Supreme Court on Novation and Arbitration clauses

A couple of days ago, we had
pointed out a judgment of the Bombay High Court on separability. In that case,
a MoU between the parties treated an earlier SPA as “null and void”. The SPA
contained an arbitration clause, while the MoU did not. The Division Bench
held, however, that the dispute between the parties (inter alia pertaining to
validity of the MoU) was governed by the arbitration clause in the SPA, which
was separable and was not washed away with the ‘cancellation’ of the SPA. The
Supreme Court has considered the issue recently in separate proceedings: the
judgment of the Supreme Court has been handed down a week after the High Court
judgment. The Supreme Court has stated the law in the following terms:

“Learned counsel also submitted that arbitration clause is a collateral
term in the contract, which relates to resolution of disputes and not
performance and even if the performance of the contract comes to an end on
account of repudiation, frustration of breach of contract, the arbitration
agreement would survive for the purpose of resolution of disputes arising under
or in connection with the contract… We are of the view that survival of the
arbitration clause, as sought by the appellant in the agreements dated
01.04.2007 and 01.04.2010 has to be seen in the light of the terms and conditions
of the new agreement dated 01.02.2011. An arbitration clause in an agreement
cannot survive if the agreement containing arbitration clause has been superseded/novated
by a later agreement… if the contract is superseded by another, the
arbitration clause, being a component part of the earlier contract, falls with
it. But where the dispute is whether such contract is void ab intio, the
arbitration clause cannot operate on those disputes, for its operative force
depends upon the existence of the contract and its validity…”