Introduction

William Park once stated in a simple manner, ‘like consummated romance, arbitration rests on consent’.1 As the arbitration procedure is consensual by nature, it has been generally accepted that only entities or persons covered by the arbitration agreement are allowed to participate in the process. Thus, a party’s ability to arbitrate arises from its actions or consent to a contract that contains an arbitration clause. This position is supported by general principles of contract and agency law. Nonetheless, within multiparty relationships, it is often the case that parties who have not signed an arbitration agreement or a contract containing the arbitration clause may be brought into the process at a later stage.

In domestic litigation processes, judges can call upon the real parties-in-interest in the dispute at an early stage of the process and are able to employ a wide variety of mechanisms to bring different parties into a single proceeding without requiring their consent for the consolidation of proceedings. These mechanisms are justified on the basis of expediency in procedures and the principles of efficiency and fairness. Conversely, as the arbitral procedure hinges on an agreement to arbitrate, the arbitral tribunal must respect principles found in contract law and consent. The general rule circumscribes only the parties directly concerned within the arbitration agreement, as it serves as a contract that, in principle, should only bind the parties concerned. This approach has also been reflected in the New York Convention, the UNCITRAL Model Law on International Commercial Arbitration, and other regional and institutional rules. Furthermore, contrary to litigation, an arbitral tribunal cannot ex officio bring a party into an arbitration proceeding.

For these reasons, non-signatory entities are ordinarily not considered to be parties to an arbitration agreement and thus are not bound by its terms or its enforcement. The foregoing leads to the fact that challenges to awards to include or exclude a particular entity to an arbitration can occur throughout the entire arbitral process, especially during the enforcement stage. The New York Convention addresses the topic of domestic enforcement of foreign arbitral awards and, through its provisions, national courts are remitted to apply domestic legislation on the enforcement of an arbitral award.2

Any objection to the enforcement of an award must be restricted to the grounds prescribed by Article V of the New York Convention. Thus, Article V of the Convention provides a limited and exclusive list of grounds for non-recognition of an award. This means the Convention gives the enforcing country a discretionary power to refuse enforcement if the party opposing enforcement proves that there are certain specified grounds entitling it to contest the validity of the award in a court of law.3 Some of the grounds for refusal include: the lack of a valid arbitration agreement or a lack of capacity (Art. V.1(a)), denial of opportunity to present the case (Art. V.1(b)), an award rendered in excess of a Tribunal’s authority (Art. V.1(c)), and the lack of finality of an award (Art. V.1(e)).

It must be considered that the enforcing country may be different than the country where the award was rendered. The New York Convention grants primary jurisdiction over the arbitration award to the country where the award was made, although courts of another country have a secondary jurisdiction and can confirm the award subject to the New York Convention unless one of the grounds for refusal in Article V is applicable. In setting aside requests involving non- signatories on the grounds of invalidity or lack of jurisdiction, the court will have to decide according to the law of the country of the arbitration seat.4 The choice of the seat of arbitration will therefore be decisive on the possible approach an arbitral tribunal might take as to the joinder of non-signatory parties.

James Hosking has highlighted that even in cases where a party is successful in compelling a non-signatory to join the arbitration proceedings, there is still a risk that a losing non-signatory party may ‘re-litigate’ the issue by seeking to set aside the resulting award or by defending against its enforcement.5 This article will first summarize the different legal doctrines raised in favour of enforcing awards against non-signatories (I) and shed light on the various jurisdictional approaches (II).

I. Legal theories

In the context of non-signatory parties within an arbitral procedure, a wide variety of theories have been cited in case law and commentaries. These have been developed with the intention of preventing the re-litigation of claims, and disposing of the matters in controversy finally and conclusively so that on appeal that subject matter cannot be re-litigated between the same parties.6

Gary Born has convincingly argued that in many cases, judicial case law and commentary on international arbitration tend to make reference to an ‘extension’ of the arbitration agreement to non-signatories. Nonetheless, he observes that most theories in fact establish that the non-signatory party’s actions amount to a consent to the arbitration agreement, notwithstanding its lack of execution of the agreement, and thus there is no real issue of extension of the agreement to a ‘third party’.7 On this viewpoint, the arbitration agreement is not extended to third parties but all proper parties, who have consented to the arbitration agreement, are identified. This is specifically applicable in the cases of agency, implied consent and the doctrine of the group of companies.

