Does Extension Of Arbitration Agreements To Non-Signatories Undermine The Principle Of Consent As Cornerstone Of Arbitration?

Introduction

International arbitration has long been regarded as the cornerstone for resolving disputes between parties engaged in cross-border transactions.¹ A fundamental principle underpinning this mechanism is that arbitration is consensual²- a contractual arrangement entered voluntarily to resolve disputes outside the traditional court systems. As frequently expressed in arbitration agreements, consent generally binds only parties to the agreement. Thus, a third party (jus tertii) cannot be bound in arbitration, notwithstanding its legal or financial interest in the dispute.³ This accords with the doctrine of privity of contract which has been established in both civil and common law jurisdictions.⁴

However, in modern complex contracts, it is near-impossible to have all parties as signatories to the same arbitration agreement. Thus, economic realities may justify the extension of the arbitration agreement to third parties who are the real parties to an underlying contract. Such extension, in principle, contrasts the nature of arbitration and appears to undermine the vital element of consent.⁵ This article seeks to examine the parameters of such an extension and whether it merely reflects the evolution of consent or undermines consent. In addition, we also considered the issue of appointment of arbitrator(s) with respect to extension of arbitration agreement to non-signatories.

Extending arbitration agreement to non-signatories

In modern economic reality, complex business relations, such as construction and maritime contracts, may not be amendable to simple consensual, bipolar characterisation of arbitration due to multiple value chain partners and collateral relationships. Accordingly, national courts and arbitral institutions have developed contract and commercial law-based theories to "determine the scope of rationae personae of the arbitration"⁶ to compel⁷ or include non—signatory parties to arbitral proceedings. This is referred to as "extending" the arbitration agreement, "binding non-signatories" or "joining non-signatories."⁸ In Thomson-CSF, SA v. Am. Arbitration Association, the US Court recognised that arbitration is consensual in nature but acknowledged that:

Flowing from the above, it can be deduced that there are instances where non-signatories to an arbitration agreement could be bound by the arbitration agreement resulting in compelling such non-signatories to arbitral proceedings. In addition, there are legal theories that have become recognised within the arbitration community as guides for binding non-signatories to arbitration. These legal theories include agency and apparent authority, transfer and assignment, estoppel, alter ego and piercing the corporate veil, third-party beneficiary rule, incorporation by reference, guarantees, and the group of companies doctrine, among others.

The aforementioned theories can be classified into two groups, to wit: contract-based theories and doctrine-based theories.¹⁰ Contract-based theories rely on a contractual connection that ties a non-signatory to a signatory within the arbitration agreement, while doctrine-based theories draw from legal doctrines established by national courts or arbitral tribunals. It is important to state that under contractual theories, the extension of the arbitration agreement to non-signatories depends primarily on the determination of implied consent of the non-signatory through the application of contract principles.¹¹ On the other hand, doctrine-based theories prioritize economic reality considerations which centers on the economic relationship between the non-signatory and any of the signatories of the arbitration agreement, serving as the primary determinant of the extension of arbitration agreements.¹² Some of these legal theories will be examined briefly under the two broad classifications mentioned earlier.

Extension Of The Arbitration Agreement Under Contract Base Theory

Extension Under Third Party Beneficiary Rule

Under the general principle of contract law, the parties have the prerogative to confer the benefits of their agreement on a party not originally obligated by the contract. This scenario prompts two pivotal inquiries: firstly, whether the third-party beneficiary is entitled to initiate an arbitration claim against the original parties, and secondly, whether any of the original parties retain the right to bring forth an arbitration claim against the third-party beneficiary. In some jurisdictions such as England, issues related to the third-party beneficiary status are governed by statutory provisions which generally contain provisions that apply to arbitration agreements.¹³ The Contracts (Rights of Third Parties) Act in England allows a third-party beneficiary to receive the "pure benefit" of an arbitration agreement. Thus, if the beneficiary exercises the right under the contract, he may insist that arbitration shall be the main dispute resolution mechanism for any dispute between him and the promisor concerning their legal relations.¹⁴

In some other jurisdictions, several national courts and arbitral tribunals confirmed that a non-signatory who claims third-party beneficiary rights under a contract is entitled to invoke the arbitration clause contained in the contract and also is bound by that clause.¹⁵ The rationale behind this principle is that a third party who has received benefits under a contract (with an arbitration agreement) should not be allowed to avoid reference of any dispute emanating from the contract to arbitration. It is deemed that such a third party has consented impliedly to be bound by the arbitration clause.

