\"), mdx(\"p\", null, \"Article 7(H) of the IAA contains a parallel provision for international arbitration.\"), mdx(\"p\", null, \"In addition, Article 4(3) of the IAA, as discussed under Section 4.4 above, completes the conflict-of-laws dimension of the principle by providing a distinct rule for determining the validity of the arbitration agreement.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"8.2. Case law of the Court of Cassation\")), mdx(\"p\", null, \"Court of Cassation, 19th Civil Chamber, 15 November 1995, E. 1995/9108, K. 1995/9685. The Court expressly held that an arbitration clause is an independent agreement governing the resolution of disputes arising out of or relating to the underlying contract and that its formal and substantive validity must be assessed separately from the validity of the underlying contract. Accordingly, the termination, expiry, or suspension of the underlying contract does not, by itself, terminate the arbitration clause.\"), mdx(\"p\", null, \"The date of this judgment is particularly noteworthy. It was rendered during the period in which the former Code of Civil Procedure was in force, before Turkish law contained any express statutory provision on separability. The Court of Cassation thus recognised the principle through case law six years before the enactment of the International Arbitration Act and sixteen years before the adoption of the current Code of Civil Procedure.\"), mdx(\"p\", null, \"The judgments of the Court of Cassation, 11th Civil Chamber, 23 March 2010, E. 2008/5901, K. 2010/3203, and the Court of Cassation General Assembly of Civil Chambers, 22 February 2012, E. 2011/11-742, K. 2012/82, concern different stages of the same dispute. In proceedings for demurrage arising out of a contract of carriage, the first-instance court upheld the arbitration objection and dismissed the action for lack of jurisdiction. The 11th Civil Chamber reversed that judgment, the first-instance court resisted the reversal, and the General Assembly of Civil Chambers ultimately endorsed the Chamber\\u2019s reasoning and set aside the resistance judgment.\"), mdx(\"p\", null, \"In its judgment, the 11th Civil Chamber clearly articulated the principle of separability but found, on the facts, that the company acting as ship manager had not been granted authority to enter into an arbitration agreement and that the arbitration clause was therefore invalid. The judgment relied on Article 388(2) of the former Code of Obligations and Article 63 of the former Code of Civil Procedure. Their current equivalents are Article 504(3) of the Turkish Code of Obligations (\\u201CTCO\\u201D) and Article 74 of the CCP, both of which require specific authority for a representative to enter into an arbitration agreement. The judgment further noted that an agent may not conclude a contract in the name of its principal without specific and written authorisation.\"), mdx(\"p\", null, \"These judgments demonstrate that separability does not operate as an absolute shield preserving the arbitration agreement in all circumstances. The formation and validity requirements of the arbitration agreement itself remain subject to independent scrutiny. In Turkish practice, one of the most frequently encountered limitations on the principle of separability is precisely the absence of specific authority to agree to arbitration.\"), mdx(\"p\", null, \"The Court of Cassation General Assembly on the Unification of Judgments, 19 June 2020, E. 2019/4, K. 2020/1, concerned the appropriate avenue of review in insurance arbitration. Nevertheless, the judgment contains significant observations concerning the fundamental structure of arbitration. It identified the separability and independence of the arbitration clause, together with the tribunal\\u2019s power to rule on its own jurisdiction under the principle of Competence-Competence, as structural principles of arbitration law. The judgment is particularly significant in that it treats separability not merely as a theoretical rule concerning validity, but as a functional principle designed to promote the speed and effectiveness of arbitral proceedings.\"), mdx(\"p\", null, \"Taken together, these judgments demonstrate that Turkish case law has adopted an approach consistent with international arbitration law. On the one hand, the Court of Cassation protects the parties\\u2019 agreement to arbitrate by recognising the independence of the arbitration agreement; on the other hand, it delineates the limits of the principle by requiring defects relating specifically to the formation of the arbitration agreement to be examined independently.\"), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"9. Practical Takeaways\")), mdx(\"p\", null, \"The principle of separability has concrete implications for contractual negotiations and dispute management. In light of the principle, we consider the following points particularly important in practice:\"), mdx(\"ul\", null, mdx(\"li\", {\n    parentName: \"ul\"\n  }, \"Specify expressly and separately the law governing the arbitration agreement. When Article 4(3) of the Turkish IAA is considered together with the new Section 6A under English law, it is no longer safe to assume that a choice of law for the underlying contract will necessarily extend to the arbitration clause. The law governing the arbitration agreement should be stated in a separate sentence from the governing law of the underlying contract and the seat of arbitration.\"), mdx(\"li\", {\n    parentName: \"ul\"\n  }, \"If the seat of arbitration and the law governing the underlying contract are different, make that choice deliberately. The divergence between these two connecting factors may result in the validity of the arbitration agreement being assessed under a law that the parties did not anticipate.