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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
"Legal' arrangements are generalized for an entire class; 'equitable' arrangements are particularized for a specific case in order to remedy a grievance there without changing the general legal arrangement." W.M. Reisman, Law in Brief Encounters (1999) p. 164.
1. Consent?
a. Doubt
'There'll be the breaking of the ancient Western code […]'. Leonard Cohen's cynical prophecy in 'The Future' is being fulfilled today in the field of arbitration with regard to the foundational principle of consent to arbitrate. Only a stranger to the field could think that consent is no longer the main criterion of jurisdiction. However, with pervasive practices of extension based on criteria of jurisdiction that seem to either minimize or even disregard consent, one is legitimately entitled to question whether arbitral practice has developed limits on the once exclusive rule of consent as the basis for compelling non-signatories or for compelling signatories beyond their consent.
In recent years, studies of problems of jurisdiction and of the topic of non-signatories in particular focused on the role of consent. Reflections on the 'dimensions of consent'1 and the 'quest for consent'2 evidence mounting doubt that consent remains the undisputed and sole criteria by reference to which non-signatories may be compelled to arbitrate. Other worthwhile [Page71:] inquiries into how to '[do] justice without destroying consent'3 in assessing jurisdiction vis-à-vis non-signatories are based on the fundamentally correct premise that, not infrequently, the requirement of consent may conflict with considerations of justice (or jurisdictional efficiency) in the specific case and hence may have to be undermined or sacrificed if justice is to be done.
b. Beyond doubt
Doubt is justified. arbitration's ancient code has been broken. Case law reveals that, not infrequently, the search for the parties' intentions is neither the sole purpose nor the main criteria of the exercise of assessing jurisdiction. When consent is searched for, the specific context of the jurisdictional inquiry (the existence of an economic group and the participation of non-signatories in the contract containing the arbitration clause) exercises a distorting effect, sometimes to the point of giving contextual elements a role beyond merely ascertaining consent. They contribute directly to the decision to extend or not to extend. a systematic application of arbitration law (the requirement of consent) is also limited by the concurrent application of other branches of law, such as contract law or the law of corporate entities. Finally, developed practices of objective extension take place independently from any inquiry into consent, even if one could possibly be presumed from the facts.
A number of commentators have provided evidence of this growing reality of arbitral life and have called it many names: marginalization of consent, 'forçage de consentement', 4 'manufacturing consent'5 and the 'decline of consent'. 6 a declining requirement of consent has been identified in rulings on the extension to non-signatories in groups of companies, the context where it probably all started. Studies of the issue of extension in this specific context divide the grounds of extension into 'grounds linked to consent' and 'grounds unrelated to consent'. 7 However, the decline of consent seems to be a broader phenomenon of modern arbitration. It has been identified in the context of groups of contracts, 8 investment arbitration 9 and public international adjudication. 10
c. Importance of the inquiry into limits of consent
Enquiry into the limits of consent, albeit inconsistent with prevailing dogma, is of crucial conceptual and practical importance. Since consent is the cornerstone of the notion and the regulation of arbitration, a fading requirement of consent, if proved a reality, would send out shockwaves. It would defy conventional dogma, a ubiquitous norm of national laws and the traditional concept of arbitration as justice by consent. It would also defy [Page72:] the thinking habits of people involved in the business of arbitration for whom arbitration is consensual by nature or can only be 'a creature of contract'. 11
Fundamentally, the assessment or control of jurisdiction beyond the ambits of consent dramatically alters the nature of the jurisdictional exercise and induces significant complexity in the tasks of arbitrators and courts. Whether the jurisdictional finding (to extend or not to extend) is made by reference to consent or transcends consent affects the methodology of applicable law and the contours of the duties of the arbitrator, in particular the extent of his or her compliance with the basic duties to observe due process12 and to render a reasoned and enforceable award.
A decline in the role of consent also challenges the ongoing relevance of international arbitration standards and distorts the operation of fundamental principles of arbitration law (such as separability). A court that lets stand or enforces an award that entitles or compels a non-signatory to arbitrate, absent its consent, necessarily goes beyond the minimum standards of the New York ("NY") Convention and ignores the basic requirements of national arbitration laws, whether or not they are based on the UNCITRaL Model Law. 13 This raises important questions regarding how, on the level of technique, tribunals and courts overcome basic hurdles of a normative universe protective of consent.
Additionally, third-party issues in groups of companies touch upon general questions that go beyond arbitration (or consent) theory, for instance whether arbitration agreements should be treated as ordinary contracts. If they are, the application of arbitration law, built on the requirement of autonomous consent, may be set aside in favour of the application of contract law premised on the absence of such autonomy. The consequence, simple yet dramatic, is that a search for separate arbitral consent is simply excluded.
Finally, the implications of such question as whether and to what extent parties may be compelled to arbitrate beyond consent extend beyond arbitration and exercise a significant distorting effect on the operation of other branches of law, such as the law of corporate groups. Limits on consent involve limits on the principle of the independence of legal entities. The risk that overly expansive approaches to jurisdiction may place excessive burdens on corporate law is thus real and has been noted. 14 Such approaches could reduce the effectiveness of corporate forms in terms of shielding from liability or jurisdiction and, in a group context, could even undermine the notion of corporate groups. 15
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d. Approach
A detailed study of the grounds and principles for extending arbitral jurisdiction to non-signatories in comparative case law is neither needed nor possible, due to constraints of space. Such analysis has been ably conducted elsewhere. 16 In addition, while few general trends can be discerned in case law (for example, the application of national contract principles to arbitration agreements or the importance of involvement in performance), the field, more than ever before, is in dire need of reflections of a general nature. Case law is in a state of flux, and uncertainty is a main element of the décor. Solutions are elaborated outside the baseline of the NY Convention and materialize in significant divergences among national laws in dealing with similar problems. Uncertainty and lack of uniformity are exacerbated by the fact that jurisdictional assessment is invariably fact-intensive, with the inevitable result that diametrically opposite solutions (to extend or not to extend) may be reached in fact settings that differ only on points of detail.
In a spirit of back-to-basics, 17 these reflections would naturally centre on arbitration's essentiala: consent. In this article, which builds on broader analysis of contemporary jurisdiction practices through the prism of consent,18 I explore and attempt to identify with more certainty this evasive 'somewhere beyond consent' that most people know exists, but which is foggy, unfamiliar and perilous.
As a preliminary caveat, I do not address the question of whether a practical difference exists between extending the obligation as opposed to the right to arbitrate. The question is addressed elsewhere in this dossier. In terms of the conceptual analysis of consent, this article sees no a priori difference between compelling a non-consenting party to arbitrate and compelling a consenting party to arbitrate beyond its initial consent (with claimant(s) that it did not consent to arbitrate with). In both cases, jurisdiction is exercised beyond - and hence without the support of - the consent of those submitting.
e. Gradation of the role of consent in jurisdictional assessment
Analysis of case law reveals the existence of not one, but a multitude of approaches to jurisdiction.
At opposite ends of the spectrum, one finds cases where consent is the exclusive basis of jurisdiction and cases where con sent is simply excluded. a spectrum of degrees of consent ensues. Consent is interpreted broadly, undermined, presumed, indifferent and sometimes even marginalized to a vanishing point. To remain methodological, it is possible to identify four patterns of ruling on jurisdiction in practice.
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1. Consent is the sole purpose of jurisdictional inquiry. It is found by ordinary contractual interpretation or a search for possible intent to arbitrate in the specific context of the dispute.
2. Consent is one of a number of elements of decision-making. The jurisdictional exercise is less focused on consent per se and consists of a global, factual assessment that looks at both subjective intentions and objective contexts that are deemed determinative.
3. Consent is indifferent. The decision to extent or not to extend is made by application of objective principles or doctrines that are indifferent, i.e. that apply without regard to whether consent to arbitrate exists. An active search for it is simply excluded, and the actual degree of consent involved (or imputed) to the non-signatory in the specific case depends on a large variety of factors.
4. Not only consent but also rigorous legal analysis is excluded in favour of a realist and pragmatic approach, which takes into account and sometimes relies primarily on conceptions of efficiency and equity.
This article will explore three limits on the rule of consent. These limits are: context, objective assessment and national contract law. Case law also contains evidence of a fourth potential limit on the process of ruling on jurisdiction. Considerations of equity constitute a broad practical limit on a rigorous search for consent in complex settings.
2. Consent in Context19
The first limit on consent derives from the very context of jurisdictional assessment in groups of companies. The inquiry relates to the extent to which the existence of such a group distorts, and possibly undermines, the process of searching for the consent of non-signatories involved in the transaction. This inquiry naturally takes as a starting point the doctrine that first advanced the proposition that the specific context of an economic group may have an effect on the assessment of jurisdiction.
a. The dosage of consent in the 'group of companies' doctrine
How much consent there is in the so-called group of companies doctrine is not a straightforward matter. Like a religious or spiritual text, the formulation of the doctrine in Dow20 and subsequent case law is sufficiently ambiguous [Page75:] to permit more than one interpretation of the true nature of the basis of jurisdiction. The understanding often depends on the eyes of the beholder: consensual, less consensual or objective.
Another source of difficulty is the constant dynamism of 'rules' and methods of decision-making in groups of companies. as we shall see, case law has constantly altered the relative importance of the various elements of the doctrine of groups of companies in a way that has affected the degree of consent in the composition of the basis of jurisdiction.
As a first approximation, the popular misconception that the doctrine is a domain of pure objectivity, where consent is simply excluded, should be dismissed as a selective or hasty reading.