The principle of agency

This principle is considered to be the least controversial circumstance by which a non-signatory will be bound by an arbitration agreement.8

An agency relationship involves an agent which executes a contract as a representative of its principal. For example, an agent may enter a contract which includes an arbitration agreement that will be binding for the principal company, but not necessarily be directly binding on the agent.

Courts have allowed agents, employees and representatives of a principal company to be bound by the terms of a valid arbitration clause in cases where alleged wrongful acts relate to the non-signatory’s behaviour as an agent.9

An arbitration clause can be applicable to a party who has signed a contract containing an arbitration clause if it was empowered to act on behalf of the principal and empowered to refer a dispute to arbitration.10 In other words, for the principle of agency to be applied, an agent must be duly authorized to enter into such agreements by its principal.

A limit to the agency relationship lies on the level of involvement of the agent. Arbitral awards have held that a mere incidental involvement in the contract’s performance is not enough to constitute a means of consent to the contract or its arbitration clause.11 In the Interocean shipping case the court held that:

[A]gency is a legal concept which depends on the manifest conduct of the parties not on their intentions or beliefs.12

Thus, a key characteristic to consider in the agency relationship is the degree of control that the principal retains over the agent.13

The doctrine of implied consent

The doctrine of implied consent allows the extension of the arbitral agreement to a non-signatory party on the basis of an implicit agreement.

Similar to the agency principle, a mere incidental involvement in negotiations or performance of the contract has been held insufficient to constitute implied consent. However a party can be bound by an arbitration agreement through its conduct or non-explicit declarations.

Here, it is important to analyse the party’s objective intention. Article II of the New York Convention requires that an agreement to arbitrate must be in writing. Moreover, this should not be read in its literal sense as it does not specify that the written agreement must be signed. Evidence of consent might also be supported through alternative forms other than the traditional signature or document exchange. According to this theory, a non-signatory can still be de facto bound by an arbitration clause if implied consent to arbitrate can be proven through means other than signature.14

The doctrine of estoppel

Also known as the doctrine of ‘equitable estoppel’, estoppel is generally based on business practice and commercial standards.15 In the context of arbitration, estoppel is what prevents a party, who accepts with due knowledge, the benefits of a contract which contains an arbitration agreement, from avoiding the obligation to arbitrate contained in that contact.

When the essence of a claim relates to a contract requiring arbitration, a signatory may be barred (estopped) from asserting inapplicability of an arbitration clause. The doctrine of ‘estoppel’ can be invoked to preclude parties from denying that they are party to arbitration or other agreements.16 It means that a party is not allowed, on considerations of good faith and equity, to act inconsistently with its own statements or conduct.

The crucial condition for estoppel is that the representation must have been relied upon. As we shall see in the next section that means that a belief must have been engendered or strengthened by the representation, and something must have been done as a result of that belief; and causation is notoriously difficult to define or prove.17

In some cases, the doctrine of estoppel has allowed an equity analysis by ‘estopping’ a non-signatory from refusing to comply with an arbitration clause in cases where it receives a direct benefit from a contract containing an arbitration clause. Nonetheless, civil law jurisdictions do not necessarily recognize the estoppel doctrine as such.18

The doctrine of alter ego and veil piercing

A party who has not assented to a contract containing an arbitration clause may nonetheless be bound by the clause if that party is an ‘alter ego’ of an entity that did execute or was a party to the agreement.19

An ‘alter ego’ is considered to be a party that dominates the affairs of another party. In the context of international arbitration, in order to demonstrate an alter ego relationship exists, there must be evidence that the entity dominated the usual actions of another or it exercised its power to fraud a third party or to evade legal obligations. Even though the company has limited liability, the parties in an arbitration dispute tend to reach shareholders that entered into a contract containing an arbitration clause.

‘Piercing the corporate veil’ refers to the figure by which a company’s separate legal personality can be disregarded. As a consequence, individual shareholders can be made personally liable for the acts of the company. The disregard of corporate personality will be based on factors such as fraud, malfeasance, protection of third persons or the prevention of evasion of legal requirements or obligations.

French jurisdictions refer to ‘abus de droit’ and other jurisdictions to ‘extending liability’ to describe and justify the exceptional situation where owners will answer for a company’s debts. In the United States, piercing the corporate veil has been allowed in cases of domination of a corporate affiliate and fraudulent misuse of control or an equivalent misconduct to the injury of other parties. However, such ‘domination’ of a corporation in order to pierce the corporate veil is not enough on its own. An additional wrongful or unjust act is required by most courts.

