Classification of Choice of Forum Clauses and their Separability from the Main Contract

Abstract

Classification and separability are two fundamental issues related to the doctrinal foundations of jurisdiction and arbitration clauses. The issue of separability concerns the relation between the main contract and the choice of forum clause, especially whether they may be subject to a different governing law and whether the contractual invalidity of the main contract necessarily affects the validity of a choice of forum clause. In the context of arbitration, separability is sometimes confused with the doctrine of Kompetenz-Kompetenz, which pertains to the question whether arbitrators may rule on their own jurisdiction and if such a ruling can be final.⁵⁰⁸ This is rather a matter of arbitration procedure than something directly related to arbitration agreements.