Relativity of contracts and severability of the arbitration clause in multi-contract transactions: a comparative analysis

Berlinguer, Aldo;Saladino, V.

2021-01-01

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Abstract

Should a dispute regarding the nullity or invalidity of an agreement that contains an arbitration clause be heard by an arbitrator, or by a court of ordinary jurisdiction? If a transaction is accomplished by signing multiple agreements, but only one of these agreements contains an arbitration clause, will arbitration be mandatory only for disputes related to that specific agreement, or also for disputes deriving from the transaction in general? When the written intent of the parties is ambiguous, the interpreter is called to “fill” such a void and apply general law principles to resolve the dispute. This article aims to present the arguments, principles, and solutions applied by various jurisdictions (of both civil law and common law traditions, inter alia the United States, Italy, France, Spain, Germany, etc.) to problems related to the applicability of an arbitration clause, particularly in the context of multi-contract transactions.