Where a company has been utilised as an extension or alter ego of its principal in order to carry out the principal’s business, the corporate veil can be pierced so as to impose liability on the principal company under the arbitration agreement.

The doctrine of group of companies

Lastly, the doctrine of the group of companies has been developed in civil law jurisdictions, specifically within the context of international arbitration. It allows non-signatory parties that are part of a corporate group into disputes that involve a company of that group. However, this corporate group must be subject to the control of a corporate affiliate which has executed the contract and was involved in the negotiation or its performance. Under these circumstances, this doctrine takes into consideration an economic reality and allows a company to benefit from the arbitration clause, notwithstanding the fact that it did not directly execute the contract.20

From a common-law perspective, it is unusual to subject non-parties into an arbitration agreement as it would not only disregard the consensus of the parties, but also the privity of the contract. From a civil law perspective, some lawyers have argued that an economic reality must weigh in favour of the application of this doctrine. An ICC Award for instance established the following:

The security of international commercial relations requires that account should be taken of its economic reality and that all the companies of the group should be held liable one and for all and all for one for the debts of which they either directly or indirectly have profited at on this occasion.21

In France, a civil law jurisdiction, this doctrine is predominant and non-signatory parties have been referred to arbitration pursuant to the group of companies doctrine.22 In the Dow Chemical v. Isover St. Gobain case, Dow Chemical Company and Dow Chemical France had not signed an arbitration agreement. However, the arbitral tribunal accepted their appearance having regard to the common intention of the parties, the needs of international trade and the ‘presence of a group of companies’. In doing so, the tribunal highlighted the fact that a group of companies, irrespective of the distinct legal identity of its members, constitute the ‘same economic reality’.23 Accordingly, a group of companies can constitute a same economic reality which an arbitral tribunal should take into account when it rules on its own jurisdiction. On this regard, Derains notes that what is relevant is whether all parties intended the non-signatory to be bound by the arbitration clause.24

Although most civil law jurisdictions advocate for this doctrine, it is surrounded by extensive criticism. In some circumstances, this doctrine has led to an extension of the ratione personae scope of the arbitration clause. Parent companies often instruct non-signatory members of their corporate families to litigate claims on their behalf and in doing so, they undermine the business certainty required in typical complex multicorporate transactions.25 Interestingly, a study on the group of companies’ criteria conducted by Poudret and Besson found that tribunals extended the arbitration clause to non-signatories in only 25 percent of the surveyed cases.26

The doctrine of the group of companies also raises difficulties at the enforcement stage of the award. For example, in Sarhank Group v. Oracle Corporation, the arbitrators had bound a parent company to an arbitration agreement on the grounds that the subsidiaries could not conduct transactions without having the approval of a parent company. Here, however, the United States Court of Appeal refused to enforce the award on the basis that there was no clear consent on behalf of the parent company as it had previously objected to arbitrate.27 In addition, it stated that under U.S. law, a non-signatory cannot be bound to arbitrate without persuasive evidence of the satisfaction of U.S. contract or agency law requirements. This case shows that even if the Arbitral Tribunal had issued an award holding the parent company and its subsidiaries jointly and severally liable, the court may still take a different position and deny the enforcement of the award by relying on domestic law provisions.

II. Different jurisdictional approaches in France, the United Kingdom, the United States and Singapore

The European dilemma: the United Kingdom and France

English courts have adopted a strict position by which, in order to be bound by an arbitration clause, a non-signatory party must have been involved in clear positive acts that could lead to establish the intent of that party to accede the contract. In addition to this, the original parties must accept this accession.

On the other hand, French courts have adopted the position that the effect of international arbitration clauses extends to the parties directly involved in the performance of the contract and any disputes that may arise in connection therewith.28

Dallah Real Estate & Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan

Opposing positions have led to contradictory judgments such as in the case Dallah Real Estate & Tourism Holding Co. v. Ministry of Religious Affairs, Government of Pakistan. A contract had been concluded between a private company named ‘Dallah Estate’ (‘Dallah’) and a Pakistani trust ‘Awami Hajj’ which was managed by a board of trustees, with the Minister of Religious Affairs acting as chairman of the board and the Secretary of Religious Affairs Division of the Ministry acting as Secretary (the ‘Trust’). The negotiations were led by the Government of Pakistan which had promulgated an ordinance providing for the establishment of the trust. Nevertheless, after the execution of the contract between Dallah and the Trust, the Secretary of Ministry of Religious Affairs put an end to the contract alleging a breach of fundamental obligations by Dallah. Consequently, Dallah initiated an ICC arbitration in Paris against the Government of Pakistan.

