Extension of Arbitration Clauses over Non-signatories
| Authors | |
|---|---|
| Year of publication | 2015 |
| Type | Article in Proceedings |
| Conference | Cofola International 2015: Current challenges to resolution of international (cross-border) disputes |
| MU Faculty or unit | |
| Citation | |
| Web | Open access |
| Keywords | Arbitration Agreement; Assignment; Consent; Estoppel; Extension; Group of Companies; Piercing of the Corporate Veil |
| Description | Consent, the final frontier. International commercial arbitration is deemed to be a dispute resolution mechanism embedded in consent of the parties involved. Presentation of such a mutual understanding is done through an arbitration agreement. Therefore, it is often quoted that the arbitration is a creature of such a contract. However, the aim of this paper is to analyse whether its contractual, indeed consensual, nature is the only element which the courts use to identify the subjects who may compel or must be compelled to arbitrate disputes, or whether they employ other considerations as well. The paper will focus mainly on extension doctrines less known even to a professional audience assignment, piercing of the corporate veil, estoppel & group of companies. A review of a selected case law and expert opinions leads to a conclusion that consent-finding analyst's is definitely a starting point of any analysis. However, at the same time courts and arbitrators do indeed use tools of contract interpretation and the ones based on equity or good faith considerations to establish, and exceptionally force, the implication of consent far beyond what is obvious. |
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