Independence of the Maritime Arbitration Clause under Egyptian Arbitration Law

In maritime contracts, arbitration clauses are often embedded within charterparties, bills of lading, shipbuilding contracts, sale and purchase agreements, contracts of carriage, and other commercial arrangements.

A fundamental question may arise: Does the invalidity or termination of the underlying maritime contract also invalidate its arbitration clause? Under Egyptian law, the answer is generally no.

The Principle of Separability

The principle of separability means that an arbitration clause contained in a contract is legally treated as an agreement separate from the other contractual terms. Accordingly, the arbitration clause does not automatically share the fate of the underlying contract.

Article 23 of the Egyptian Arbitration Law

Egyptian Law No. 27 of 1994 expressly recognizes this principle. Article 23 provides that the arbitration clause shall be treated as an independent agreement separate from the other terms of the contract.

It further provides that the nullity, rescission or termination of the contract shall not affect the arbitration clause, provided that the clause is valid per se.

Separability and the Tribunal's Jurisdiction

The principle of separability should be considered together with the competence-competence principle. Under Article 22, the arbitral tribunal has jurisdiction to determine objections concerning its own jurisdiction.

Why This Matters in Maritime Arbitration

Maritime contracts frequently involve multiple parties, complex contractual structures and claims arising from charterparties, bills of lading, cargo operations, and other maritime transactions. The separability principle helps ensure that an allegation concerning the underlying contract does not prevent the parties from having their dispute determined by the agreed arbitral tribunal.