Reflecting the French position, the arbitral tribunal noted that the arbitration agreement should be extended to the parties even if they did not actually sign the contract. They came to the conclusion that direct involvement took place during the negotiation and performance of the contract and that Dallah demonstrated that the Government of Pakistan had been a party to the contract.

Dallah then sought to enforce the award in England. The English High Court refused the enforcement of an award rendered in France on the basis that the Government of Pakistan was not bound by an agreement to which it was not a signatory. In addition, the High Court considered that the underlying issue was whether there was a subjective common intention of all the parties to be bound by the arbitration clause as follows:

In order to determine whether an arbitration clause upon which the jurisdiction of an arbitral tribunal is founded extends to a person who is neither a named party nor a signatory to the underlying agreement containing that clause, it is necessary to find out whether all the parties to the arbitration proceedings, including that person, had the common intention to be bound by said agreement and, as a result, by the arbitration clause…To this effect, the courts will consider the involvement and behaviour of all the parties during the negotiation, performance and, if applicable, termination of the underlying agreement.29

More specifically, it was noted by the English Court of Appeal that if it had been the parties’ common intention, the Government of Pakistan would have been named as a party in the agreement, or would have added its signature in a way that reflected this fact.30 Further, the UK Supreme Court analysed the common intention of the parties and concluded that there was no evidence corroborating the tribunal's conclusion that the Government was a party to the arbitration agreement. Consequently, the award was made unenforceable in the UK.31

On the contrary, the Cour d’Appel de Paris followed the traditional French path as it concluded that prior to the conclusion of the contract, the Government of Pakistan was the only negotiating partner and that, furthermore, it was the Government of Pakistan who directly negotiated the contract through the Trust. According to the French Court, the Government of Pakistan had become a party to the dispute through its conduct.32 The award was enforceable in France.

Although both jurisdictions applied French law, they reached different conclusions on the issue of non-signatory parties.

Apart from portraying different jurisdictional positions using the same law, this case provides ample evidence of contradictory French and English court’s application of the same principles, namely: good faith and the notion of consent. The English court considered that raising good faith in commercial relations was insufficient to bind the Government of Pakistan. On the other hand, the French court referred to the same principle but took a rather holistic approach alleging that as the Government had shown participation during the process, it could not exclude it from the dispute due to a perceived unfairness. Thus, the French court kept the same line of argument by which special consideration should be given to the economic reality and business relationship. Hence, this shows a clear inclination towards the doctrine of the group of companies.

Today, one of the main challenges that parties face is the divergence in decisions of national courts and arbitral tribunals with regards to non-signatories. Different criteria and doctrines are applied in common law and civil law jurisdictions. It has become clear that the question is no longer if an arbitration agreement should be extended but instead, under what circumstances it should be allowed. The Dallah case serves as an example to show that the issue of non-signatory parties is dealt with at the stage of the award and could also be brought up as an issue during the enforcement stage.

A similar approach in the United States and Singapore: the alter ego doctrine

The United States

In the United States, arbitrators will decide on their jurisdiction but federal courts are designated to decide whether a party has agreed to arbitrate a dispute.33 Here, courts rely on the Federal Arbitration Act, which reflects the principles contained in the New York Convention.

Federal courts have reflected a general trend to extend the arbitrability of many international disputes to non-signatories, allowing third party beneficiaries, corporate parents, guarantors or controlling state entities to participate in the arbitration.34

Non-signatory parties have been bound by an arbitration agreement through ordinary principles of contract and agency law, as stated by a U.S. Second Circuit court:

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’.35

In this case, the signatory supplier commenced arbitration proceedings against both its original contracting party and its parent company (‘Thomson’). Thomson asserted that the Circuit Court compelled it to arbitrate on the basis of an arbitration agreement with Thomson's subsidiary. The U.S. Court of Appeals reversed the judgement of the Circuit Court as under ‘ordinary principles of contract and agency law’ Thomson could not be said to have agreed to arbitrate its disputes.