Furthermore, in determining whether a party who has benefited from a contract is bound by the arbitration agreement, the original parties' objectives and good faith intentions are critical, especially depending on whether the parties aim to confer on the third party a real benefit under the main contract.¹⁶ In the Nisshi Shipping case,¹⁷ the Court held that the original parties had clearly purported to provide a real benefit of 1 percent commission on the broker and therefore, he is entitled to invoke the arbitration clause against one of the original parties. As stated earlier, the extension of the arbitration agreement in this regard is predicated on implied consent.

Extension Under Guaranty Agreements

Guaranty connotes a contract where the guarantor undertakes an obligation to be liable for the performance of the original debtor in case the original debtor does not perform its obligations.¹⁸ It is also defined as "a promise to an answer for the payment of some debt, or the performance of some duty, in case of the failure of another who is liable in the first instance."¹⁹

There are arguments for and against the extension of the arbitration agreement contained in the main contract to the guarantor. According to the first approach, the guaranty agreement is an independent agreement that does not contain any express agreement to arbitrate, therefore, the guarantor cannot be bound to arbitrate. Further to this approach, courts have held that a guarantor is not a party to the contract which contains the arbitration agreement.²⁰ Under this approach, a non-signatory guarantor may however be compelled to arbitrate only "when the particular guaranty explicitly incorporates the underlying arbitration by reference."²¹ Thus, there is a general rule that a guarantor cannot be forced to arbitrate, except when it expressly agreed to arbitrate or when the arbitration clause is incorporated into the guaranty agreement.²²

The other approach postulates that an arbitration agreement can be extended to the guarantor, stating that by the execution of the guaranty agreement, the guarantor automatically becomes a party to the main contract and hence a party to the arbitration agreement itself. In SCC case No 38/1997,²³ the sole arbitrator decided that "the third party (the guarantor) was bound by the arbitration clause in the main agreement when the undertakings of the debtor and the guarantor were identical or equivalent."

Thus, in deciding the extension of an arbitration agreement to third parties under a guaranty agreement, the courts OR arbitral tribunals will look at the scope of an arbitration agreement, the connections between the guaranty agreement and the main contract, the awareness, and approval of the arbitration agreement by the guarantor and to the nature of obligations of the guarantor regarding the main contract.²⁴

Some other theories that have become recognised within the arbitration community as guides for binding non-signatories to arbitration, which can be classified under the contract base theory include incorporation by reference where a party to an arbitration agreement is in a separate contractual relationship with a non-signatory which incorporates the existing arbitration clause; estoppel which binds a non-signatory who by knowingly exploiting the agreement is estopped from avoiding arbitration despite having not signed the agreement; theory of assumption that binds a non-signatory party where the party's subsequent conduct indicates that it is assuming the obligation to arbitration. Other private law principles include agency under which an agent who performs a contract on behalf of its principal can bind the principal, who otherwise is a non-signatory party, especially where the agent acts within its authority and subject to the governing law; assignment of underlying contract with the arbitration agreement,²⁵ subject to the law regulating assignment and governing law of the arbitration agreement.²⁶

Extension Of The Arbitration Agreement Under Doctrine Base Theories

Extension Under Group Of Companies Doctrine

According to Wilske,²⁷ under the group of companies' doctrine, the arbitration agreement can be extended to "the parent or other affiliate company" of the signatory of an arbitration agreement "provided that such non-signatory was somehow involved in the conclusion, performance or termination of the contract in dispute." The application of the group of companies was described in the case of Dow Chemical France v. Isover Saint Gobain²⁸, where the tribunal held that "the arbitration clause expressly accepted by some of the companies of the group should bind the other companies which, by virtue of their role in the conclusion, performance, or termination of the contracts containing the said clauses, and in accordance with the mutual intention of all parties to the proceeding." It was further enunciated that the group of companies' doctrine was formed according to the customs in international trade and was applicable to establish the jurisdiction of the tribunal over the claimant. In Case No. 11160, Final award (2002),²⁹ the ICC arbitral tribunal held that the participation of the second respondent in the preparation and execution of the contract in dispute may determine the intention of the parties and can be inferred as an extension of the contract and arbitration clause to the second respondent. Similarly, in Sponsor AB v. Ferdinand Louis Lestrade,³⁰ it was enunciated that "a group of companies indeed possesses, notwithstanding the separate legal personality pertaining to each of them, a unique economic reality, which the court has to take into consideration when extending the arbitration agreement over third parties within a group."