The doctrine, at least in its original version formulated in Dow, is consensual en principe. The tribunal, in the famous yet overrated passage, clearly noted that jurisdiction vis-à-vis non-signatories is assessed 'in accordance with the mutual intention of all the parties to the proceedings'. 21 The existence of a 'single economic reality' and the involvement of non-signatory entities in the conclusion, performance or termination of the contract are both indices22 of - and not substitutes for - a finding of consent. Fouchard, Gaillard and Goldman explain: 'It is not so much the existence of a group that results in the various companies of the group being bound by the agreement signed by only one of them, but rather the fact that such was the true intention of the parties.' 23 Subsequent awards confirmed the consensual nature of jurisdiction. It is necessary to 'look for the actual and common intention of the parties at the time of the facts, or, at the very least, that of the non-signatory third party.' 24 pre-Dow awards also assessed jurisdiction based on consent, while referring to the economic context of a group, albeit using less sophisticated language. 25
Consensualism dominates jurisdictional assessment in groups of companies, whether or not the jurisdictional exercise is made under the conceptual sophistication of a doctrine of 'group of companies'. Studies by leading experts in the field of complex arbitrations, a number of whom contributed to this dossier, generally highlight the centrality of consent to decisions on jurisdiction involving non-signatories. Bernard Hanotiau, analyzing thirty years of case law, finds that '[i]n most cases, courts and arbitral tribunals still base their determination of the issue on the existence of a common intent of the parties and, therefore, on consent.' 26 In particular, in the context of groups [Page76:] of companies, '[e]xpress consent or conduct as an expression of implied consent - or a subtitle for consent - is still the basis on which most courts and arbitral tribunals reason to decide on the "extension".' 27
The non-essential nature of the existence of an economic group <em> en soi</em>
To say that the group of companies doctrine is consensual is effectively to say that the doctrine has no autonomous standing, i.e. that it does not really exist as a separate basis for compelling non-signatories to arbitrate. as we shall see, French courts and ICC tribunals seem to have understood this conceptual flaw in their subsequent application of the doctrine. The relevance of the existence of an economic group has been undermined in some cases, 28 before being dispensed with as a non-essential element of decision-making. Since consent is the key element, involvement in the contract containing the arbitration clause (or other elements of fact) may evidence consent, whether or not the facts relate to a group of companies.29
Indeed, the notion of a 'single economic reality' is a term of social engineering that could not serve as legally rigorous basis to establish jurisdiction. Groups of companies are structures that are defined under national corporate laws. This loose social construction, 30 taken into consideration by the Dow tribunal and other tribunals before and after it, does not operate a renvoi towards specific national corporate structures. In a legal context, it can only be taken to mean that economic realities are important contextual elements that need to be considered when ruling on jurisdiction, i.e. when assessing consent.
The basic idea could not be expressed any better than in Otto Sandrock's judgment of the group of companies doctrine:
"Where traditional rules of law developed through decades are available, an international arbitral tribunal should refrain therefore from experimenting with any social engineering of its own. For, normally, it is not the task of an international arbitral tribunal to invent new law, but just to apply the law as it already exists." 31
The predominantly contextual nature of searching for consent in groups of companies has been expressed in a variety of ways. The jurisdictional inquiry is highly fact-specific. 32 Similarly, 'the issue of consent to arbitration may take on a special dimension when one (or more) company(ies) to a complex international transaction is (are) member(s) of a group of companies, given [Page77:] the nature of the relationships which exist between companies of such a group […]'. 33 The essence - and consensus - is that the existence of a corporate group, like a prism, exercises some distorting effect on the issue of consent. However, this statement, albeit basically sound, is legally vague and does not say much about the true nature of the jurisdictional exercise.
One could think of two possible meanings for the proposition that, in a group of companies, consent is analyzed in that context. First, that the consent of non-signatory entities of the group (or that of the third party to arbitrate beyond its initial intent) remains the sole basis for extension, but that it may be derived from a number of objective indices, primarily the existence of a 'single economic reality' and/or the implication of non-signatory members of the group in the transaction.34 However, that is not to say much. Every search for implicit consent is contextual by nature. 35 As proposed earlier, in a large number of awards and court decisions, searching for consent consumes the jurisdictional exercise vis-à-vis non-signatories.
A second and more interesting interpretation for one who inquires into the limits of consent suggests that the contextual elements, such as the structure of the group, the degree of integration of different entities and the extent of cross-involvement in the economic operation, may play a role of a different nature. a tribunal or court may take these elements not merely as indication of consent but as self-standing elements that feed, in their own right, the decision to extend or not to extend, within a larger context of complication of the process of ruling on jurisdiction. This second pattern of assessment of jurisdiction, which downgrades consent from being the element to merely an element of decision-making, is identifiable in both the language and reasoning of arbitral awards. Noah Rubins explains:
"Ostensibly, this analysis [of the full panoply of facts in each given case] is an attempt to ascertain whether the parties to the contract and the non-signatory intended ex ante that the non-signatory be implicated in arbitral proceedings. [footnote omitted] However, some courts and tribunals applying the group of companies doctrine have sought to conform the arbitration agreement to the non-signatory's role in the facts surrounding a given contract's signature, performance and/or termination, even in the absence of direct evidence concerning the parties' ex ante expectations." <sup><a href="#footnote36">36</a></sup> [Emphasis added]
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In a number of ICC awards, the tribunal has enumerated, without order of priority, the elements that it took into consideration in ruling on jurisdiction. Consent is merely one of them, and not even the first one. The Tribunal in ICC case no. 9517 37 noted that:
" [T]he question whether persons not named in an agreement can take advantage of an arbitration clause incorporated therein is a matter which must be decided on a case-to-case basis, requiring a close analysis of the circumstances in which the agreement was made, the corporate and practical relationship existing on one side and known to those on the other side of the bargain, the actual or presumed intention of the parties as regards rights of non-signatories to participate in the arbitration agreement, and the extent to which and the circumstances under which non-signatories subsequently became involved in the performance of the agreement and in the dispute arising from it." 38
This suggests that the contextual elements characteristic of a group setting stand side-by-side with consent rather than merely helping to prove its existence as sole basis of jurisdiction. The dividing line is slim and hazy, and one is permitted to wonder whether the distinction is always clear, or even perceptible as relevant, in the minds of tribunals and courts. Nevertheless, the conceptual leap is fundamental. It makes the difference between a jurisdictional exercise limited to consensual analysis and one that transcends consent, and is fundamentally more sophisticated in terms of admission of decision-making by reference not to one, but to a multitude of criteria and factual elements. On the level of technique, the factual and legal analysis moves from being a single-minded exercise whose sole purpose is to find consent to a more complicated endeavour that is both more global in purpose39 and less legalistic in nature. 40
The fundamental conceptual implication is that consent moves from being the exclusive to the default basis of jurisdiction. non-signatories may be compelled to arbitrate, absent ex ante consent, if sufficient support for this outcome is found in the facts. Blessing suggests that the context that would justify extension absent consent must be compelling:
"All individual elements of a case will have to be weighted very carefully, respecting the basic principle of the privity of contract and the clear notion that legal entities are distinct from each other and that, therefore, such fundamental principles cannot easily be removed by an arbitral tribunal unless very specific circumstances demand such a removal."41
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In light of the previous analysis, I am inclined to classify the Dow award in this second category (where consent is not the exclusive factor of decision making). On second look, the doctrine does not seem to be merely consensual analysis given a sexy name. While the parties' intention is 'the key issue', 42 as pointed out by Fouchard, Gaillard and Goldman, a measure of objectivity is an integral part of the principle of extension formulated in the award. Moreover, the source of objectivity is not the existence of an economic group en soi. A different reading of Dow is suggested.
One aspect of the award has passed largely unnoticed. Specifically, the théorie de l'apparence is not only implicit in the rationale of the award (the reference to the existence of a single economic group that acts as such vis-à-vis third parties) but also explicit in its language. The arbitration agreement signed by members of a corporate group should bind other companies of the group 'which by virtue of their role in the conclusion, performance, or termination of the contracts containing said clauses, and in accordance with the mutual intention of all parties to the proceedings, appear to have been veritable parties to these contracts […]'. 43 One is tempted to think that the fact that the non-signatory entities appeared to have been parties is the true basis for including them in the arbitral circle, rather than the systematic analysis of their consent. 44 All the other elements that the Dow tribunal took into account, namely the specific context of a group, the parties' intentions and the involvement in the transaction, are indices that contributed to creating such an appearance.
'Common' or 'mutual intention': Does it exist?
Pursuit of the linguistic exercise would provide further support for this conclusion. Dow and a number of awards ruling under the name of the group of companies doctrine refer to 'the mutual intention of all parties to the proceedings [including that of the non-signatory]'. However, there is no such thing as mutual intent as a basis of jurisdiction. Consent is the ultimate expression of individualism in the realm of legal institutions and can only be assessed per persona. The expression either reveals a lack of attention to the use of language 45 or suggests that this mutual intention plays a role other than establishing a consensual basis of jurisdiction. The expression could only mean that individual consents 'concur' or converge towards creating a certain understanding (en l'occurence, that non-signatories should nevertheless be treated as parties) or perhaps appearance that they are acting as such. This common intent or understanding is irrelevant to whether the non-signatory [Page80:] defendant has consented, or whether the third-party defendant has consented beyond its initial consent, because only their consent - and no one else's - matters for this purpose. nevertheless, the use of the expression suggests that the intention of signatories matters in binding the non-signatory, and vice
versa. It would matter only if we admit that concepts such as legitimate expectations or protection of appearances are involved. The 'mutual intention' makes sense only if read together with its objective implication, expressed in Dow, namely that the non-signatories 'appear to have been veritable parties to these contracts'. 46 The mutual intention to appear as parties, to the extent that it actually contributes to creating this appearance, may serve as the basis for legitimate reliance or belief that the group is acting as a block and is making its resources available as such. This appearance justifies the third party's right, as well as its obligation, to arbitrate.