This case has served as a reference for later cases as it delineated specific circumstances by which a court may extend an arbitration agreement to a non-signatory party. It found that in cases which involve incorporation by reference, tacit consent, agency, piercing of the corporate veil and the doctrine of estoppel, non-signatories may be considered into a procedure. As a member of the New York Convention, the United States have the obligation to enforce an arbitral award unless it finds the arbitration agreement to be null or void, inoperative or incapable of being performed. In general, U.S. courts exercise a strong presumption in favour of enforcing arbitral awards and are usually disinclined to set aside or modify an award rendered by an international tribunal.36

A general consensus indicates that a non-signatory party that was not found to be a party to the dispute by the tribunal cannot be subject to the enforcement of an award. Nonetheless, an exception to this rule exists when there is convincing evidence that an alter ego relationship exists. As previously observed, according to the alter ego doctrine, it is possible to pierce the corporate veil if there is a strong unity of ownership and interest between the parent and the subsidiary and a fraud or wrongful element is present.37 Thus, general acceptance has been given to the alter ego approach within the United States.

Singapore

Singapore has followed a similar approach to the Unites States when enforcing awards with non-signatory parties, as high value is given to consent and its manifestation through an arbitral agreement.38

According to the doctrine of ‘privity’, entities which are not parties to an arbitration agreement should not be bound to an arbitration procedure.39 Nonetheless, this rule has not been absolute and Singaporean courts have joined companies or individuals who are not formally signatories through figures such as piercing of the corporate veil on the basis of the alter ego doctrine.40

In the case Aloe Vera,41 an award was challenged on the basis that the party was not a signatory to the arbitration agreement. The Singapore High Court found there was no evidence of the ground listed in Article V(1)(a) of the New York Convention and that it was appropriate to address the alter ego doctrine in arbitration.

In sum, both Singapore and the United States place a high value to principles found in contract law, specifically when it comes to extending the scope of the arbitration agreement to non-signatories through the alter ego doctrine.

Conclusion

The legal theories and decisions described show that there is currently no international regulation – under the UNCITRAL Model Law on Commercial Arbitration or the New York Convention – nor a common position among different jurisdictions that sets a regime for the extension of the arbitration agreement to non-signatory parties. It has however become clear that the question is no longer if an arbitration agreement should be extended but rather, under which circumstances it can be extended. The discrepancy in solutions and methods used by national courts should be known to the parties and practitioners, for instance when selecting the place of arbitration.

Because many commercial transactions involve multiple parties and contracts, difficulties related to the issue of non-signatory parties may arise during the arbitral procedure and during the enforcement stage. The risk lies on the fact that an award rendered in a state with one approach towards non-signatories may not be enforced abroad in a jurisdiction that interprets this issue in a different manner.

With regards to multiple contracts, a possible solution adopted by some companies is the use of ‘master dispute agreements’, which incorporates by reference all the individual contracts.42 With regards to multiple parties, courts should take a business oriented approach and consider the effects awards could have on the rights and obligations of non-signatory parties – even if they don’t display direct participation in the arbitral process.

A balance should be struck between the importance of consent and the circumstances of each case, which may lead to the inclusion of a non-signatory party when considering a business perspective and the economic reality. A common agreement by the international community should be reached to obtain a global and harmonized approach on the non-signatory issue. This would ensure greater uniformity in the enforcement of awards within different jurisdictions and undoubtedly promote greater legal certainty and stability in international arbitration.

1
Park W. (2009), Non-Signatories and International Contracts: An Arbitrators Dilemma, Multiple Parties in International Arbitration, Oxford University Press, p. 1.

2
For further guide see UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 2016 Ed., available at http://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/2016_Guide_on_the_Convention.pdf.

3
When analysing from a historical perspective the New York Convention, Paulsson refers to the Secretary General’s comment on Article V: ‘[Article V] … gives the enforcing country a discretionary power to refuse enforcement or to adjourn the proceedings if the party opposing enforcement proves that there are certain specified grounds entitling him to contest the validity of the award in a court of law…’ in Paulsson, J. (2016), The 1958 New York Convention in Action, Kluwer Law International, p.159; see also in this context Gaillard, E., Di Pietro, D. and Leleu-Knobil, N. (2008), Enforcement of arbitration agreements and international arbitral awards, Cameron May.