The preconditions for the application of the group of companies doctrine are to wit: firstly, the non-signatory should be involved in the negotiation, performance, and termination of the contract in dispute, thus, creating by its act the single economic reality with the signatory to the arbitration agreement. Secondly, the non-signatory should show its intent to arbitrate by exercising control over the signatory of the arbitration agreement, mainly through the existence of parent-subsidiary relationships between them. Finally, the application of trade usage to procedural issues justifies the extension of the arbitration agreement under the group of companies' doctrine over non-signatories.³¹

Essentially, international arbitration involves the application of a combination of distinct national laws to various aspects of the arbitration. Separate systems of laws may be chosen by the parties to apply to the procedure, the substance, the enforcement, and the arbitration agreement, respectively.³² Thus, while some legal doctrines are permissible under the laws of one jurisdiction, the reverse may be the case in some other jurisdictions. It is important to note that while the group of companies doctrine is accepted in some jurisdictions, in some other jurisdictions there are roadblocks to accepting same. This has resulted in difficulty in the enforcement of arbitral awards obtained from a jurisdiction (where the group of companies doctrine is accepted) in another jurisdiction (where the group of companies doctrine is likely unaccepted).

Piercing The Veil/Alter Ego

Another legal theory on doctrine-based is the extension of arbitration agreement to non-signatories under piercing the corporate veil. Piercing the corporate veil is the legal doctrine that allows for the disregard of a company's separate legal identity, thereby holding individual shareholders personally liable for the company's actions. This occurs when the company is effectively used as an extension or alter ego of its controller to conduct its personal business affairs. In such cases, the corporate veil can be pierced, allowing for the imposition of liability on the controller under contractual and arbitration agreements.³³ In some jurisdictions such as Singapore, it is now recognized that tribunals have jurisdiction to "pierce the corporate veil" and join parties who have not explicitly signed an arbitration agreement, based on the alter ego doctrine.³⁴

In Aloe Vera of America, Inc. v. Asianic Food (S) Pte Ltd,³⁵ an arbitration agreement was formed between Aloe Vera of America Inc (AVA) and Asianic Food (S) Pte Ltd (Asianic). However, the contract containing the agreement was signed by Mr. Chiew Chee Boon (Mr. Chiew), a shareholder of Asianic, on behalf of the company. Subsequently, a dispute arose between AVA and Asianic, leading to the initiation of arbitration proceedings by AVA against Asianic and Mr. Chiew. The tribunal held that "there was a contract, the Agreement, between Asianic and AVA that contained an arbitration clause. The agreement was signed by Mr. Chiew on behalf of Asianic and it is not disputed that Mr. Chiew had set up Asianic and was active in running its business with AVA pursuant to the Agreement. The provisions of the Agreement evidenced that the parties had agreed to disputes relating to the business established by that contract being resolved by arbitration and it was therefore capable of being considered as "an agreement in writing under which the parties undertake to submit to arbitration...difference which have arisen" within the meaning of that term in Art II of the Convention for an arbitration involving not only Asianic and AVA but also Mr. Chiew himself. There can be no doubt that at the time he signed it, Mr. Chiew anticipated that disputes arising from the business under the Agreement would be settled by arbitration although, probably, he was not contemplating that he himself would personally be a party to the arbitration proceedings." The tribunal further held that Mr. Chiew was bound by the arbitration agreement and rendered a final award ordering both Asianic and Mr. Chiew to pay AVA damages.

A corporate veil is also pierced to prevent fraud or malfeasance where a parent company controls the activities of its subsidiary especially where a legal entity is created as a design to avoid liability to the creditor or purchaser.³⁶ The alter ego doctrine is often applied where "there is such unity of interest and ownership that separate personalities of the corporations no longer exist, and that failure to disregard the corporate form would result in fraud or injustice."³⁷

Having considered some of the legal theories justifying the extension of arbitration agreements to non-signatories, we will proceed to examine whether these theories undermine the principle of consent which is the cornerstone of international arbitration.

