Trois sociétés et une personne physique ont engagé une procédure d'arbitrage à l'encontre d'une personne physique sur le fondement d'un contrat conclu entre cette dernière, le premier des demandeurs et une société qui n'était pas partie à l'arbitrage. Parmi les questions préliminaires qui devaient être tranchées par le tribunal arbitral figurait la question de savoir si le tribunal était compétent pour connaître du litige entre les deuxième, troisième et quatrième demandeurs et le défendeur, puisque ces demandeurs n'étaient pas parties au contrat contenant la clause compromissoire. Le deuxième demandeur détenait à 100 % le premier demandeur et était à son tour détenu à 100 % par le troisième demandeur. Celui-ci se trouvait sous le contrôle ultime du quatrième demandeur.

'36. In paragraph 28 of the Interim Award of November . . . 1998, the Arbitrators stated as follows with respect to the question whether they have jurisdiction in the dispute between Claimants No. 2 to 4 and Respondent in the light of the allegation that these Claimants are not parties to the Management Agreement containing the arbitration clause:

This question was fully argued before the Arbitrators and they should have wished to give a definitive answer at the present stage, so that all concerned could know who would be the full participants in the proceedings which, in the light of the rulings on the other issues dealt with in this interim Award, will have to be held in Dubai to determine the substantive dispute raised in the arbitration. On careful consideration, however, the Arbitrators have found that they cannot arrive at a reliable conclusion on the factual material laid before them. They feel little doubt, on studying the legal sources, that the 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.

37. Having now heard and read all such facts as have been provided by the parties, the Arbitrators have concluded the following with respect to jurisdiction . . .:

38. The Arbitration Clause is contained in Clause 18 of the Management Agreement concluded between the [Respondent], [Company X], and [Claimant 1]. The Claimants Nos. 2 to 4 were not parties to the Management Agreement. The purpose of that Agreement was that [Claimant 1] should provide [Company X] with such services as were necessary to implement the Concession Agreement. The provisions of the Management Agreement were limited to all aspects of the promotion, management and operation of the [building comple

39. The Arbitrators accept that, although an arbitration clause normally has effect only in relation to the parties named in the agreement as parties to the agreement, there may exceptionally be circumstances in which parties not expressly mentioned as such in the agreement may nonetheless have to be recognized as parties to it and, therefore, be bound by it and able to avail themselves of rights under it. This includes the right to invoke and the duty to submit to arbitration.

40. The facts of this case are unusual. In most arbitration proceedings, the issue of extension of the clause to non-signatories arises in relation to respondents, which were not formally parties to the arbitration agreement, not in relation to claimants. Moreover, the issue generally arises in relation to companies, not individuals. The Arbitrators are not aware of any reported case in which an individual claimant, rather than a company, has wanted to avail itself of an arbitration clause to which it was not formally a party.

41. These distinctions are not however conclusive. The principles which govern the extension of the clause to non-signatory respondents may generally be considered applicable, mutatis mutandis, to a case where a party - individual or company - tries to avail itself of an arbitration clause to which it did not formally adhere. In other words, whether Claimants Nos. 2 to 4 try to avail themselves of the clause or whether the Respondent would have started arbitration proceedings against [Claimant 1] and would have tried to extend the clause to Claimants Nos. 2 to 4, the answer to the issue should be the same. The principles which apply in the first case also govern the answer to the second and vice versa. This was specifically accepted by counsel for the Claimants during the arbitral proceedings.

42. In order to permit an extension of the clause to non-signatories, arbitrators and national courts always require proof of the existence of the intention - at least implicit - of all the parties, that the non-signatories be parties to the underlying contract and its arbitration clause. Although this is self-evident, it is worth emphasising that the intention that the non-signatories be party to the agreement must be common to the latter and the other party(ies) to the arbitration clause.

43. The existence of such an intention - to the extent it is only implicit - is to be found in the role the non-signatories have played in the conclusion and performance of the agreement. As the Arbitrators pointed out in the landmark case Isover Saint-Gobain v. Dow Chemicals (ICC award no. 4131, Clunet, 1983, 899):

the arbitration clause expressly accepted by certain of the companies of the group should bind the other companies which, by virtue of their role in the conclusion, performance, or termination of the contracts containing said clauses, and in accordance with the mutual intention of all parties to the proceedings, appear to have been veritable parties to these contracts or to have been principally concerned by them and the disputes to which they must give rise.

44. In this respect, one element which is also taken into consideration by Arbitral Tribunals to determine the implicit intention that a non-signatory be party to the agreement is whether the non-signatory may be deemed to have agreed to assume the obligations flowing from the underlying agreement, in the same manner as the parties who have signed the agreement.