4
Art. V (1) (a) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 330 UNTS 38; 21 UST 2517 7 ILM 1046 (1968); see in this context Pavić V. (2009),’ "Non-Signatories" and the Long-Arm of Arbitral Jurisdiction’, Resolving International Conflicts – Liber Amicorum Tibor Varady, Hay P., Vekas L. & Dimitrijevic N. (eds.), CEU Press, pp. 213-214; Brekoulakis, S. (2017), ‘Rethinking Consent in International Commercial Arbitration: A General Theory for Non-Signatories’, 8(4), Journal of International Dispute Settlement.

5
Hosking, J. (2004), ‘Non-Signatories and International Arbitration in the United States: The Quest for Consent, Arbitration International’, 20(3), Journal of International Arbitration, p. 299; see also in this context Westland Helicopters Ltd v. Arab Organization for Industrialization, ICC Case No. 3879, Interim Award (5 March 1984) 23 ILM 1071; Eisen, C. (2001), ‘What Arbitration Agreement? Compelling Non-signatories to Arbitrate’, 40, Dispute Resolution Journal.

6
For further insight see Barnett, P. (2001), Res judicata, estoppel and foreign judgments, Oxford University Press; Gallagher, N. (2006),  Parallel Proceedings, Res judicata and Lis Pendens: Problems and Possible Solutions, Kluwer Law International; Bocharova, N. (2017), ‘The Scope of the Arbitral Award Binding Effect (Interests of Third Parties in International Arbitration)’, 5(2), Russian Law Journal, p. 79.

7
Born G. (2014), International Commercial Arbitration, 2nd Ed., Kluwer Law International, p.1413; Hanotiau, B. (2005), Complex Arbitrations: Multiparty, Multicontract, Multi-issue and Class Actions, Kluwer Law International, paras. 105-111; Brekoulakis S. (2010), Third Parties in International Commercial Arbitration, Oxford International Arbitration Series, paras 1.05-1.06.

8
Born G. (2014), supra note 7, p.1418; see also B. Hanotiau (2001), ‘Problems Raised by Complex Arbitrations Involving Multiple Contracts-Parties-Issues – An Analysis’, 18(3), Journal of International Arbitration, p. 258.

9
Lamm C. and Aqua J. (2003), ‘Defining the Party – Who is a Proper Party to an International Arbitration Before the American Arbitration Association and other International Arbitration and other International Institutions’, 34, George Washington International Law Review, p.724.

10
Judgment of 19 July 1988, XVI Y.B. Comm. Arb. 180, 181, Swiss Federal Tribunal (1991).

11
Poudret J., Besson, S. (2007), Comparative Law of International Arbitration, 2d Ed., Sweet & Maxwell, p. 250: "The best evidence of consent to arbitrate is a signature on the arbitration agreement by the parties who wish and intend to be bound to the arbitration agreement."

12
Interocean Shipping Co. v. National Shipping and Trading Corp. and Hellenic International Shipping, S.A, 523 F.2d 527, (2d. Cir 1975), cited in Loban K., (2009), ‘Extension of the Arbitration Agreement to Third Parties’, LLM Short Thesis, p. 10, available at: http://www.etd.ceu.hu/2009/loban_karyna.pdf.

13
Born, G. (2014), supra note 7, p.1503.

14
Ibid., p. 1429; for more in this context see Lew, J., Mistelis, L. and Kröll, S. (2003), Comparative International Commercial Arbitration, Kluwer Law International, Ch. 15.

15
Hui A. (2007), ‘Equitable Estoppel and the Compulsion of Arbitration’, 60(2), Vanderbuilt Law Review, p. 711.

16
Herbots J. (1999), ‘International Encyclopaedia of Laws, Contracts’, available at: http://www.kluwerlawonline.com/toc.php?pubcode=CONT.

17
Cooke E. (2000), The Modern Law of Estoppel, Oxford University Press, p. 80.

18
Hanotiau, B. (2005), supra note 7.

19
Born, G. (2014), supra note 7, p. 1431.

20
Reynolds M. (2016), ‘Non-Signatory Issues: All for one and one for all’, 37(6), Comparative Law, p. 1: "[N]on-signatories of the contract may be parties under an arbitration clause where the company is part of the corporate group subject to the control of a corporate affiliate that has executed the contract and was involved in the negotiation or performance of the contract. Such a company may take the benefit of the arbitration clause or be brought into the arbitration as a party, notwithstanding the fact that it is not an executed contract."