Has consent merely evolved or has it been emasculated in modern arbitration?

There are arguments that in the absence of a binding arbitration agreement, arbitrators and judges should not bind the non-signatory to arbitration and that this is consistent with both international and national legal instruments. These arguments contend that extending arbitration agreements to non-signatories derogates from arbitral autonomy by imposing arbitration upon a party that has not consented to waive its right to judicial recourse in the first place.³⁸

Most international instruments on arbitration such as Article II (1) of the New York Convention; Article 1(2)(a) of the European Convention in International Commercial Arbitration; Article 7 of the UNCITRAL Model Law; Article 1 of the Inter-American Convention on International Commercial Arbitration and Article 25 (1) of the ICSID Convention recognise arbitration agreement signed by the parties under which they "undertake to submit to arbitration all or any differences ..." A common thread in the instruments is the operative phrase "the parties" consenting to submit their differences to arbitration. Thus, in Dallah Real Estate v. Ministry of Religious Affairs, Government of Pakistan, the English Supreme Court stated that the validity of the arbitration agreement depends on whether there existed between Dallah and the Government any relevant arbitration agreement.³⁹ Also, in the United States, it has been held that "arbitration is strictly a matter of consent – and thus ... courts must typically decide any questions concerning the formation or scope of an arbitration agreement before ordering parties to comply with it."⁴⁰ Both French⁴¹ and Russian courts⁴² (civil law jurisdictions) have followed similar trajectory. Under Article V(1)(c) of the New York Convention, an arbitral award may be refused enforcement on grounds of excess of authority where a non-signatory is improperly joined. In Sarhank Group v. Oracle Corp.⁴³, the Court refused to enforce an award against a non-signatory American parent company that was improperly joined to arbitration in Cairo.

In the same vein, there are also arguments in support of extension of arbitration agreement to non-signatory parties. In the US, for example, the 'Restatement (Second) of Contracts' (1981) provides that a promise 'may be inferred wholly or partly from conduct'.⁴⁴ The Contracts (Rights of Third Parties) Act in England allows a third-party beneficiary to receive the "pure benefit" of an arbitration agreement. Additionally, parties may evince mutual intention to be bound in which the agreement shows itself, not only by words, but also by behaviour including 'acts of failure to act'. Although corporate personality is created in order to contain liability within a particular corporate entity,⁴⁵ in reality, extension seeks to identify the true party in interest and, more importantly, targets a more creditworthy (deep pocket) member of a group of companies who may have participated in negotiating or performing the contract. Redfern and Hunter would argue that recent case law confirms⁴⁶ that a court tasked with whether to bind a third party will seek to discover the parties' common intention and a variety of other factors such as the non-signatory's participation in negotiating the contract, its interest in the outcome of the dispute and whether its contract is intertwined with the contract under which the dispute arose.

In any event, binding a non-signatory to arbitrate does not dispense with the necessity of an arbitration agreement. Instead, it means that the agreement takes its binding force from prevailing circumstances other than the formality of signature⁴⁷, especially where a cause of action is a derivative of earlier agreements in earlier chains of transactions. Consent may be implied to objectify appraisal of fact patterns where an agreement exists but without the traditional formalities, as circumstances of parties' relationship will be seen as reflective of the agreement.

The Practicability Or Otherwise Of Group Of Companies And Piercing The Veil Theories

As stated earlier, a tribunal tasked with deciding whether an arbitration agreement binds a third party will seek to discover the parties' common intention and a variety of other factors such as the non-signatory's participation in negotiating the contract, its interest in the outcome of the dispute and whether its contract is intertwined with the contract under which the dispute arose.⁴⁸ From the above, it is not enough to extend an arbitration agreement executed solely by a company to its counterpart companies on the grounds that the "signatory company" has relations with the counterpart companies. The most common practice in this regard is compelling a company with a "deep pocket" within the counterpart companies to arbitral proceedings solely because of the notion that in the event that the arbitral award goes in favour of the Claimant, the fruit of the award can be easily realised.

