Does Arbitration Clause Survive Novation of Contract
Table of Contents
Introduction
Understanding Arbitration Clauses
Understanding Novation of Contract
Does an Arbitration Clause Survive Novation?
Influential Factors and Legal Principles
Conclusion
1. Introduction
Arbitration clauses and contract novation are two critical aspects of contract law. This article examines the intricate question of whether an arbitration clause survives the novation of a contract. The answer to this question can significantly impact the resolution of contractual disputes.
2. Understanding Arbitration Clauses
An arbitration clause is a section of a contract that stipulates any dispute arising from the contract will be resolved through arbitration. This clause specifies how the arbitration will be conducted, including the choice of arbitrator and the location of arbitration.
3. Understanding Novation of Contract
Novation is a legal process where a party to a contract transfers its rights and obligations to a new party, effectively creating a new contract. This process requires the agreement of all parties involved: the party exiting the contract, the party remaining, and the new party entering the contract.
4. Does an Arbitration Clause Survive Novation?
The question of whether an arbitration clause survives the novation of a contract is complex and depends on various factors. Generally, when a contract is novated, the original contract (including the arbitration clause) is extinguished, and a new contract is created. However, the survival of an arbitration clause can be influenced by the intent of the parties, the wording of the novation agreement, and the applicable law.
5. Influential Factors and Legal Principles
Several factors and legal principles influence whether an arbitration clause survives novation:
Intent of the Parties: If the parties explicitly state in the novation agreement that the arbitration clause should survive, then it likely will.
Wording of the Novation Agreement: If the novation agreement states that all clauses of the original contract will continue to apply, this could potentially include the arbitration clause.
Applicable Law: Different jurisdictions may have different rules regarding the survival of arbitration clauses after novation.
Doctrine of Separability: This legal principle treats the arbitration clause as a separate agreement from the main contract. If this doctrine is applicable, the arbitration clause may survive even if the rest of the contract does not.
6. Conclusion
The survival of an arbitration clause following the novation of a contract is a nuanced legal issue that hinges on various factors. It's essential to consider the intent of the parties, the novation agreement's wording, the applicable law, and legal principles like the doctrine of separability. Given the complexities involved, legal counsel should always be sought when dealing with such issues.
