The Doctrine of Severability in Arbitration Agreements: What You Need to Know

Arbitration agreements have become increasingly popular in recent years as a means of resolving disputes outside of the courtroom. These agreements are contracts between parties that dictate how any disputes will be resolved, typically through binding arbitration rather than litigation. However, what happens if one part of an arbitration agreement is found to be unenforceable? This is where the doctrine of severability comes into play.

The doctrine of severability, also known as the separability doctrine, essentially allows for the enforcement of a valid arbitration agreement even if one part of it is found to be unenforceable. This means that if a court finds a provision in an arbitration agreement to be unconscionable or against public policy, the rest of the agreement may still be upheld and enforced.

The purpose of the doctrine of severability is to promote arbitration as a method of dispute resolution and avoid situations where the entire agreement is invalidated due to one unenforceable provision. It also allows for parties to tailor their arbitration agreements to their specific needs, knowing that if one provision is deemed unenforceable, the rest of the agreement will still hold up.

It is important to note that the doctrine of severability is not absolute and there are certain situations where the entire arbitration agreement may be invalidated. For example, if the unenforceable provision is a vital part of the arbitration agreement, it may not be possible to sever it without fundamentally changing the nature or purpose of the agreement.

It is also important to ensure that your arbitration agreement is drafted in such a way that it can be easily severed if necessary. This may involve including a severability clause that specifically outlines the ability to sever any unenforceable provisions without affecting the overall agreement.

In conclusion, the doctrine of severability is an important concept to understand when drafting or entering into an arbitration agreement. While it provides a level of flexibility and protection, it is not a guarantee that an entire agreement will be upheld in the event of an unenforceable provision. As always, it is important to consult with an experienced legal professional when drafting or entering into any type of legal agreement.