Despite its central role in Dow, reliance on apparent positions or the principe de l'apparence is undervalued as a basis of extension. The principle could provide a reliable and well-recognized basis to entitle a third party to bring a claim against non-signatory entities of a group or to entitle non-signatories to bring a claim against the third party that contracted with the group en connaissance de cause (the Dow scenario).
b. Global assessment of jurisdiction
In final analysis, in a group of companies context, one finds subjectivity in objectivity (consent derived from objective contextual elements) and objectivity in subjectivity (objective elements that are called consensual). The assessment of jurisdiction, whether conducted under the name of a group of companies doctrine or otherwise, is neither entirely consensual nor entirely objective. The Dow decision and those that followed in its footsteps relied on a number of elements, including the interpretation of the contracts, the search for the implicit intent of non-signatories, the existence of a group, the involvement of non-signatories in the transaction and the appearance that all these elements may have created in the minds of third parties. The exact role that consent played in the basis of jurisdiction, compared to these other elements, is difficult to ascertain and would require the reading of minds.
It is suggested that, once tribunals and courts have stopped assessing jurisdiction solely by reference to consent, they are less inclined to assign a determinative role to a particular contextual element. Instead, they proceed with a global factual assessment of subjective intentions and objective context, [Page81:] which helps them to make up their mind with respect to the decision whether or not to extend. This necessarily involves a significant measure of equitable decision-making.
Even when the jurisdictional exercise is explicitly self-described as purely consensual, one is entitled to wonder whether, in the intellectual process of decision-making, a difference beyond semantics really exists between looking for indices of consent in the context of the dispute and looking for both intent and context in a global fashion. In groups of companies, the search for good old consent undergoes a significant distortion imposed by its context, like light passing near a black hole. Describing the jurisdictional exercise as a simple and single-minded search for evidence of the existence of consent fails to reflect the current complexity of the task of arbitrators ruling on such matters.
c. Changing roles of contextual elements (and uncertainty)
Normatively, the evolution of the group of companies doctrine is one of constant metamorphosis. If a group of companies doctrine exists, there is not one, but many. The respective roles of different elements of the basis of jurisdiction have varied significantly in case law, giving rise to many judicial restatements of the doctrine. In the immediate aftermath of Dow, French courts emphasized the existence of a group as an element that must be taken into account. 47 Then, a few years after it had confirmed the Dow award, the Paris Court of Appeal dropped any reference to the initial birth context of the doctrine. Focus shifted to involvement in performance regardless of the existence of a 'réalité économique unique', which remained more as a façade rather than as a condition of extension. In turn, the role of involvement in the contract containing the arbitration clause has itself varied significantly in relation to consent. Depending on the case, it was considered: the main element from which consent was derived; the main element upon which extension was decided, regardless of its implication as to the existence of consent; 48 or, on the contrary, as a simple indice of consent. 49 at times, the relevance of the economic group resurfaced.
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In a number of cases, the existence of a group limited the requirement of consent not by reducing its exclusive role as basis of jurisdiction but by giving rise to a presumption that it existed in the specific case. 'The analysis of arbitral awards also leads to the emergence of a rebuttable presumption that a parent company binds its subsidiaries.' 50 ICC case no. 6000 of 1988 is a clear example. The tribunal held that:
"[I]t is largely admitted that by virtue of a usage of the international trade, where a contract, including an arbitration clause, is signed by a company which is a party to a group of companies, the other company or companies of the group which are involved in the execution, the performance and/or the termination of the contract are bound by the arbitration clause, provided the common will of the parties does not exclude such an extension." <sup><a href="#footnote51">51</a></sup> [Emphasis added]
The presumption in favour of the extension of the obligation to arbitrate undertaken by a parent to its subsidiaries is authoritatively cited as a principle of the lex mercatoria. 52 It is noteworthy that the presumption arises from the combined effect of the existence of a corporate group and the involvement in the contract containing the arbitration clause, and not from the sole effect of the existence of a group. A simple presumption of consent does not alter in essence the consensual nature of jurisdiction. Nevertheless, its effect is dramatic. It reverses the basic structure of jurisdiction in favour of private justice. Extension of the arbitration agreement does not take place if consent is found; it takes place unless excluded by agreement of the parties. Arbitration prevails by default.
It is perhaps this uncertainty concerning the respective roles of consent versus context that led subsequent French case law to bring objective elements such as involvement in performance to the surface of the basis of jurisdiction as a substitute for consent (section 3). On the other hand, comparative law shows that appropriate solutions to the third-party problem in the context of groups of companies may be reached by application of national contract law principles. These principles do not necessarily exclude a measure of consent or provide a more solid basis for disregarding it (section 4).
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3. Objective assessment of jurisdiction
a. Involvement in performance per se and the notion of knowledge under french law
While the majority of ICC tribunals ruling under the name of the group of companies doctrine continued to reason in consensual terms, or on the basis of a multi-layered analysis of consent and context, French courts ventured into more objective grounds. In a number of cases, involvement in the negotiation, performance or termination of the contract containing the arbitration clause was considered not as an indice of consent but per se as a self-standing basis for jurisdiction, without examining whether it constituted evidence of consent or even whether or not consent existed otherwise. On a number of occasions, 53 the Paris Court of Appeal held that:
"[T]he arbitration clause inserted in an international contract has self-standing validity and effectiveness which require that its application be extended to parties that are directly implicated in the performance of the contract and in the disputes that may arise therefrom as long as their respective situations and activities give rise to the presumption that they were aware of the existence and the scope of the arbitration clause, even though they were not signatories of the contract which stipulates it."
In these different cases, rendered in a group context, the court analyzed the non-signatory's situation and activity and identified elements of fact that supported the conclusion that the non-signatory probably knew of the existence of the arbitration clause. Of course, to the extent that it gives rise to the presumption that the non-signatory knew of the existence of the clause, substantial involvement in the performance of the contract may be evidence of consent to arbitrate. However, the various decisions seem to have been satisfied with a relatively low threshold for finding knowledge. For instance, in Korsnas, the court relied on the non-signatory's character as a 'subsidiary' and its position as the 'bureau parisien' in charge of implementing the contract. 54
Fundamentally, what the Cour d'appel formulated in these cases is a modified principle of extension that involves no active verification of consent. a search for consent is simply dismissed from the court's démarche. Whether it exists or not seems to be an issue of less relevance. In Poudret's analysis of this line [Page84:] of case law, he underlines the shift in focus from the analysis of the relations between signatories and non-signatories, which could unveil an intention to be bound, to an emphasis on the object of the contract and a perception of the arbitration clause as a 'technical modality' of enforcement of the obligation arising under it. 55 A notion of involvement in performance per se replaces a search for consent. The arbitration clause simply extends to non-signatories 'directly implicated in the performance of the contract'.56
Poudret concludes: '[L]e caractère volontaire de l'arbitrage en sort nettement amoindri.' 57 From this finding Hanotiau derives the normative corollary that involvement and knowledge 'have a standing of their own, as a substitute for consent'. 58
Such a sweeping departure from the consent paradigm is expected to send shockwaves through the broader regulation of arbitration. Indeed, it does. The exclusion of consent from the jurisdictional inquiry in scenarios of involvement in performance collides with the principle of autonomy of the arbitration clause. Fundamentally, separability dictates that parties need to emit a specific consent to arbitrate that is separate from their consent to the substantive contract. This fiction is vital for purposes of initial validity, but it is inconsistent with a determination of the scope of the arbitration clause by reference to the conditions surrounding the performance of the main contract. The jurisdictional exercise consists in retracing the scope ratione personae of the arbitration agreement in order to align it with the substantive rapport. This technique of determination ratione materiae of the scope ratione personae of the arbitration agreement is clear in the Westland award.
"The question whether the four states are bound by the arbitration clause concluded by the AOI in its own name […] is exactly the same as the substantive law question whether the four states are bound in general by the obligations contracted by the AOI." 59
One practical consequence of this entanglement of jurisdiction and merits is that tribunals will often find it necessary to join the question of jurisdiction to the final decision on the merits. although it might be advisable to request an interim award on jurisdiction in cases of uncertain assertion of jurisdiction vis-à-vis non-signatories, granting such a request would not necessarily be possible.
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In a critical assessment, the substitution of consent intrigues and may be unwarranted in a factual context where a first attempt to find consent is likely to yield. In this line of cases, consent is not the first basis of jurisdiction, absent a finding of which the courts proceed to more objective grounds. French courts relieved themselves of the burden of finding consent, or even of signalling its existence, even if consent may be reasonably presumed from the facts. While a language of consent would be consistent with the droit commun and would enhance the chances of enforcement abroad, dropping such language is probably intended to avoid a perilous - and perhaps artificial - fact-intensive search for subjective intentions. In a word, the purpose, as a matter of judicial policy, may be to simplify jurisdictional assessment and control in scenarios where consent may in any case be reasonably presumed to exist from the jurisdictional context.
The application of national contract law to arbitration agreements is an alternative method for injecting simplicity into the 'rules' governing jurisdiction vis-à-vis non-signatories. It nevertheless constitutes a third - and significant - limit on the systematic search for arbitral consent.