Notably, the case of Dow Chemical (supra) enumerated three conditions for the extension of arbitration agreement to non-signatories to wit: (a) there must be a tight group structure where there must be an accurate control power which is handled by a company over the other companies; (b) the non-signatory company must participate explicitly to all parts of the contract which contains arbitration clause and; (c) there must be a mutual intention which makes the group of companies considered as one and bound by the arbitration agreement. Thus, when a company (which is part of a group of companies) is concluding, performing, and/or negotiating contractual relationships with an entity on the other hand, and it appears that the group of companies pursuant to the common intention of all parties is the real parties to the contract, it connotes that the said group of companies can be compelled to arbitral proceedings for the resolution of any dispute that may arise therefrom.⁴⁹

Logically speaking, it follows that a group of companies cannot without more be compelled to arbitral proceedings by an entity having an arbitration agreement with a subsidiary company. The arbitral tribunal in ICC matter no. 5721⁵⁰ enunciated that "in summary, the belonging of two companies to the same group or the domination by one shareholder never in itself constitutes a sufficient reason justifying, in full, the piercing of the corporate veil. When, however, a company or an individual person appears to have been the pivot of the contractual relations in a particular transaction, it is appropriate to examine with care whether the independence of the parties must not, exceptionally, be disregarded giving way to a general judgment. One will accept such an exception when it appears that a confusion has been maintained by the group or by the majority shareholder."

This implies that merely having an arbitration agreement with a subsidiary company does not automatically grant the authority to compel any or the entire group of companies to participate in arbitration proceedings. Thus, additional factors or evidence beyond the existence of the agreement are necessary to enforce such proceedings against the group of companies.

The Issue Of Appointment Of Arbitrator(s) in Extending Arbitration Agreement To Non-Signatories

One of the challenges associated with extending arbitration agreements to non-signatories is the appointment of arbitrators. Typically, the initial step in choosing arbitrator(s) is to reference the contract, treaty, or law which is the basis for the parties' agreement. The parties are generally free to adopt any workable method of appointment that suits their needs.⁵¹ However, where parties fail to make provisions for the appointment of arbitrator(s), the default mechanism of the law or rule governing their agreement may stipulate the number and method of appointing the arbitrator(s). In the latter, there are little or no challenges encountered in extending arbitration agreements to non-signatories. This is because the duty of appointing arbitrator(s) to preside over the arbitral proceedings involving non-signatories to the arbitral agreement is purely maned by the governing laws and rules of the arbitration agreement. However, where parties make provisions as to the number of arbitrator(s) to be appointed by them, the challenges that may be encountered here are more evident.

As stated earlier, the challenges are more evident where the parties to the arbitration agreement make provisions for the appointment of arbitrators, especially where each party is designated to appoint a specific number of arbitrator(s). The most common provisions in this regard allow a total of three (3) arbitrators – (Claimant and the Respondent are to separately appoint one (1) arbitrator each while the two (2) arbitrators so appointed, or the parties will then jointly appoint the third arbitrator who would be the president of the tribunal).⁵² In some cases, the above scenario is usually contemplated by the parties to the arbitration agreement. It thereafter metamorphoses into a clause in the arbitration agreement before the arbitral proceedings that seek to compel non-signatories to be parties to the proceedings. The likely challenge(s) that may arise from this situation is the faith of the non-signatories to the arbitration agreement who do not have arbitrator(s) on the panel of the arbitral proceedings or did not have the opportunity of having a similar provision in the arbitration agreement to appoint arbitrators.

Concerning the above, some regulations⁵³ anticipate that multiple parties with a mutual stake in the dispute will jointly nominate arbitrator(s). However, there are instances where parties with a mutual stake in the dispute will not reach a consensus regarding the appointment of arbitrator(s). Thus, ensuring each party's equal opportunity to present their case and contribute to the constitution of the arbitral tribunal poses a significant challenge. This challenge was underscored by the French Cour de Cassation in Dutco v. BKMI & Siemens⁵⁴, where the Court held that the co-respondents compelled to jointly nominate an arbitrator under a standard ICC clause of the time, and having done so under protest, did not guarantee their rightful participation in tribunal formulation. In French legal doctrine, equality among parties in arbitration selection is considered a matter of public policy, non-waivable once a dispute arises. In response, arbitral institutions implemented a fallback mechanism: where they are unable to reach a consensus or where there are more than two distinct positions among them, the appointing authority or the administering institution may need to intervene to guarantee equitable treatment of all parties by appointing the arbitrators that will constitute the tribunal.⁵⁵

