ICC Dispute Resolution Bulletin 2017 No. 4

Publisher:

Dyalá Jiménez Figueres

Julien Fouret

Daniel Robert Kalderimis" />
+ 15 more

Alberto Zuleta

Cecilia Azar

Chiann Bao

Daniel Robert Kalderimis" />

Daniel Robert Kalderimis

Domitille Baizeau

Dámaso Riaño

Frédéric Bachand

Galina Zukova

Reza Mohtashami

Rémy Gerbay

Samaa Haridi

Swee Yen Koh

Tejas Karia

Ucheora Onwuamaegbu

Utku Coşar

Valeria Galíndez

Yasmine Lahlou

Ziad Obeid

• Message from the President
• Welcome from the Editors-in-Chief
• Commentary
  • Proposal for a Uniform Rule on Arbitrator Immunity
  • Extension of the Arbitration Agreement to Non-Signatories
  • Jurisdictional Issues in Construction Arbitration
  • ICC Institute Training for Tribunal Secretaries
  • The UNCITRAL Secretariat Guide on the New York Convention
  • Fast and Furious: Q&As with Practitioners from Central and Eastern Europe
  • Paris Bar Takes the Pledge on Equal Representation in Arbitration
  • A Tale of Two Seats: Paris, London – and Brexit
  • Third Party Funding: Ethical and Financial Considerations
  • Africa and International Arbitration
  • What Role for Dispute Resolution in Supporting the Paris Agreement on Climate Change?
  • The Paris Agreement and Beyond: What Role Does Dispute Resolution Have to Play?
  • A Benchmark Publication in Investment Arbitration

  

  Andrea Sesin-Tabarelli

  Summary

  This article will provide the reader with an overview of the available legal theories on the basis of which award creditors have sought enforcement of awards against non-signatories and a comparison of the approaches taken in various jurisdictions such as France, the United Kingdom, the United States and Singapore.

  Extension of the Arbitration Agreement to Non-Signatories

  Introduction

  William Park once stated in a simple manner, ‘like consummated romance, arbitration rests on consent’. As the arbitration procedure is consensual by nature, it has been generally accepted that only entities or persons covered by the arbitration agreement are allowed to participate in the process. Thus, a party’s ability to arbitrate arises from its actions or consent to a contract that contains an arbitration clause. This position is supported by general principles of contract and agency law. Nonetheless, within multiparty relationships, it is often the case that parties who have not signed an arbitration agreement or a contract containing the arbitration clause may be brought into the process at a later stage.

  In domestic litigation processes, judges can call upon the real parties-in-interest in the dispute at an early stage of the process and are able to employ a wide variety of mechanisms to bring different parties into a single proceeding without requiring their consent for the consolidation of proceedings. These mechanisms are justified on the basis of expediency in procedures and the principles of efficiency and fairness. Conversely, as the arbitral procedure hinges on an agreement to arbitrate, the arbitral tribunal must respect principles found in contract law and consent. The general rule circumscribes only the parties directly concerned within the arbitration agreement, as it serves as a contract that, in principle, should only bind the parties concerned. This approach has also been reflected in the New York Convention , the UNCITRAL Model Law on International Commercial Arbitration, and other regional and institutional rules. Furthermore, contrary to litigation, an arbitral tribunal cannot ex officio bring a party into an arbitration proceeding.

  For these reasons, non-signatory entities are ordinarily not considered to be parties to an arbitration agreement and thus are not bo