4. National contract law
It is increasingly accepted that general principles of contract law apply mutatis mutandis to arbitration agreements. 60 Their application may result not only in the creation of substantive rights or obligations but also in the transmission or extension of the right or obligation to arbitrate to third parties. Even opponents of the lex mercatoria (and hence of the group of companies doctrine) feel comfortable admitting that exceptions to the principle of privity may be derived from 'the national proper laws of contract'. 61 This involves admission of the proposition that, if the applicable law dictates that consent to arbitrate need not be required by application of some principle of contract (or other) law, then it shall be set aside in the specific case.
a. US law
In the united States, the third-party problem in arbitration is solved, as a general matter, by application of 'ordinary principles of contract law'. 62 This is conceptually based on the notion that '[a]rbitration agreements are to be treated like other contracts, subject to the policy favoring arbitration'. 63[Page86:] principles of contract law that would usually apply in a group of companies context include agency, third-party beneficiary, universal succession, estoppel, equitable estoppel, alter ego and veil piercing. principles of good faith and fraud may also come to apply.
b. National contract principles in continental case law
The application of national contract law to extension in group settings does not characterize French solutions - quite the opposite. French contract law is normally hostile to admit exceptions to privity. To be able to formulate their arsenal of règles matérielles of extension that are less reliant on consent, including those that were extrapolated from the group of companies doctrine, French courts needed to exclude the application of the droit commun. Similarly, Swiss and German courts, unlike their US counterparts, generally admit piercing of the corporate veil only in limited circumstances that amount to fraud or abuse of rights. 64
Nevertheless, the application of national contract law seems to be regaining interest on the continent. In particular, French courts have compelled non-signatories to arbitrate based on the principe de l'apparence, 65 the theory of contrat de fait66 and fraud. 67
c. Consent indifferent
Contrary to first impressions, the application of national contract law is ambivalent in its effect on consent. Typically, it would result in a determination of jurisdiction by interpretation of the parties' intentions. However, a significant measure of objectivity is built into most of these contract principles, which brings about a less consensual - or sometimes even non-consensual - obligation to arbitrate. For example, the principles of veil piercing and alter ego usually aim to redress an unjust situation or give effect to apparent positions. a finding of implied consent is neither necessary nor, indeed, sufficient to operate extension. In addition, equitable considerations are not only latent in the rationale of many of these principles but also seem to underlie the decision-making process of courts. 'This contractual approach seems to focus as much on equitable considerations after the conclusion of the contract as on discerning the intent of the parties ex ante.' 68
The fundamental point here is that extension by application of national contract law is a domain where the jurisdictional exercise is largely indifferent to consent. The applicable principle applies in its own right when its conditions are met. Systematic consensual analysis is not undertaken. This does not mean that consent is simply flushed out of the basis of jurisdiction.
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The application of third-party principles results in a basis of jurisdiction embodying a 'spectrum' of degrees of consent, 69 depending on the extent of objectivity built into the principle of extension. The actual degree of ex ante consent associated with the application of a particular third-party principle would also depend on contextual factors, such as the factual and procedural setting.70 Regardless of the actual degree of assent one might impute to the non-signatory in a given case, consent is simply not required. It is not part of the intellectual process of decision making, except in so far as it may indicate the existence of an objective element necessary for the application of the principle of contract law in question, such as characterizing a contradictory behaviour for the purpose of estoppel.
Finally, the methods of decision-making in certain jurisdictions may obscure the degree of consent involved in the application of contract principles:
"[…] One also finds instances of sweeping and fact-intensive application of such principles as equitable estoppel and piercing the corporate veil, that are beyond the normal reach of those doctrines. Indeed, sometimes even where consent is insufficiently manifested to permit 'extension' of the agreement to bind the non-signatory, procedural mechanisms are employed to achieve the same result." 71 The initial limit on consent - context - brings out another one: equity.
5. Equity
a. '[T]o remedy a grievance there without changing the general legal arrangement'
Considerations of equity and jurisdictional efficiency are more likely to arise in complicated factual settings, such as economic groups and the involvement of entities in the performance of contracts that they did not sign, than in simple settings for which arbitration law was originally designed. Arbitration law is concerned primarily with guaranteeing the ab initio validity of arbitration agreements. It is less concerned with their ongoing efficacy in cases where the circle of parties involved in the underlying transaction is altered.
In these cases, the application of arbitration law may deprive the arbitration agreement of effect or yield unjust outcomes. The role of 'equitable' arrangements, as explained by professor Michael Reisman in the quote cited at the beginning of this article, would be 'to remedy a grievance there without changing the general legal arrangement'.
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b. Ruling on jurisdiction ex aequo et bono
Analysis of case law suggests that, not infrequently, arbitrators and courts take equity and efficiency considerations into account when ruling on jurisdiction in complex settings. arbitrators do not always restrict their mission to the application of a set of legal rules to conclude whether or not extension should take place. They also rule by reference to whether extension is 'appropriate', 'fair' or even 'wise' in the specific case. This more realist process of decisionmaking is not mere speculation. It has been identified by a number of imminent commentators. 'Concerns of equity often underlie the reasoning of courts and, even more, of arbitral tribunals.' 72 Furthermore, these considerations seem to compete in the minds of arbitrators and courts with well-established principles of arbitration law - the writing, consent and privity requirements - and are often given prevalence over a formalist or even purely consensual approach to jurisdiction. '[T]he equities that appear from the underlying facts are likely to be far more important to the outcome than which theory of law is advanced.' 73
Prevailing patterns of decision making also confirm the emerging importance of equity and the changing nature of ruling on jurisdiction in complex settings. Indeed, where arbitrators proceed with a global assessment of jurisdiction, which is a frequent practice in groups of companies due to the significant weight of contextual elements, the process of decision making, based on the convergence of a multitude of elements, would necessarily involve a measure of equitable thinking that is hard to ignore. The purely legal no longer occupies the forefront of jurisdictional assessment. Interestingly, when courts and tribunals exclude the normal application of arbitration law and uphold jurisdiction notwithstanding consent, in order to accommodate economic realities or in pursuit of considerations that are deemed more just, they do so without spending much effort to justify, on the level of legal technique, the exclusion of consent. Classic analysis is simply excluded, spontaneously and comme si de rien n'etait. Furthermore, when the 'equities' of the case are taken into account by courts and tribunals, they are not mere dicta. They can also be made part of the determinative reasons of the award.
In the united States, consensual analysis is predominant. However, one still finds references to considerations of practicality and efficiency of arbitration agreements. 74 The arbitration agreement 'would be of little value if it did not extend to [the non-signatory].' 75 In some cases, practical considerations are invoked in conjunction with the federal policy in favour of arbitration in order to justify extension. 'If the parent corporation was forced to try the case, the arbitration proceedings would be rendered meaningless [Page89:] and the federal policy in favor of arbitration effectively thwarted. 76 The Fifth Circuit has even applied veil-piercing and alter ego theories 'in the name of equity'. 77 Nevertheless, US courts seem to be less responsive to equitable arguments as a basis for extending arbitral jurisdiction in the absence of consent, when no general principles of contract or corporate law are applicable.
Equitable considerations also seem to play a role in jurisdictional settings involving non-signatory states. 78 Interestingly, the Westland tribunal noted: 'Finally, mention must be made of the practical reasons and considerations of equity which have motivated the arbitrators in this matter, quite apart from the legal ground.' 79
The pursuit of efficiency is more explicit in French case law on involvement in performance. In Sté V 2000 v. Sté project XJ 220 ITD et autre, 80 the Paris Court of Appeal referred explicitly to considerations of good administration of justice as part of the legal argument that justified the decision to extend jurisdiction to a non-signatory involved in the performance of the contract containing the arbitration clause. V 2000 (Jaguar) was entitled to arbitrate 'so that all legal and economic aspects of the dispute are brought before the arbitrator.' 81
c. Realism in decision making as a limit on the rigorous search for consent
This post-modernist methodology, which favours arbitration beyond international standards and internalizes justice into arbitration law, involves more than flushing out the search for consent: it involves marginalizing rigorous legal reasoning altogether in favour of decisions made in a more pragmatic and realist environment. Evidence of ex ante consent or ex post assumption of the obligation to arbitrate may be part of the equitable weighting of different elements. However, ruling on jurisdiction typically involves a setting where requiring consent would yield injustice and a decision on whether justice should prevail notwithstanding the absence of consent.
The extent to which equity would materialize in an actual decision to extend is also influenced by other practical considerations that would, or at least should, occupy the minds of tribunals. These include how much support there is in the facts and the law for the arbitrators' equitable conclusions and, hence, the extent to which they would need to depart from their duty to
render an enforceable award in order to implement extension.
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6. Relevance of the inquiry into the limits of Consent in emerging jurisdictions
It has been noted that the practice of extending arbitration agreements to non-parties 'appears to have little impact on the strict formal approach maintained in many civil jurisdictions'. 82 It is also true that, with the exception of scenarios involving the application of contract law principles, such as assignment, formalist approaches remain the rule in jurisdictional assessment in the developing world. Thus, a priori, there is little room to discuss extension in a group setting, whether by application of the group of companies doctrine or even by consensual analysis. In other words, in most cases, the debate on extension to non-signatories is situated in a different sphere: between formalism and consent rather than between consent and the criteria that minimize consent. The main question is a question de principe: Is extension possible in the first place or is it excluded by mandatory form requirements under national laws? The answer is usually negative.