21
ICC Case No. 5103/1988, Clunet 1988, p. 1206.

22
See Société Kis France et autres v. Société Générale et autres, Paris Court of Appeal, France, 31 October 1989, Revue de l’Arbitrage. (1992), p. 90. Another French decision has clearly mentioned this approach in the following manner: ‘In international arbitration law, an arbitration agreement binds the parties who are directly involved in performance of the contract, provided that their positions and activities create the presumption that they were aware of the existence and scope of such agreement, in order that the arbitration may assume jurisdiction over all economic and legal aspects of the dispute’, Cour d’appel de Paris, 7 December 1994, V2000; see also Cour de Cassation, First Civil Chamber, 27 March 2007 (Petition No. 04-20.842), Société Abs v. Amkor et Autres.

23
Dow Chemical France et al. v. Isover Saint Gobain, ICC Case No. 4131, Interim Award, 23 September 1982 in IX Y.B. Comm. Arb. 131 (1984), para. 102.

24
Derains Y., ‘Is There a Group of Companies Doctrine?’ in Hanotiau B. and Schwartz E. (2010), Multiparty Arbitration, ICC Institute of World Business Law, Dossiers Vol. VII, p. 131.

25
Hosking, J. (2004), supra note 5, p. 294.

26
Poudret J., Besson, S. (2007), supra note 11.

27
Sarhank Group v. Oracle Corporation, 404 F.3d 657 (2nd. Cir. 2005), p. 664.

28
See Mayer P. (2012), ‘The Extension of the Arbitration Clause to Non-Signatories - The Irreconcilable Positions of French and English Courts’, 27, American University International Law Review, pp. 831, 836.

29
Dallah Real Estate & Tourism Holding Company v Ministry of Religious Affairs, Government of Pakistan, [2008] EWHC 1901 (Comm), [2008] App.L.R. 08/01 (1 August 2008); see also Mayer P. (2012), supra note 33, pp. 831, 836; Grierson J., Taok M. (2009), ‘Comment on Dallah v. Pakistan: Refusal of Enforcement of an ICC Arbitration Award against a Non-Signatory’, 26(6) Journal of International Arbitration, pp. 903-907.

30
Dallah Real Estate & Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan, Court of Appeal, EWCA Civ.755. (2009).

31
Dallah Real Estate & Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan, (2010) UKSC 46 on appeal from 2009 EWCA Civ. 755, paras. 132-147.

32
Gouvernement du Pakistan v. Société Dallah Real Estate & Tourism Holding Co, Cour d'appel de Paris, Pôle 1 – Ch. 1, Num. 09/28533, 17 February 2011, available at : https://uk.practicallaw.thomsonreuters.com/8-505-0043?originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)&comp=pluk.

33
AT&T Technologies, Inc. v Communication Workers, 475 U.S. 643, 649 (1986) in Lamm C. and Aqua J. (2003) supra note 9, p. 721.

34
Lamm C. and Aqua J. (2003), supra note 9, p. 713.

35
Thomson-CSF, S.A. v. American Arbitration Assoc. and Evans & Sutherland Computer Corp., 64 F.3d 773, 776 (2d Cir. 1995), at 776.

36
See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985).

37
Ferrario, P. (2009), 'The Group of Companies Doctrine in International Commercial Arbitration: Is There any Reason for this Doctrine to Exist?' (2009) 26(5), Journal of International Arbitration, p. 649; Van Dorn Company D/B/A George A. Milton Can Co. v. Future Chemical and Oil Corporation, and Sovereign Oil Company, Defendants- Van Dorn Company D/B/A George A. Milton Can Co. v. Future Chemical and Oil Corporation, and Sovereign Oil Company, Defendants, 753 F.2d 565 (7th Cir.1985).

38
See Tomolugen Holdings Ltd and another v Silica Investors Ltd (2016) 1 SLR 373.

39
See Kiyue Co. Ltd. v Aquagen International Ptd. Ltd (2003) 3 S.L.R. 130, (2003) S.G.H.C.156.

40
Wei T. (2017), ‘Extending your Reach to the Invisible Parties to the Arbitration Agreement’, available at: https://dentons.rodyk.com/en/insights/alerts/2017/october/5/extending-your-reach-to-the-invisible-parties-to-the-arbitration-agreement.

41
Aloe Vera of America, Inc. v. Asianic Food (S) Pte. Ltd. & Anor, (2006) 3 S.L.R. 174, paras. 64-69.

42
Park W. (2009), supra note 1.