Legal Nature and Separability of Arbitration Clause from the Main Contract from the Stand Point of Judicial Precedent

Referring the dispute to arbitration is done in two ways: independent contract and arbitration clause. An arbitration clause is included in the contract when there is still no controversy and parties will refer their possible future potential disputes to the arbitration. Arbitration clause is generally considered as a stipulation in contract. But the point that whether the arbitration clause has the potential of being the subject of stipulation in contract or not is the topic of this study and also finding that if it has such a feature in which divisions will that stipulation in contract be placed. These issues will study from the stand point of judicial precedent. The importance of this issue is that depending on the legal nature of the arbitration clause, its legal effects will be different. In this regard, by analyzing the concept of an arbitration clause, the views in this area and in particular with analyzing the important principle of the independence of the arbitration clause it can be assumed that despite the fact that the arbitration clause can be construed in terms of each of the conditions of the performance and result, however, since the arbitration clause has a direct effect on the denial of the jurisdiction of the court and can be the subject of an independent obligation, it has a special legal nature that it removes the traditional rules of civil law.