Conclusion

Extension of arbitration agreement seeks to foster a one-stop, effective, and effectual determination of the dispute between the parties and avoid parallel satellite proceedings with probable inconsistent results. In such cases, constituents of consent have only been adapted to meet the exigency, as a more pragmatic approach that focuses on the analysis of facts and elevates commercial practice, economic reality, good faith, and substantial justice in complex and multifaceted dimensions of large projects above barren formalities. The task of identifying and binding the real parties is enormous and depends on the factual circumstances of the case, guided by the theories enumerated above.

Footnotes

1 N. Blackaby, C. Partasides, A. Redfern, J. Martin, "An Overview of International Arbitration", https://www.international-arbitration-attorney.com/wp-content/uploads/Overview-of-International-Arbitration.pdf accessed on 8^th January 2024.

2 Stravros Brekoulakis, "Third Parties in International Arbitration," (1^st Edn, OUP 2010) 3

3 Brekoulakis (Op cit.) 3

4 Gary B. Born, International Commercial Arbitration (Second Edition) 1405 (Kluwer Law International, 2d Ed. 2014)

5 Eldiiar Raiymkulov, Non-signatory parties in arbitration – What can the Arbitration Institution of Kyrgyz Republic learn from International practice, (Central European University 2016) P. 1

6 Hanotiau, 'Consent to arbitration: Do we share a common vision?' 2010 Annual Freshfields Lecture, London, 21 October 2010

7 William D. Gilbride Jr. and Erin R. Cobane, Extending Arbitration Agreements to bind non-signatories, 2015.

8 William W. Park, Op Cit P. 2

9 Thomson-CSF, SA v. Am. Arbitration Ass'n, 64 F.3d 773, 776 (2d Cir. 1995).

10 Karyna loban, "Extension of the Arbitration Agreement to the Third Parties" https://www.international-arbitration-attorney.com/wp-content/uploads/arbitrationlawloban_karyna.pdf accessed on accessed on 8^th January 2024.

11 Ibid

12 Ibid

13 Contracts (Rights of Third Parties) Act (England) 1999, s 8(1) and s 8(2); Singaporean Contracts (Rights of Third Parties) Act 2001, s 9(1) and s 9(2).

14 Neil Andrews, 'Strangers to Justice No Longer: The Reversal of The Privity Rule Under the Contracts (Rights of Third Parties) Act 1999' (2001) 60 Cambridge Law Journal 353.

15 Riek v Xplore-Tech Services Private Ltd et al, 34 ICCA Yearbook 2009, 1056 (MDNC 2009).

16 Brekoulakis (Op Cit) 61

17 Nisshin Shipping Co Ltd v Cleaves Co Ltd [2003] EWHC 2602 (Comm), [2003] 2 CLC 1097

18 Geraldine Andrews and Richard Millett, Law of Guarantees (7th edn, Sweet & Maxwell 2015) 2.

19 Black's Law Dictionary, 7^th ed., s.v. "Guaranty"

20 U.S supplier v. Indian Buyer Interim award in case No. 4367 (1984) in Yearbook Commercial Arbitration, Vol. XI (A.J. van den Berg ed., Kluwer Law and Taxation Publishers, Deventer/Netherlands 1986): 135-136; and Grundstad v. Ritt, 106 F. 3d 201 (7^th Cir. 1997)

21 Grundstad v. Ritt (supra)

22 Bettis Group Inc. v. Transatlantic Corp., 55 Fed. Appx. 717 (5^th Cir. 2002)

23 The A Company (Israel), The B Company (Israel) v. The Former Soviet Republic Jurisdictional Award in SCC Case 38/1997 and 39/1997 in International Arbitration Court Decision 2^nd edn., (Sigvard Jarvin, Annette magnuson eds., Jurisnet 2008); 1089-1113

24 Loban Op Cit.

25 Sigvard Jarvin, The Group of Companies Doctrine, in AAMCA, 183

26 Nigel Blackaby Et al (6^th Edition) 2015, Oxford University Press, P. 2.55

27 Wilske, Stephan, Shore, Laurence Ahrens, Jan-Michael, "The Group of Companies Doctrine – where is it heading?", American Review of Inernational Arbitration, Vol. 17 (2006): 74.

