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Contents
- Preliminary Material
- Main Text
- 1 Introduction: Setting the Framework of the Discussion
- Preliminary Material
- A The Issue
- B Scope and Limitations
- C Existing Literature and Contribution of the Book
- D Structure of the Work
- E Final Remarks
- Part I Legal Bases for Third-Party Claims I: Traditional Theories of Contract and Corporate Law, Terms in Arbitration Clauses, Rules and Laws
- Preliminary Material
- 2 Third-Party Claims Pursuant to Traditional Theories of Contract and Corporate Law
- Preliminary Material
- 2.01
- 2.02
- A Assignment and Other Forms of Transfer, Including the Cases of Bills of Lading, Subrogation, Merger, and Transfer of Debt
- 2.03
- 2.04
- 2.05
- (1) Assignment
- 2.06
- 2.07
- Assignment of an arbitration clause and consent of the assignee
- Assignment of an arbitration clause and consent of the debtor
- Applicable law and assignment of an arbitration clause
- The legal position of the assignor after the completion of the assignment
- (2) Other forms of transfer: bills of lading, subrogation, merger, transfer of debt
- (3) Transfer of an arbitration clause pending arbitration
- B Representation: Agency and Apparent Authority
- 2.76
- 2.77
- 2.78
- 2.79
- (1) Conflict of laws rules on validity and effects of an arbitration clause concluded by an agent or representative
- (2) Substantive rules on validity and effects of an arbitration clause concluded by an agent or representative
- 2.82
- 2.83
- 2.84
- 2.85
- 2.86
- 2.87
- 2.88
- Actual authority and power
- Apparent or ostensible authority
- Representation and apparent authority in transactions involving corporations and state agencies
- C Third-Party Beneficiary
- 2.143
- 2.144
- 2.145
- (1) Whether the third-party beneficiary is entitled to enforce the arbitration clause, contained in the main contract
- (2) Whether the party promising the substantive benefit may bring an arbitration claim against the third-party beneficiary
- (3) Applicable law and third-party beneficiary
- D Incorporation by Reference
- (1) Preliminary notes on third-party arbitration claims and incorporation by reference
- (2) Incorporation by reference and the requirement of specific intent to arbitrate
- (3) Concluding remarks on the incorporation-by-reference theory
- E Third-Party Claims Pursuant to Principles of Corporate Law
- F The ‘Grey Area’: Third-Party Situations that Fall Short of Privity and will not Normally Allow for Third- Party Claims
- 3 Further Legal Bases for Third-Party Claims: Terms in Arbitration Clauses, and Arbitration Rules and Laws
- Preliminary Material
- 3.01
- 3.02
- 3.03
- A Arbitration Agreements Allowing for Third-Party Claims
- (1) Third-party claims based on express or implied terms in an arbitration clause
- Several parties in a single contract containing an arbitration clause
- Several parties in several but interrelated contracts
- Several identical or compatible arbitration clauses—several incompatible arbitration clauses
- Several arbitration clauses that expressly allow for joinder and third-party claims: the principle of effective interpretation
- (2) Name-borrowing
- (3) Claiming through or under an arbitration clause
- (1) Third-party claims based on express or implied terms in an arbitration clause
- B Third-Party Claims Based on Institutional Rules and Arbitration Laws
- 3.53
- 3.54
- (1) Institutional rules
- International Chamber of Commerce (ICC) Arbitration Rules
- London Court of International Arbitration (LCIA) Arbitration Rules
- Vienna Rules
- UNCITRAL Arbitration Rules
- Swiss Rules
- Belgian Centre for Mediation and Arbitration (‘CEPINA’)
- American Arbitration Association/International Centre for Dispute Resolution
- Other institutional rules
- (2) National Arbitration Laws
- (3) Concluding Remarks on Institutional Rules and Arbitration Laws
- Part II Legal Bases for Third-Party Claims II: Implied Consent and Non-Signatory Theories
- Preliminary Material
- 4 The Doctrine of Arbitral Estoppel
- Preliminary Material
- 4.01
- 4.02
- A Overview of the Doctrine
- B The Two Alternative Versions of the Doctrine of Arbitral Estoppel
- (1) The equitable version of arbitral estoppel
- (2) The intertwined version of arbitral estoppel
- C Does Arbitral Estoppel Depart from the Consensual Origins of Arbitration?
