Pursuant to ICC Rules Article 8, unless otherwise agreed, an arbitration clause survives the main agreement, so that arbitrators retain jurisdiction to decide issues regarding contract termination. This rule does not apply, however, if the parties at the same time terminated the main agreement and, expressly or impliedly, terminated the arbitration clause. Such may be the case when the parties have made new rules about jurisdiction with respect to the same substantive legal relationship.

The severability of the arbitration clause does not apply when the reason for the end of the main agreement also applies to the arbitration clause contained therein, as for instance in the case of fraud, mistake or duress. Whether the case is brought before an arbitral tribunal or a court, such tribunal or court must decide on its jurisdiction (potential conflicts of jurisdiction must be resolved according to the rules about lis pendens, res judicata or recognition of foreign decisions). If the validity of the arbitration clause turns on the existence and validity of the main contract, the tribunal or court where the case is brought must review the main agreement without limitation in order to reach a decision on jurisdiction.

Société G. v X. AG et Tribunal arbitral, ATF 121 III 495, résumé in SJ 1996, 385-38 (1995).

For further information on this topic please contact Pierre-Yves Tschanz at Tavernier Tschanz by telephone (+ 41 22 704 37 00) or by fax (+41 22 704 3777 ) or by e-mail ([email protected]).
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