On occasion, emerging jurisdictions show signs of significant openness, by reason of regulatory competition or the process of global pollination built in a universal practice of arbitration. The situation may be changing, and the question of the limits of consent is likely to arise in broader terms in the future. The question will even arise in more fateful terms for emerging jurisdictions that recently adopted international standards protecting consent and that have a basic right to follow a gradual path of arbitral development. In a decision of 22 June 2004, 83 the Court of Cassation of Egypt dealt at length with the question of the outer limits of consent as a basis to compel non-signatories in a group of companies. The court confirmed the annulment of an award rendered in ad hoc proceedings administered by the Cairo Regional Centre (award no. 212 of 2001), which had compelled non-signatories based solely on the existence of an economic group.
However, while the court dismissed the mere existence of a group as a sufficient basis for extension, it did not exclude this possibility and in fact omitted any reference to the writing requirement, which is mandatory under UNCITRAL-inspired Egyptian arbitration law. The court formulated a principle of extension that is not even entirely consensual:
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"[A]rbitration agreements are of relative effect, and may not be invoked except against the parties who have consented thereto. Therefore, the mere fact that one of the parties to the arbitration proceedings is a company member of a corporate group, in which a parent company holds in the capital of its member entities, is not by itself sufficient basis to hold the parent company bound by the contracts concluded by other companies of the group, and which may contain arbitration clauses; unless evidence is submitted that the parent company was involved in the performance of these contracts, or has caused by its conduct, confusion as to the identity of the member of the corporate group contracting with the third party, in such a way that it has become difficult to distinguish the wills of the companies involved." <sup><a href="#footnote84">84</a></sup> [Emphasis added]
The passage starts by reciting the basic canon of consent. However, the Court then goes on to formulate a composite basis of jurisdiction using a dual criterion: (1) involvement in performance (possibly as evidence of consent, if the requirement of involvement in performance is interpreted in conjunction with the earlier reference to consent); and (2) the confusion or false appearance such involvement or other conduct has created in the mind of the third party claimant. using language that refers to the parties' intentions less than the Dow award itself, the court not only excluded formalist criteria but also explored what may exist beyond consent: objective notions such as the creation of confusion, legitimate expectations and appearances, some of which are explicit in the court's reasoning.
7. Rationalizing the declining relevance of the requirement of Consent
a. Sophistication of jurisdictional assessment
To say that consent depends on the factual context and equitable calculus is a deceptively simple phrase. It connotes a dramatic sophistication of jurisdictional assessment vis-à-vis non-signatories and the corrosion of the simple and unitary rule of consent. In principle, arbitration law ignores the economic structure of different plaintiffs and defendants or the equities that may underlie the decision to extend arbitral jurisdiction to a non-signatory in the case concerned. It is premised on consent (and on formalism in most cases) as a per se and abstract rule. Its application induces a jurisdictional inquiry that is in most cases simple. This traditional simplicity has faded, and the jurisdictional exercise is sophisticated beyond consensual habits in a [Page92:] variety of ways. First, the rule of consent applies less in abstracto and more in context. Second, jurisdictional assessment is no longer limited to contractual interpretation and even less so to a yes/no question regarding whether 'writing' exists. Instead, a multitude of approaches are available, and a number of criteria and principles come into play, besides a simple search for consent. Third, ruling on jurisdiction is not even limited to pure legal analysis. A more practical methodology is noted in case law, based not only on the legal permissibility but also on the utility and fairness of extension beyond consent in the specific case.
The changing nature of decisions on jurisdiction may be understood as a fundamental challenge to two paradigms of arbitration law, namely legal rigour and the notion that the source of the right or obligation to arbitration is necessarily a contract.
b. From consent per se to a rule of reason
The rise of realism in decision-making methods suggests that the per se rule of consent has been replaced by a rule of reason, to borrow vocabulary akin to competition law. When ruling on extension, courts and tribunals reason less in terms of norms (consent and formalism) and more in term of effects of extension (or its absence) in the specific case. Extension may be ordered, notwithstanding the fact that consent has not been found or has not been searched for, in order to honour considerations that are deemed worthy of prevailing, in the specific case, over a simple, automated and abstract search for ex ante consent.
Indeed, it has been suggested that the decision to extend or not to extend is frequently made under a 'what if not' scenario. Hanotiau explains: 'It seems that at least in a great number of cases, a good test to decide whether an "extension" of the clause is appropriate is to determine whether the same solution would be justified if the situation were reversed.' 85 It has also been suggested that the intellectual process of ruling on jurisdiction in these cases involves some form of reverse reasoning. A decision on extension is taken, at least prima facie, based on considerations of equity and jurisdictional efficiency, with the decision then being confirmed by reference to applicable legal principles or simply being clothed in legal reasons a posteriori.
'One is occasionally tempted to wonder whether equity is not in some cases the paramount consideration and all the legal theories advanced to justify the final decision, ex post facto creation.' 86
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c. Diversification of the sources of the right or obligation to arbitrate
The term 'extension' is conceptually problematic, whether or not the jurisdictional inquiry vis-à-vis the non-signatory is based on consent. In the first case, it overstates the jurisdictional exercise, which merely attempts to identify the true parties to the arbitration agreement. 87 Where non-signatories are compelled to arbitrate notwithstanding the absence of their consent, the term 'extension' understates the nature of the jurisdictional assessment.
Describing what happens as merely extending an existing consensual arbitration conceals in the minds of tribunals and courts the fact that jurisdiction vis-à-vis non-parties often rests on an independent legal basis, itself more or less consensual.
The once exclusive rule of consent has given way to a number of principles and norms that coexist today and compete to govern jurisdiction. In comparative law, a non-signatory in a group context may be compelled or entitled to arbitrate based on one or more of the following grounds: consent (explicit or implicit, proven or presumed), national contract law principles (third-party beneficiary, agency, alter ego and veil piercing), general principles of law (estoppel, good faith, fraud or the principe de l'apparence), context specific judicial doctrines (such as the group of companies doctrine) which bear the distinctive mark of particular legal systems or are part of the lex mercatoria and, finally, involvement in performance (either per se or combined with the notion of knowledge of the existence of the arbitration agreement).
In many cases, the applicable principle would simply reveal that the non-signatory has either consented (for example, involvement in performance as evidence of consent) or should otherwise be considered a party to the arbitration agreement (for example, veil piercing). In other cases, the 'ground' of extension conceals or constitutes a self-standing source of the right or obligation to arbitrate that is distinct from consent. These emerging sources include objective notions such as involvement in performance (per se and not as evidence of consent). They also include a notion of justice lato sensu that is built into most general principles of law, such as estoppel or good faith, and is sometimes explicit in the reasons of awards.
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In addition, the factual context of a group not only matters but often also is outcome-determinative. It commands, at least in part, why a particular nonsignatory is entitled or compelled to arbitrate. That is to say, the facts constitute an integral part of the basis of jurisdiction vis-à-vis non-signatories. On the one hand, many of the principles or grounds of extension characteristic of group settings are highly fact-specific (such as veil piercing or involvement in performance). On the other hand, where tribunals base their decision to extend or not to extend on a global factual evaluation of subjective and objective elements, an amalgam of legal principles, intent to be bound, equitable notions and determinant elements of facts (such as specific conduct or appearances) form the basis of jurisdiction vis-à-vis the non-signatory entity.
The development of a multitude of norms and principles that govern jurisdiction in addition to consent also means that the sources of the right or obligation to arbitrate have diversified beyond contracts. Such a development may be rationalized by reference to the universal practice of arbitration. Without much audacity, one could suggest that, as a result of the banalization of arbitration agreements and their increasing treatment as ordinary contracts (including the loss of autonomy for purposes of assessing the scope of jurisdiction), the sources of the right or obligation to arbitrate may be falling back into the droit commun, specifically the théorie générale des obligations. For example, the source of the right or obligation to arbitrate may be, and often is, directly the law (national contract law or general principles of law) or trade usages (jurisdictional principles that are said to belong to the lex mercatoria, such as the obligation of subsidiaries to arbitrate with the parent entity).
The source of the obligation to arbitrate may also be some form of delict, lato sensu. a non-signatory may be compelled to arbitrate, or a signatory may be compelled to arbitrate with a stranger, if its conduct was inconsistent with the principle of good faith in the performance of obligations or amounted to fraud. In such cases, a finding of consent is neither part of the jurisdictional exercise nor even attempted by the tribunal. Consent and châtiment do not usually go hand in hand. ICC case no. 7245 offers an interesting example. 88 The tribunal considered that, by causing the dissolution of the signatory state entity, the non-signatory state - Libya en l'occurrence - must be deemed to have become a party to the arbitral proceedings. Extension seems to have taken place here as a measure of responsibility. In fact, the tribunal unanimously held the Libyan state liable for ending the existence of the party to the arbitration agreement.
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8. legalism REDUX
a. Complexity of the tasks of arbitrators and courts
The retreat of the per se rule of consent (or of its per se application), the rise of equity and of global assessment of jurisdiction, and the resulting general sophistication of jurisdiction may create the impression that arbitrators and courts, faced with questions of considerable complexity, rule on jurisdiction, as a matter of fact, ex aequo et bono. However, this more sophisticated and less-rigorous decision-making environment should not be taken as an excuse to authorize arbitrators to do as they please with respect to compelling non consenting parties. Similarly, the predominant context by reference to which the effect of the decision to extend or not to extend is assessed should not be a domain of pure fact-based inquiry, which gives arbitrators unlimited discretion. Even if empowered to act as amiables compositeurs, arbitrators are always bound to render a decision on jurisdiction justified in law. This is inherent in the nature of arbitration as a limited delegation of power. This tension between the decline in legal rigour and the necessity of a decision justified in law imbues the process of ruling on jurisdiction with unique complexity.
