Say the ratio out loud before you open Reasoning — recalling it unprompted is exactly what the exam pays for.
Why it matters
It does two jobs this paper needs. It states the function of s. 9 — and therefore its limit — and it states the separability of the arbitration clause in the plainest terms the course gives.
Facts
The dispute concerned a partnership. Interim relief was sought under s. 9, and the existence and survival of the arbitration agreement were in issue alongside the validity of the main contract.
Held
On s. 9. The court under s. 9 merely formulates interim measures so as to protect the right under adjudication before the arbitral tribunal from being frustrated. That is the whole of its office.
On separability. The existence of an arbitration agreement is a condition precedent to the exercise of the power to appoint an arbitrator. The question of the existence and validity of the arbitration agreement is altogether different from that of the substantive contract in which it is embedded: the arbitration agreement survives annulment of the main contract, because it is separable from the other clauses and constitutes an agreement by itself.
On interpretation. Decided cases under the 1940 Act are to be applied with caution to questions arising under the 1996 Act.
Reasoning
Step one — identify whose adjudication it is. Under the 1996 Act the adjudication belongs to the tribunal. The court's interim jurisdiction is therefore parasitic: it protects a right that someone else will decide. That is why s. 9 cannot be used to obtain, in substance, the relief claimed in the arbitration.
Step two — separate the two agreements. A contract containing an arbitration clause contains two bargains: the commercial bargain and the bargain about how disputes over it will be decided. If the second fell with the first, a party could destroy the tribunal's jurisdiction merely by alleging that the contract was void — which would make the clause useless in exactly the case where it is needed.
Step three — the consequence for pleading. An attack on the main contract is not, without more, an attack on the clause. A party who wants to displace the clause must attack the clause.
Exam use
It opens: What is the doctrine of separability? and What is the scope of the court's power under s. 9?
Pair it with Sundaram Finance on timing (relief may precede the notice) and with Olympus Superstructures on separability under s. 16(1), where the same principle is stated as part of the tribunal's competence to rule on its own jurisdiction.
In a problem question where a party resists arbitration by saying the contract is void ab initio, this is the first authority: the plea goes to the tribunal under s. 16, not to the court, and the clause stands until the clause itself is impeached.
It does not decide what happens where the allegation is that no contract, and therefore no clause, ever came into existence at all — a question of the existence of the agreement rather than its validity, and now the express subject of the enquiry the court makes when it appoints an arbitrator.