\"), mdx(\"li\", {\n    parentName: \"ul\"\n  }, \"Expressly include authority to agree to arbitration in powers of attorney, signature circulars, and other authority documents. Under Article 504(3) of the TCO and Article 74 of the CCP, entering into an arbitration agreement requires specific authority. A significant number of Turkish court decisions finding arbitration clauses invalid arise from the absence of such authority. Particular care should therefore be taken where contracts are signed by intermediaries acting as agents, ship managers, distributors, or in similar capacities.\"), mdx(\"li\", {\n    parentName: \"ul\"\n  }, \"When terminating a contract, confirm that the arbitration clause survives. Including an express \\u201Csurvival\\u201D provision in termination, release, or settlement agreements stating that the arbitration clause remains in force can prevent subsequent disputes on this issue.\"), mdx(\"li\", {\n    parentName: \"ul\"\n  }, \"Do not abandon reliance on the arbitration agreement merely because the counterparty alleges that the underlying contract is invalid. As a rule, such an allegation does not prevent the continuation of the arbitral proceedings and may be determined by the arbitral tribunal.\")), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"10. CONCLUSION\")), mdx(\"p\", null, \"The principle of separability protects the parties\\u2019 agreement to arbitrate from general challenges directed at the underlying contract by requiring the arbitration agreement to be treated as a legally independent transaction. In this respect, separability, together with Competence-Competence, constitutes one of the two structural safeguards that make effective arbitral adjudication possible.\"), mdx(\"p\", null, \"The principle does not, however, confer absolute immunity on the arbitration agreement. Defects concerning the formation and validity of the arbitration agreement itself remain subject to separate examination. In Turkish practice, the clearest manifestation of this limitation is the requirement of specific representative authority to enter into an arbitration agreement.\"), mdx(\"p\", null, \"Turkish law has expressly embraced the principle at the statutory level through both the Code of Civil Procedure and the International Arbitration Act, while the Court of Cassation had already incorporated the principle into Turkish law through its case law long before the enactment of those statutory provisions. This demonstrates the alignment of Turkish arbitration law with the contemporary international approach to arbitration.\"), mdx(\"p\", null, \"In the next article of this series, we will examine the principle of arbitrability, which constitutes a prerequisite for the validity and effectiveness of the parties\\u2019 agreement to arbitrate.\"), mdx(\"p\", null, \"For the first article in the series: \", mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"Fundamental Principles of Arbitration #1: The Competence-Competence\")), mdx(\"p\", null, mdx(\"a\", {\n    parentName: \"p\",\n    \"href\": \"https://kesikli.com/tr/news-insight/2026-06-15-kompetenz-kompetenz-ilkesi/%5D(https://kesikli.com/tr/news-insight/2026-06-15-kompetenz-kompetenz-ilkesi/\"\n  }, \"https://kesikli.com/tr/news-insight/2026-06-15-kompetenz-kompetenz-ilkesi/](https://kesikli.com/tr/news-insight/2026-06-15-kompetenz-kompetenz-ilkesi/\")), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"Frequently Asked Questions\")), mdx(\"ul\", null, mdx(\"li\", {\n    parentName: \"ul\"\n  }, \"If our contract is found invalid, does the arbitration clause also become invalid? As a rule, no. The invalidity, termination, or expiry of the underlying contract does not automatically invalidate the arbitration clause. For the arbitration clause itself to be invalid, the relevant defect must be directed specifically at the arbitration agreement.\"), mdx(\"li\", {\n    parentName: \"ul\"\n  }, \"We have chosen the governing law of the underlying contract. Does that choice also govern the arbitration clause? Not necessarily. Under Article 4(3) of the Turkish IAA, where no separate choice of law is made for the arbitration agreement, Turkish law applies. Under English law, as of 1 August 2025, the law of the seat applies in the absence of an express agreement to the contrary. It is therefore advisable to determine expressly the law governing the arbitration agreement.\"), mdx(\"li\", {\n    parentName: \"ul\"\n  }, \"What happens if the person who signed the contract lacked authority to agree to arbitration? Under Article 504(3) of the TCO and Article 74 of the CCP, entering into an arbitration agreement requires specific authority. The absence of such authority may render the arbitration clause invalid notwithstanding the principle of separability. The Court of Cassation has issued judgments to this effect.\"), mdx(\"li\", {\n    parentName: \"ul\"\n  }, \"Are separability and Competence-Competence the same principle? No. Separability answers the question \\u201Cwhat remains valid?\\u201D, whereas Competence-Competence answers \\u201Cwho decides?\\u201D The two principles are complementary, but they perform different functions.\")), mdx(\"p\", null, mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"@\\uFEFF\\xD6mer KES\\u0130KL\\u0130\"), \"\\\\\\n\\\\\\n\", mdx(\"strong\", {\n    parentName: \"p\"\n  }, \"@Sena G\\xDCNG\\xD6RD\\xDC\")));\n}\n;\nMDXContent.isMDXComponent = true;","fields":{"slug":"/news-insight/2026-08-27-the-principle-of-separability/"}},"index":{"frontmatter":{"calltoaction":{"ctaline":"Let's Get Connected!"}}},"bannerimage":{"edges":[{"node":{"id":"b30b9a75-b060-5168-ba76-138ea13c2729","frontmatter":{"description":null,"image":{"childImageSharp":{"fluid":{"aspectRatio":1.2658227848101267,"src":"/static/279f9a774d35092291a69361d55ac227/14b42/pic01.jpg","srcSet":"/static/279f9a774d35092291a69361d55ac227/f836f/pic01.jpg 200w,\n/static/279f9a774d35092291a69361d55ac227/2244e/pic01.jpg 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