The uncertainty of applicable rules adds to the complexity of the task of arbitrators to render an award that is enforceable jurisdiction-wise and the task of courts to exercise control. because a multitude of approaches and criteria coexist, there is often not one 'right' answer but only 'safer', 'efficient', 'just' or above all 'wise'89 answers. In addition, national laws provide very divergent solutions to questions of extension, and applicable law methodology is often bypassed. Tribunals also often decide on the basis of rules that are different from those by reference to which courts exercise control, since courts usually apply their lex, even to supersede previous findings under the otherwise applicable law. Finally, national solutions are also volatile (for example, the frequent judicial restatements of the principle of extension in groups of companies under French law), and the rules of the game change during the game.
Devising approaches that are neither dismissive of consent nor indifferent to the complexities of the factual context or the equities of the case is a [Page96:] complicated matter. Solutions should be sought in a spirit of 'back to basics':
(1) effective control of consent and the arbitrators' duty to give reasons to jurisdictional findings; (2) revival of applicable law methodology; and (3) recourse to general principles of law.
b. General principles of law
Often, the departure from consensual analysis is made by application of some national law (of contract). When this is not the case, the presumably equitable decision-making process identified earlier usually revolves around basic notions of common sense justice and basic functionality of arbitration. It may find legalistic expression in the fundamental principle of good faith and can usually be rooted in general principles of law such as the punishment of fraud and bad faith, the prohibition to contradict oneself to the detriment of others, 90 the doctrine of unclean hands, the protection of legitimate expectations and reliance on apparent positions. Blessing provides the basic insight: 'again the "heart" of all the above notions or doctrines clearly is the bona fides principle, respectively the requirement to act in good faith and the notion that positions or defenses which stand in contradiction to the exigencies to act in good faith will not deserve legal (or arbitral) protection.' 91 general principles of law in the sense of article 38 of the Statute of the ICJ thus have a decisive role to play in absorbing the rising complexity of jurisdictional assessment and in permitting equitable considerations to affect decision making, while maintaining legal rigour and simplicity of applicable rules. The application of general principles of law to the particular case should not pose a problem, since they also constitute basic principles of law in most legal systems.
c. Essentialism of effective control
Advancing economic, equitable or pragmatic reasons for extension is not necessarily exclusive of judicial control. It nevertheless induces a unique difficulty in the task of giving legal reasons for jurisdictional findings. In discharging their duty to render an enforceable award, arbitrators must make explicit the necessity of compelling non-consenting parties, that is to say, their reasoning must lay out the contextual elements that would render the exclusion of the consent requirement compelling and the opposite solution grossly unjust. When possible, the tribunal should verify whether the equitable outcome could also be rooted in some applicable principle of law. as mentioned above, it usually will be.
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On the other hand, the attraction (and danger) of using a language of consent, even if none can be derived from the facts, is clear and present. It would enhance the chances of enforcement of the award, if enforcement were attempted outside the most refined jurisdictions. Courts, exercising control, should not give tribunals an additional incentive to call 'consent' that which is not. Consensual analysis, reducing the jurisdictional function to a matter of contractual interpretation, could undermine in the minds of courts the need to exercise control. When confirming the Dow award, the Paris Court of Appeal noted: 'The arbitrators […] are exclusively empowered to interpret the aforementioned contracts […]'. 92 Therefore, their interpretation, correct or incorrect, is tenable. Obviously, this approach is fundamentally flawed. Exclusion of control of jurisdiction gives arbitrators final say over their jurisdiction, which is something they can never have. It also confuses jurisdiction and substance. The arbitrators' interpretation of the contract(s) is final only when it is part of the decision on the merits. When it is part of the jurisdictional inquiry, it should be subject to a full de novo control. In another case (in which arbitrators rendered a negative decision on their jurisdiction), the Paris Court of Appeal held that: 'To exercise its control, the court must find all the elements of law and fact to appreciate the scope of the arbitration agreement.' 93
In order to be deemed to have discharged their duty to render an enforceable award, tribunals need to do more than conduct a prima facie verification of consent. In the final award in ICC case no. 7453, the sole arbitrator noted that: 'the consent of each party must be unambiguously demonstrable if any resulting award is to be safely enforceable.' 94 The tribunal would need to state the factual basis upon which a finding of tacit consent is made, the elements indicating the extent of involvement in performance or, when extension is decided by application of veil piercing, alter ego, or apparence, the extent of control, confusion of assets or the basis for legitimate reliance.
d. Applicable law
The application of national contract law and domestic judicial theories of extension brings back to centre stage questions of applicable law. The question of the law governing the extension of the arbitration agreement in groups of companies, or in general, is particularly complex. 95 An analysis of the case law reveals two prevailing trends in addressing this question. On one hand, the issue of applicable law is often simply omitted in the reasoning of tribunals. In particular, when extension is decided by consensual analysis, the [Page98:] nature of the jurisdictional exercise, which boils down to the interpretation of the parties' intentions, usually conceals in the minds of arbitrators the need to proceed with a conflict approach to determine an applicable law by reference to which interpretation is made. On the other hand, a somewhat uniform position exists, as far as national courts are concerned. In ruling on or in controlling the decision on jurisdiction, courts tend to simply apply their lex, not as the outcome of a conflict method, but as is. They apply it either under the sophistication of the method of substantive norms (France) or tel quel (the United States and the united Kingdom). The lex fori also applies in general, not only when the courts are acting as courts of the place of arbitration but also when ruling on enforcement of awards rendered elsewhere. 96
The following critical observations may be made. First, consensual analysis should not dispense with or short-circuit the process of identifying an applicable law. Contractual interpretation should be made by reference to a set of norms. National contract laws differ, sometimes substantially, with respect to the acceptable forms of expression of consent, the principles of interpretation and the conditions and scope of application of third-party principles.
Second, in group contexts, applicable national law does not only include contract law. Fundamentally, it also encompasses the law of corporate groups, or the body of rules that govern, substantively and procedurally, the inter-entity attribution of rights and obligations. Thus, ideally, the jurisdictional inquiry would start with (or at least involve) the identification of this law. This is not how courts usually proceed. For instance, uS courts invariably apply domestic standards of veil piercing, sometimes even when they are acting as enforcing courts, to reassess findings of arbitral awards rendered under foreign law. 97
Eurosteel Ltd v. Stinnes AG98 provides a model for identifying the applicable law in a merger scenario. The English court held that the arbitration agreement was transmitted by universal succession to the non-signatory entity in which the signatory entity merged. The court distinguished between German law, which governed the conditions and regime of the merger as the law of the place of incorporation, and English law, which governed the assignment of the arbitration agreement as the law of the place of arbitration; and applied each in its own domain.
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9. Consent REDUX?
a. The decline of consent
For the first time in modern times, consent is not the sole criterion that is allowed to govern the validity of the waiver of judicial jurisdiction in favour of private justice. The decline of consent within a broader context of sophistication of jurisdictional assessment epitomizes a major breakthrough in solutions to problems of jurisdiction in international commerce. Tribunals and courts have ventured to accommodate complex commercial settings beyond the arbitration system's final frontier and logical limit: consent.
International arbitral practice has developed limits on a pure and simple search for consent in assessing jurisdiction vis-à-vis non-signatories. These limits are contextual (derived from the distorting effect of the existence of an economic group), intrinsic (ensuing from the retrieved nature of the arbitration agreement as an ordinary contract, which brings about the application of contract law principles and reduces the autonomy of the arbitration clause from the main contract), pragmatic (when the pursuit of consent is inconsistent with equity or the efficacy of the jurisdictional construct) and functional (derived from the universal development of arbitration and hence the growing treatment of the right or obligation to arbitrate as the accessory of the substantive rights and obligations themselves). Today, the jurisdictional fate of non-signatories is often decided at the intersection of subjective intent and objective context, of legal principles and subjacent equity.
b. Is it good?
Undermining consent is, in most cases, inevitable. More often than not, the judicial trends that depart from classic consensual analysis or consecrate forms of objective jurisdiction are not luxury exercises in judicial or arbitral lawmaking. They simply reflect the complexity of the context of jurisdictional assessment in groups of companies and constitute a necessary adaptation of a living law to the necessities of practice. The decline of the requirement of consent may be rationalized by reference to the emergence of arbitration as the juge naturel of disputes arising under international contracts. One consequence of this is the reduced conceptual necessity of consent as a technique of opting out of the default jurisdiction of national courts.
Nevertheless, the development of limits on consent tests the limits of the legitimacy of the arbitration system. Arbitral practice should be geared, insofar [Page100:] as possible, towards ways to restore consent to its previous empire. In this respect, the fate of non-signatories (and to a certain extent of the arbitral system) also depends on the parties themselves and, above all, on the wisdom of those who decide.
c. Contractual management of jurisdictional exposure
With the development of practices of extension, the parties' focus will shift from which jurisdictional option to choose (i.e. whether to arbitrate) to how to contractually or factually manage the scope of possible exposure to arbitral jurisdiction. A priori, parties may re-exercise their partially expropriated autonomy in ways that would defeat or restrict prevailing extension practices. Signatory entities (of a group or of the state) may wish to restrict the scope of a particular transaction from reaching non-signatory corporate entities or the state itself. They may do so via a restrictive interpretation clause, which would require the tribunal, in case of doubt, to exclude an economic or expansive interpretation of the scope of the arbitration agreement. They may also simply exclude the application of particular doctrines or principles of extension under the applicable law.