45. In some cases, the Arbitral Tribunal has extended the clause to a non-signatory on the basis of the confusion entertained by the various companies of the group (signatories and non-signatories) in the conclusion and the performance of the agreement (see for example ICC award in case no. 5103 of 1988, Clunet, 1988, 1207 and note G.A.A. in which the Arbitral Tribunal has pointed out that the companies of the group have all "participé, dans une confusion aussi réelle qu'apparente, à une relation contractuelle internationale complexe dans laquelle l'intérêt du groupe l'emportait sur celui de chacune d'elles").

46. On the other hand, it is unanimously agreed that the fact that those who have signed the arbitration agreement and the non-signatories belong to the same group or the domination of a shareholder are never in themselves sufficient to justify an extension of the clause (ICC case no. 5721 of 1990, Clunet, 1990, 1020. See also I. Fadlallah, "Clauses d'arbitrage et groupes de sociétés, Travaux du Comité français de droit international privé", 1984-1985, p. 105).

47. Unless circumstances indicate the existence of an intention of both signatories and non-signatories that the latter be parties to the arbitration clause, an Arbitral Tribunal will not accept to extend it to parties who have not signed the arbitration agreement (see for example ICC award no. 7626 of 1995, Yearbook, 1997, 132 in which the Arbitral Tribunal, citing the precedent Adams v. Cape Industries plc. [1990] 1 Ch. 433, has decided that it was not entitled "to lift the corporate veil as against a respondent company (ndrl: a non-signatory company of the same group which plaintiff wanted to join to the arbitration) which is a 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 (ndrl: the company signatory of the clause) rather than the defendant company. Whether or not this is desirable, the right to use a corporate structure in this manner is inherent in our corporate law." The only exception is the hypothesis of fraud, for example when it is evident that the company which is a party to the arbitration agreement was intentionally and, therefore, fraudulently deprived of any substance or where a non-signatory owner of the group has entertained a total confusion between its various companies in the eyes of third parties and has used fraudulent manoeuvres to try to avoid being personally bound by its undertakings (see for example ICC award in case no. 5730 of 1988, Clunet, 1990, 1029 and Fadlallah op. cit. p. 105).

48. With respect to Claimants Nos. 2 and 3, it is clear that they were in no way involved, either from the beginning or later on, in the conclusion or carrying out of the Management Agreement. They had very different activities. Their only involvement with [Claimant 1] was that, from 1984 and, thus, subsequent to the conclusion of the Management Agreement in 1978, [Claimant 1] came to be owned by Claimant No, 2, which again was owned by Claimant No. 3. This subsequent financial connection between the three companies was unknown to the Respondent. In these circumstances, the Arbitrators find that they have no basis for accepting jurisdiction over the claims raised by Claimants Nos. 2 and 3.

49. With respect to Claimant No. 4, he was in some degree a party to the original discussions with the Respondent about the construction and management of the [building complex] and certainly to the conclusion of the Management Agreement, and he has been involved with the activity of Claimant No. 1 throughout to the greatest extent possible, given his widespread business interests and the limited activity of Claimant No. 1. This was also known to the Respondent, whose representative, Mr. . . ., quite naturally took contact with Claimant No. 1 when he wanted to discuss the termination of the Management Agreement.

50. However, in the light of the case law restated in paragraphs 43 to 47, we do not find that the facts of the case found an inference of an implicit intention on the part of both the Respondent and Claimant No. 4 that the latter should have rights and obligations to the Management Agreement or more particularly under the arbitration clause contained therein. Claimant No. 4 could undoubtedly have chosen to be and would undoubtedly have been accepted as a party to the Management Agreement together with or in lieu of [Claimant 1]. Instead, he chose to exercise this activity solely through [Claimant 1], which choice undoubtedly was the result of a weighing of his own interest. He could also have chosen to take a very active role in the (limited) management activities of [Claimant 1] relating to the [building complex] and to have [Claimant 1] as a purely formal holding company of those activities. He chose to take a distant and merely supervisory role, and cannot now be allowed to assert the contrary, just because it may be in his interest to do so. The Arbitrators also note in this respect that Claimant No. 4 did not join himself as a party in the first arbitration introduced by [Claimant 1] against the Respondent. They do not see, therefore, any reason to lift the corporate veil of [Claimant 1] in order to permit the extension of the arbitration clause to Claimant No. 4.

51. Therefore, the Arbitrators conclude that they have no jurisdiction to hear the case of Claimant No. 4. That, of course, also applies to the Respondent's counterclaim against him.'