- D Concluding Observations on the Arbitral Estoppel
- 5 The Doctrine of Group of Companies
- Preliminary Material
- 5.01
- 5.02
- 5.03
- A Overview of the Doctrine
- B Legal Basis of the Doctrine
- C Conditions for the Application of the Doctrine
- D Applicable Law
- E The Theories of Alter Ego, Lifting the Corporate Veil, and Group of Companies: Similarities and Distinctions
- 6 Critique on the ‘Non-Signatory Theories’ and the Contractual Approach to Third Parties
- Preliminary Material
- 6.01
- 6.02
- A Interrelatedness of the Theories Concerning Non-signatory Parties
- B Positive Contribution of the Non-signatory Theories
- C Conceptual Limitations of the Non-signatory Theories
- 6.14
- 6.15
- 6.16
- 6.17
- 6.18
- (1) It is questionable whether fact patterns are safe evidence of consent to arbitrate
- (2) Fact patterns may compromise the requirement of consent to arbitrate
- (3) Consent of the signatory party to arbitrate with the non-signatory in particular
- (4) Non-signatory theories and the ‘writing requirement’
- D Conclusions on the Non-signatory Theories and the Contractual Approach
- Part III A Jurisdictional Approach to the Discussion on Arbitration and Third Parties
- Preliminary Material
- 7 Why and under What Conditions Tribunals Can Assume Jurisdiction Over a Third-Party Claim
- Preliminary Material
- 7.01
- 7.02
- 7.03
- 7.04
- 7.05
- 7.06
- A Disputes before a Tribunal may Affect the Jurisdictional Position of Third Parties
- B Tribunals may Assume Jurisdiction over Third-Party Claims that are Inseparable from the Main Dispute in Arbitration Proceedings
- 7.19
- 7.20
- 7.21
- 7.22
- 7.23
- 7.24
- (1) First, third-party claims may become inseparable from the main dispute in arbitration proceedings due to contractual arrangements involving parties and third parties
- (2) Second, third-party claims may become inseparable from the main dispute in arbitration proceedings due to conduct of a third party
- C Rectifying the Artificial Discrepancy between Commercial Reality and the Scope of Arbitration Proceedings
- D Summing up the Jurisdictional Approach
- E ‘Third-Party’ Claims Put Forward by A Party in Arbitration: The Peterson Farms scenario
- F Review of Third-Party Case Law Focusing on the Dispute and its Repercussions for Third Parties
- 8 When a Tribunal Should Assume Jurisdiction Over a Third-Party Claim and Other Select Issues Related to the Jurisdictional Approach
- Part IV Arbitral Awards and Third Parties
- Preliminary Material
- 9 The Legal Effects of Arbitral Awards
- 10 The Suggested Third-Party Effect of Arbitral Awards
- Preliminary Material
- 10.01
- 10.02
- A Content and Characteristics of the Suggested Third-Party Effect of Arbitral Awards
- B Examples of Third-Party Effect of Arbitral Awards in Case Law
- C Distinction between Third-Party Effect and Res Judicata
- D Relevant Factors and Circumstances for the Application of the Third-Party Effect
- 10.44
- (1) First, whether there is a significant legal and factual overlap between the two consecutive sets of proceedings between different parties
- (2) Second, whether the third party has been invited to join the first arbitral proceedings
- (3) Third, whether there is fraud or collusion between the parties in the first award
- E Parties Able to Rely on a Previous Arbitral Award
- 11 Select Issues on the Effect of Arbitral Awards
- Conclusion to Part IV
- Preliminary Material
- 12 Summary of Findings
- Preliminary Material
- 12.01
- 12.02
- A Arbitration Agreement and Third Parties
- 12.03
- (1) First, traditional theories of contract and corporate law (Chapter 2)
- 12.04
- (a) Assignment and other forms of transfer, including bills of lading, subrogation, merger and transfer of debt (Section A)
- (b) Representation: agency and apparent authority (Section B)
- (c) Third-party beneficiary (Section C)
- (d) Incorporation by reference (Section D)
- (e) Third-party claims pursuant to principles of corporate law (Section E)
- (f) The ‘grey area’: third party situations that fall short of privity and will not normally allow for a third-party claim (Section F)
- (2) Second, third-party claims based on express or implied terms in arbitration caluses (Chapter 3, Section A)
- (3) Third, third-party claims based on institutional rules and arbitration laws (Section B)
- (4) Fourth, third-party claims based on implied consent and non-signatory theories (Part II).
- (5) Fifth, the ‘jurisdictional basis’ for the introduction of third-party claims as alternative to non-signatory theories (Part III)
- B Arbitration Awards and Third Parties
- 1 Introduction: Setting the Framework of the Discussion
- Further Material