An often forgotten yet important option is a choice of law clause. The parties may revive their dormant party autonomy and choose the law applicable to the arbitration agreement with respect to the scope of jurisdiction. They may extend the application of the law governing the merits to govern jurisdiction as well, choose a different law to apply or refer to a-national [non-national] norms. The choice of a national law with restrictive views on the particular question of extension that is likely to arise avoids surprise attempts on non-signatories by third parties. However, it could also tie the hands of the group entities when the need to bring claims against the third party contracting with the group arises. The selection of a governing law that provides for liberal solutions gives broader discretion to the tribunal but increases the exposure of both non-signatory entities and the third party contracting with the group to a possible expansive assertion of jurisdiction.
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Despite their usefulness, aspects of these 'management of jurisdiction clauses' are uncertain, and it is the task of future case law to clarify their operation. As agreements between signatory entities and the third party contracting with them, it is likely that these clauses would not bind non-signatories that may still be able to bring a claim against the third party signatory. If this were the case, these clauses would provide more protection to non-signatory entities than to third parties contracting with the group. In principle, management of jurisdiction clauses would bind the tribunal, since they relate to the exercise of its mandate in ruling on jurisdiction. However, the extent to which such contractual arrangements will be given effect to the detriment of objective considerations that justified the exclusion of consent in the first place is also an open question. Finally, the development of management of jurisdiction clauses also involves a risk of entrenching current extension practices. It would enshrine the notion that, if parties do not manage exposure to arbitration in groups of companies, i.e. if they do not opt out of rules expanding jurisdiction, they may be deemed to have implicitly consented to the application of these rules. 99 As a general matter, courts should give maximum effect to these arrangements, in a spirit of giving back to the parties what belongs to them.
10. The future: Consent as a DEFAULT Criterion
Experts on international arbitration should take notice of the significant effacement of consent in jurisdictional assessment vis-à-vis non-signatories and should fully understand the practical, normative and conceptual consequences of this major phenomenon. They should also take notice of the richness of and significant potential for creative advocacy in the field, permitted by the transition towards a more sophisticated decisional environment and less certain rules.
Tribunals asserting jurisdiction vis-à-vis non-consenting parties should pay special attention not only to jurisdictional but also to procedural issues. Extension of jurisdiction entails an extension of procedural safeguards to non-signatories. non-consenting parties, attending or absent, must be kept informed of all procedural steps and communications. Equality of treatment is of the essence.
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Fundamentally, decision-makers should not forget that consent remains, and is likely to remain, the default rule in assessing jurisdiction, even though practice permits the usage of a number of approaches, criteria and norms that are less or even non-consensual. Blessing affirms that: '[…] such fundamental principles cannot easily be removed […] unless very specific circumstances demand such a removal.' 100 Similarly, Hanotiau recalls that: 'However far one is ready to stretch the concept of consent (and it may go as far as considering certain specific conduct as a substitute for consent), one should not forget that consent is the fundamental pillar of international arbitration.' 101 Looking at 'The Future', one can hear Leonard Cohen humming: 'give me back [consent, consent, consent].'
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1 A.S. Rau, 'arbitral Jurisdiction and the Dimensions of "Consent"', arb. Int'l 24(2) (2008) p. 199.
2 J. Hosking, 'non-Signatories and International arbitration in the united States: The Quest for Consent', arb. Int'l 20(3) (2004) p. 289.
3 J. Hosking, 'The Third party non-Signatory's ability to Compel International Commercial arbitration: Doing Justice Without Destroying Consent', pepp. Disp. Resol. L.J. 4 (2004) p. 469.
4 D. Cohen, 'arbitrage et groupes de Contrats', Rev. arb. (1997) pp. 477-478.
5 J. Fouret, 'Denunciation of the Washington Convention and non-Contractual Investment arbitration: "Manufacturing Consent" to ICSID arbitration', J. Int'l arb. 25(1) (2008) p. 71.
6 See K. Youssef, 'The Decline of Consent in International Commercial arbitration: The Disintegration of the arbitration agreement and the Construction of a World Commercial Justice', JSD thesis, Yale University, 2007.
7 V. Dominique, 'Extension of arbitration agreements Within groups of Companies: The alter Ego Doctrine in arbitral and Court Decisions', ICC Bulletin 16(2) (2005) p. 63.
8 See supra n. 4.
9 See supra n. 5.
10 C.P.R. Romano, 'The Shift from the Consensual to the Compulsory paradigm in International adjudication: Elements for a Theory of Consent', 39 N.Y.U. J. Int'l L. & pol. (2006-2007) p. 791.
11 The term is classic in US federal case law.
12 Compelling a non-signatory to arbitrate does not per se violate the right to a fair trial. nisshin Shipping Co. Ltd v. Cleaves & Company Ltd [2003] EWHC 2602 (Comm). (Compelling a third party to arbitrate under the uK 1999 Contracts (Rights of Third parties) act does not violate article 6(1) of the European Human Rights Convention).
13 Even under very liberal French law, an arbitral award can be challenged 'if the arbitrator has rendered his decision in the absence of an arbitration agreement or on the basis of an arbitration agreement that is invalid or that has expired' (article 1502(1) French NCPC).
14 Adams v. Cape Industries plc., English Court of appeal [1990], 1st Ch. 433, p. 544: 'We do not accept as a matter of law that the court is entitled to lift the corporate veil as against a defendant company which is the member of a corporate group merely because the corporate structure has been used so as to ensure that the legal liability (if any) in respect of particular future activities of the group […] will fall on another member of the group rather than the defendant company. Whether or not this is desirable, the right to use a corporate structure in this manner in inherent in our corporate law.'
15 According to Otto Sandrock: '[I]t is the very purpose of the group of companies-concept that each member of such group maintains its legal independence to the effect that its own legal actions bind only itself and do not bind the other members of its group, and that the other members of its group also cannot avail themselves of the rights accruing out of its actions. To decide otherwise, would mean to give up the group of companies-concept itself. The notion of the separate entity of each juristic person would also have to be sacrificed. This would be unacceptable.' See O. Sandrock, 'Extending the Scope of arbitration agreements to non-Signatories', in The arbitration agreement - Its Multifold Critical aspects, aSa Special Series no. 8 (1994) pp. 165-180 at p. 167.
16 See b. Hanotiau, Complex arbitrations (Kluwer, 2005).
17 See Working group on 'Jurisdiction over non-Signatories: national Contract Law or International Arbitral Practice?', in A.J. van den Berg (ed.), International arbitration - back to basics?, ICCA Congress Series no. 13 (2006).
18 See K. Youssef, Consent in Context, Fulfilling the promise of International arbitration: Multiparty, Multi-Contract and non-Contract arbitration (West, 2009).
19 I am very indebted to Jan Paulsson for suggesting this expression.
20 Dow Chemical France and others v. Isover Saint Gobain ('Dow'), Interim award, ICC case no. 4131 of September 1982; ICCA YB 9 (1984) p. 131; Coll. ICC arbitral awards 1974-1985 (1990) p. 150.
21 ICCA YB 9 (1984) pp. 131, 136.
22 In this sense, see B. Hanotiau, 'non-signatories in International arbitration: Lessons from Thirty years of Case Law', in A.J. van den Berg (ed.), International arbitration - back to basics?, ICCA Congress Series no. 13 (2006) pp. 341-358 at pp. 343-344.
23 E. Gaillard and J. Savage (eds.), Fouchard, Gaillard, Goldman on International Commercial arbitration (Kluwer, 1999) at para. 500.
24 ICC cases nos. 7604 and 7610, J.D.I. (1998) p. 1029.
25 See, for example, ICC case no. 1434, J.D.I. 103 (1976) pp. 978, 979-980, obs. Y. Derains.
26 Hanotiau, supra n. 22, at p. 343.
27 Ibid.
28 ICC case no. 6519 (1991), J.D.I. (1991) p. 1065: '[W]ithout denying the economic reality of a "group of companies", the scope of an arbitration clause may be extended to nonsignatory companies with separate legal significance only if they played an active role in the negotiations leading to the agreement containing the arbitration clause, or if they are directly implicated in the agreement.' See also the cases cited in Vidal [INSERT FULL REFERENCE], p. 73, n. 61.
29 The Paris Court of Appeal extended the arbitration agreement contained in a charterparty to the non-signatory carrier who took part in the performance of the charterparty. Cotunav, 28 November 1989, Rev. arb. (1990) p. 675.
30 The group of companies doctrine has been applied to economic structures as varied as joint ventures and consortiums. A variation of the doctrine has been applied, by analogy, to extend the arbitration agreement signed by a state entity to the non-signatory state itself, or to non-signatory states of a signatory organization (e.g. the Westland award).
31 Sandrock, supra n. 15, at p. 180.
32 '[a] first conclusion may be drawn from the awards and court decisions to the effect that the determination of whether an arbitral clause should be extended to other companies of the group or its directors or shareholders is "fact specific" and may differ depending upon the circumstances of the case.' Hanotiau, supra n. 22, at p. 351.
33 Ibid., at p. 344.
34 Ibid.
35 Under general principles of contract interpretation, the circumstances that accompanied the conclusion of the contract should be taken into account. Joseph M. Perillo (ed.), Corbin On Contracts - Interpretation of Contracts (1998) § 24.21.
36 N. Rubins, 'Group Of Companies Doctrine And The New York Convention', in E. Gaillard and D. Di pietro (eds.), Enforcement of arbitration agreements and International arbitral awards: The New York Convention in practice (Cameron May, 2008) pp. 449-479 at p. 457 (emphasis added).
