Non-Signatories and International Arbitration : An Arbitrators Dilemma

Arbitrators sometimes hear cases involving entities and individuals that never signed an arbitration clause. Continental scholars sometimes refer to “extending” the arbitration clause. Lawyers in Anglo-American traditions tend to speak of “joining non-signatories.” Neither expression accurately captures what happens when arbitrators hear claims by or against someone who never signed the relevant contract. “Extension” of an arbitration clause can suggest imposing a duty beyond the circle of those who have agreed to arbitrate. Yet consent (even implied from circumstances) remains the cornerstone of arbitration, at least by arbitrators who value intellectual rigor and analytic integrity Likewise, “joining non-signatories” may mislead by implying that signatures are needed to create commitments to arbitrate, when many developed legal systems recognize unsigned commitments to arbitrate. In making the critical determination of who agreed to arbitrate, judges normally look for guidance to standards set by their own jurisdiction, whether in conflict of laws principles or substantive standards for determining contract validity. Either way, a court starts with the established legal system from which it draws its authority. In cross-border arbitration, however, the genesis of decision-making power derives from no single legal system. Arbitration arises from the parties’ decision that the dispute should not be sent to national courts. Although various countries lend support to the arbitral process (recognizing agreements and awards), the litigants themselves call the arbitrators into existence, and usually fi x the substantive standards to be applied. How should arbitrators approach the task of bringing in what might be called “less-than-obvious” parties? What standards should apply when one member of a corporate group seeks to join (or to avoid) an arbitration based on a contract signed by its corporate affiliate? What role (if any) should be played by transnational norms elaborated during the course of other arbitrations and cases addressing similar questions? The modest aim of this paper lies in suggesting analytic starting points in the exploration of these and related questions