‘3.1. Unlike the situation when in court proceedings a party will be enjoined to protect its interests, in arbitration only those who are parties to the arbitration agreement expressed in writing can appear in the arbitral proceedings either as claimants or defendants. This basic rule is recognized internationally by virtue of Article 2 of the New York Convention.

3.2. Nevertheless, a related person who has not signed the arbitration agreement can sometimes take the benefit of it, or be compelled to arbitrate under it. Whether such would be the case will be determined by the legal theories available under the applicable legal system, in this case English law. The various legal theories have been exhaustively analyzed in the recent treatise by Professor Hanotiau: Complex Arbitrations – Multiparty, Multicontract, Multi-issue and Class Actions (2005).

3.3. The Tribunal has carefully considered the competing submissions. It finds that there is no proper basis under English law for including [Respondent 2] as a party to this arbitration. It has not signed the arbitration agreement nor has it voluntarily agreed to participate in the arbitration. This Tribunal has no power to compel its joinder absent some credible and principled legal basis for doing so derived from English law.

3.4. The G.D. Searle case was the only English authority relied upon. In the Tribunal’s view it is clearly distinguishable and it does not support the Claimant’s position. First the non-signatory wished to join the arbitral proceedings and to have stayed the court proceedings brought in breach of the arbitration agreement. The stay was granted in the exercise of the court’s inherent jurisdiction to prevent the abuse of its processes i.e. by bringing proceedings in flagrant violation of an agreement to settle all disputes by arbitration. Thus the focus was upon the court’s power to order a signatory to an arbitration agreement to terminate court proceedings on matters arising out of the agreement containing the arbitration clause.

3.5. Secondly, and decisively, the non-signatory was able to enforce arbitration because it was able to bring itself within the provisions of the English statute – it was a subsidiary claiming “through or under” its parent.

3.6. That leaves for consideration the US cases relied upon by the Claimant. The Tribunal does not find that they provide a sufficient basis, either individually or collectively, to justify the joinder of [Respondent 2] for the following reasons:

i) English law contains no statutory provisions empowering a Tribunal to compel arbitration against an unwilling non-signatory.

ii) The US cases relied upon have no counterpart in the case law of England. In this respect it is notable that Professor Hanotiau in his work Complex Arbitrations referred to above discusses estoppel in Section V of Chapter 1, pages 20-29. All of the cases cited, where courts have applied the doctrine of equitable estoppel in this context, are American cases. No English cases are referred to.

iii) Like G. D.Searle the US cases all involve situations where the non-signatory desired to participate in the arbitration.

iv) They appear to be based on a liberal view of principles of equitable estoppel whose application is supported by various US federal policies in support of arbitration and a desire to concentrate disputes in the arbitral fora, at least where the non-signatories wished to arbitrate.

v) The conduct relied upon by the Claimant in this case so as to justify the application of principles of equitable estoppel is by no means such as to amount to equitable estoppel in English law. In particular, it is not clear and unequivocal as required by leading cases such as Low v Bouverie [1891] 3 Ch 82, 106. [Respondent 2]’s involvement in all aspects of the formation, implementation and termination of the contract of its subsidiary is equally consistent with a view that it wishes its subsidiary to arbitrate any disputes while, if it has any liability for such conduct, that liability will be determined in an appropriate American court of competent jurisdiction since it is its wish to litigate not to arbitrate. In this respect it is notable that [Respondent 2] has, through its counsel, confirmed that it would not challenge the jurisdiction of such a court.’