37 30 November 1998 (unpublished), cited in Hanotiau, supra n. 22, at pp. 351-352.
38 Ibid.
39 See infra section 2.b: global assessment of jurisdiction.
40 See infra section 5: Equity.
41 M. Blessing, 'Extension of the arbitration Clause to non-Signatories', in The arbitration agreement - Its Multifold Critical aspects, ASA Special Series no. 8 (1994) pp. 151-164 at p. 160.
42 Fouchard, Gaillard and Goldman, supra n. 23, at paras. 500-501.
43 Dow, ICCA YB 9 (1984) pp. 131, 136 (emphasis added).
44 For the application of the principe de l'apparence as basis for extension in French case law, see infra n. 65,
45 See, for example, ICC cases nos. 7604 and 7610, J.D.I. (1998) p. 1029: 'It is necessary to look for the actual and common intention of the parties at the time of the facts, or, at the very least, that of the non-signatory third party.'
46 Dow, ICCA YB 9 (1984) pp. 131, 136.
47 Pau Court of appeal, 26 november 1986, Rev. Arb. (1988) p. 154.
48 ICC case no. 6519 (1991), J.D.I. (1991) p. 1065: '[W]ithout denying the economic reality of a "group of companies", the scope of an arbitration clause may be extended to non-signatory companies with separate legal significance only if they played an active role in the negotiations leading to the agreement containing the arbitration clause, or if they are directly implicated in the agreement.'
49 Involvement was 'an insufficient showing of complete domination or extensive control' for purposes of assessing veil piercing (and not for implying consent). Bridas II, 447 F.3d 411, 415 (5th Circuit, 2006), citing the District Court decision of 2004 before reversing it and holding the non-signatory state entity liable on alter ego grounds.
50 Hanotiau, supra n. 22, at p. 352 (footnote omitted).
51 ICC ICA Bull. 2(2) (1991) pp. 31, 34 (emphasis added).
52 M.J. Mustill, 'The new Lex Mercatoria', in M. Bos and I. Brownlie (eds.), Liber Amicorum for Lord Wilberforce (Clarendon press, 1987) p. 176, principle no. 8.
53 Sté Ofer brothers v. The Tokyo Marine and Fire Insurance Co. Ltd. et autres, Paris Court of Appeal (1re Ch. Suppl.), 14 February 1989, Rev. arb. (1989) p. 691. For almost identical language, see Orri v. Sté des Lubrifiants Elf quitaine, Paris Court of Appeal (1re Ch. Suppl. D), 11 January 1990, Rev. arb. 2 (1992) pp. 95-98; and Sté Jaguar (V 2000) v. Sté project XJ 220, Paris Court of Appeal (1re Ch.) 7 December 1994, Rev. arb. (1996) p. 250.
54 Rev. arb. (1989) p. 694.
55 J.F. Poudret, 'L'extension de la clause d'arbitrage: approches française et suisse', J.D.I. (1995) at p. 901.
56 Sté Jaguar (V 2000) v. Sté project XJ 220, Paris CA Court of Appeal (1re Ch.) 7 December 1994, Rev. Arb. (1996) op. 254, obs. C. Jarrosson.
57 Poudret, supra n. 55, at p. 901.
58 b. Hanotiau, 'problems Raised by Complex arbitrations Involving Multiple Contracts -parties - Issues: an analysis', J. Int'l. arb. 18(3) (2001) pp. 253, 273.
59 ICC case no. 3879, Interim award of 5 March 1984, YBCA 11 (1986) p. 130.
60 "The issue of who is party to the arbitration clause is therefore mainly viewed as an issue of consent, but 'extension' may nevertheless be achieved by recourse to other theories such as agency, trust or piercing the corporate veil." Hanotiau, supra n. 22, at p. 351.
61 Sandrock, supra n. 15, at p. 168.
62 'Arbitration is contractual by nature […]. It does not follow, however, that under the [Federal arbitration] act an obligation to arbitrate attaches only to one who has personally signed the written arbitration provision. This court has made clear that a non-signatory party may be bound to an arbitration agreement if so dictated by the ordinary principles of contract and agency.' Thomson-CSF, S.A. v. American Arbitration Ass'n, 64 F.3d 773, 776 (2d Cir. 1995).
63 Macneil, Speidel and Stipanowich, Federal Arbitration Law: Agreements, Awards And Remedies under the Federal arbitration act (1994) § 18.7.1.1.
64 Poudret, supra n. 55, at p. 913.
65 Paris Court of Appeal , 7 October 1999, Rev. arb. (2000) p. 288 (D. bureau): 'Les circonstances de la négociation, de la conclusion et de l'exécution du contrat ayant créé pour l'un des contractants la croyance légitime qu'une société, avec qui elle avait delà traite dans le passe, était également partie à ce contrat bien qu'étant pas signataire, la convention d'arbitrage a un effet obligatoire pour cette dernière conformément au principe de l'apparence applicable aux relations du commerce international.'
66 See, for example, Cass. com., 20 November 1990, bull. inf. stés (1991) p. 99.
67 See Cass. civ. 1re, 11 June 1991 (Orri), Rev. arb. (1992) pp. 74-75 (non-signatory owner of a group of companies compelled to arbitrate based on the creation of confusion among different entities and his attempt to avoid being personally bound).
68 Rubins, supra n. 36, at p. 460.
69 See Hosking, supra n. 3, at pp. 469, 486.
70 Ibid., at p. 487.
71 Hosking, supra n. 2, at pp. 289, 303.
72 Hanotiau, supra n. 58, at p. 278.
73 J. Townsend, 'non-signatories and arbitration', ADR Currents 3 (1998) p. 19 at p. 23.
74 'While the case law generally shows a deference to consent, especially in the united States, one finds that it sometimes takes a backseat to such notions as "the need for efficiency" or upholding the "presumption of arbitrability".' Hosking, supra n. 2, at pp. 289, 303.
75 Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, 7 F.3d 1110, 1122 (3d Cir.1993).
76 Sam Reisfeld & Son Import Co. v. S.a. Eteco, 530 F.2d 679, 681, 1976-1 Trade Cas. (CCH) para. 60851 (5th Cir. 1976); Burlington Ins. Co. v. Trygg-Hansa Ins. Co. ab, 9 Fed. appx. 196 (4th Cir. 2001) (compelling a parent non-signatory to arbitrate disputes under reinsurance agreements signed by its subsidiary).
77 'Courts will apply the alter ego doctrine and hold a parent corporation liable for the actions of its instrumentality in the name of equity when the corporate form is used as a sham to perpetrate a fraud.' Bridas S.A.P.I.C. v. Government of Turkmenistan, 447 F.3d 411, 416 (5th Cir. 2006).
78 George Rosenberg seems to suggest that jurisdictional assessment in these cases depends more on the balance of policy considerations at stake than on strict application of general contract law and the interpretation of the will of the parties. g. Rosenberg, 'State as party to arbitration', arb. Int'l 20(4) (2004) pp. 387, 398.
79 ICC case no. 3879, Interim award, 5 March 1984, YBCA 11 (1986) pp. 127, 132.
80 Paris Court of Appeal (1re Ch.), 7 December 1994, Rev. Arb. 2 (1996) pp. 245-249 and case note of C. Jarrosson at pp. 250-258.
81 Ibid., at p. 250.
82 Rubins, supra n. 36, at p. 466 (referring inter alia to the position of Dutch and German law).
83 Khatib petroleum Services International Co. v. Care Construction Co. and Care Services Co., Case no. 4729 of Judicial year no. 72, 22 June 2004. For the full text and commentary, see K. Youssef, 'The group of Companies Doctrine in Egyptian Law', SIAR 3 (2007) pp. 103-113.
84 Ibid., at pp. 105-106.
85 Hanotiau, supra n. 22, at p. 353.
86 Hanotiau, supra n. 16, at pp. 8-9.
87 Ibid., at p. 5.
88 Interim award of 28 January 1994. See M. Blessing, 'State arbitrations: predictably unpredictable Solutions?' J. Int'l arb. 22(6) (2005) pp. 435, 440, n. 17.
89 We owe the clairvoyant association of 'wisdom' and jurisdictional assessment to Marc Blessing.
90 E. Gaillard, 'L'interdiction de se contredire au détriment d'autrui comme principe general du droit du commerce international', Rev. arb. (1985) p. 241. For the reception of the principle in French law, see Cass. civ. 1re6 July 2005, Rev. arb. (2005) p. 993 et seq.
91 Blessing, supra n. 41, at p. 162.
92 Paris Court of Appeal, 21 October 1983, Rev. arb. (1984) p. 98 (the decision that rejected the annulment of Dow).
93 SNCFT v. Sté Voith, Paris Court of Appeal (1re Ch. C), 26 October 1995, Rev. Arb. (1997) p. 555.
94 Final award in ICC case no. 7453 (1994), A.J. van den Berg (ed.), ybCa, Vol. XXII (1997) pp. 107-124, at para. 10.
95 See 'The Law applicable to the Question of Extension', in Youssef, supra n. 18, at § 9:1 et seq.
96 J.F. Poudret, 'L'originalité du droit français de l'arbitrage au regard du droit comparé', Bull. cass., no. 589, 15 December 2003.
97 See Sarhank group v. Oracle Corp., 404 F.3d 657 (2d Cir., 2005) (rejecting the enforcement of an award rendered against a non-signatory uS parent by application of Egyptian law).
98 Com Ct [1999] all ER (D) 1394.
99 Blessing, supra n. 41, at p. 164.
100 Ibid., at p. 160.
101 Hanotiau, supra n. 22, at p. 348.