28 Dow Chemical France v. Isover Saint Gobain, Interim Award in case No. 4131 (1982) in Yearbook Commercial Arbitration Vol. IX (P. Sanders ed. Kluwer Law and Taxation Publishers, Deventer/Netherlands 1984): 131-137

29 Case No. 11160, Final award (2002) in ICC International Court of Arbitration Bulletin Vol. 16 No 2 (2005): 99

30 Sponsor AB v. Ferdinand Louis Lestrade, (Court of Appeal of Pau 1986) in Yearbook Commercial Arbitration, Vol. XIII (A.J. van denBerg ed., Kluwer Law and Taxation Publishers, Deventer/Netherlands 1988): 149-151

31 Loban, Op Cit.

32 Nigel Blackaby and others, Redfern and Hunter on International Arbitration (6th edn, OUP 2015) 157.

33 Kia Jeng Koh, "Extending your reach to the 'invisible parties' to the arbitration agreement", https://dentons.rodyk.com/en/insights/alerts/2017/october/5/extending-your-reach-to-the-invisible-parties-to-the-arbitration-agreement accessed on 7^th February 2024.

34 Ibid

35 Aloe Vera of America, Inc v. Asianic Food (S) Pte Ltd & another (2006) 3 SLR (R) 174.

36 Case Concerning the Barcelona Traction, Light & Power Co., [1970] I.C.J. Rep. 3, 38-39 (I.C.J.)

37 Oriental Commercial & Shipping Co. (U.K.), Ltd v. Rosseel, NV, 609 F.Supp. 75, 78 (S.D.N.Y. 1985)

38 Pietro Ferrario, 'The Group of Companies Doctrine in International Commercial Arbitration: Is There any Reason for this Doctrine to Exist?' (2009) 26 J. Int'l Arb. 647.

39 Dallah Real Estate v. Ministry of Religious Affairs, Gov't of Pakistan [2010] UKSC 46, 11

40 Granite Rock Co. v. Int'l Bhd of Teamsters, 130 S.Ct. 2847, 2857 n.6 (U.S. S.Ct. 2010)

41 OIAETI v. SOFIDIF, 1987 Rev. arb. 359, 363 (Paris Cour d'appel) (Judgment of 19 December 1986)

42 Decision of 23 December 2011, Case No. A40-56769/07-23-401, 6 (Russian S. Arbitrazh Ct.)

43 404 F. 3d 657 (2d Cir. 2005)

44 § 4

45 4 Salamon v. Salamon & Co. Ltd. (1896), [1897] A. C. 22 (H.L.).

46 Nigel Blackaby Et al Op Cit, P 2.49

47 William W. Park, Op Cit P. 11

48 Nigel Blackaby Et al Op Cit, P 2.49

49 ICC matter no: 5103, award of 1988, 115 J. Du Droit Int'l 1206 (1988) with annotation by G.A. Alvarez

50 ICC matter no: 5721, award of 1990, 117 J. Du Droit Int'l 1019 (1990) with annotation by Y. Derains.

51 International Centre for Settlement of Investment Disputes - Number of Arbitrators and Method of Appointment – UNCITRAL Arbitration, https://icsid.worldbank.org/procedures/arbitration/uncitral/appointments accessed on 9th February 2024.

52 Ibid

53 Article 12(6) of the ICC 2021 Arbitration Rules; Article 8.1 of the LCIA Arbitration 2020

54 Dutco (Siemens AG and BKMI Industrienlagen GmbH v. Dutco Construction Co. (Cour de Cassation (1re Ch. Civile) 7^th January 1992

55 Article 12(8) of the ICC 2021 Arbitration Rules; Article 8.1 of the LCIA Arbitration 2020; Ludwig Marie-Helene & Veronelli Andrea Lapunzina, "Party-Appointed Arbitor" https://jusmundi.com/en/document/wiki/en-party-appointed-arbitrator accessed on 12^th February 2024.

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