Breaking with Convention: The Supreme Court’s Approach to Separability in Kabab-Ji v KFG
Ryan Henry Ho
University of Cambridge, LSE, GB
LL.M, Cantab; LL.B, LSE. I would like to thank the LSE Law Review for their invaluable comments and feedback throughout. I am also grateful to my teammates, coaches, and opponents I met during the 29th Willem C. Vis Moot, without whom my ideas would have gone unrefined and untested. All errors remain my own.
This case note explores the recent ground-breaking decision rendered in Kabab-Ji, which saw the Supreme Court break with the rest of the world with regards to its interpretation as to the separability of the arbitration agreement from the underlying contract (and the subsequent choice of law analysis that follows). It is argued ultimately that the English approach in Kabab-Ji is correct by tracing through the prior conceptions of the separability and demonstrating that the newer approach is more in line with what parties intend.