
Multiparty Arbitration
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Given the increasing number and complexity of commercial transactions, more and more international arbitrations involve disputes arising from, or connected with, more than one contract and more than two parties. Such disputes involve many complex issues relating in particular to jurisdiction and merits: Mayan arbitration clause be extended to non-signatory party or parties? To what extent can one bring to a single arbitration proceeding the various parties who have participated in a single economic transaction through several contracts? If separate arbitration proceedings need to be started, can they be consolidated and under what conditions? Can a respondent join another party or parties, be they privy to the arbitration agreement or third parties? Can a respondent in the arbitration proceedings bring a claim against another respondent? What are the consequences of the answers to the above questions and others for the enforceability of the award? Is class wide arbitration possible and desirable? How does it work?
Dossier VII of the ICC Institute, Multiparty Arbitration, seeks to encourage reflection on these issues and many others recurrent in complex multiparty - multi-contracts arbitrations.
The contributors to this Dossier include:
- Gerald Aksen
- Christian Albanesi
- Sebastien Besson
- Stephen R. Bond
- Kristof Cox
- Yves Derains
- Jose Ricardo Feris
- Simon Greenberg
- Fernando Mantilla Serrano
- Pierre Mayer
- Georgios Petrochilos
- S.I Strong
- John M. Townsend
- Karim Youssef
This Dossier VII, Multiparty Arbitration, is published under the auspices of the ICC Institute of World Business Law, chaired by Serge Lazareff, distinguished Member of the Paris Bar. With this publication, the ICC Institute of World Business Law fulfils its dual mission: training and acting as a think-tank for the International Chamber of Commerce particularly in the field of arbitration.
The International Chamber of Commerce, the World Business Organization, based in Paris, is the global leader in the development of standards, rules and reference guides for international trade.
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Content
- Cover
- Title Page
- Copyright Page
- Table of Contents
- FOREWORD
- INTRODUCTION
- CHAPTER 1 MULTIPLE PARTIES AND MULTIPLE CONTRACTS: DIVERGENT OR COMPARABLE ISSUES?
- 1. INTRODUCTION
- 2. FIRST PROPOSITION: THE 'GROUP OF COMPANIES' DOCTRINE AND THE 'GROUP OF CONTRACTS' DOCTRINE ARE TWO DIFFERENT THINGS
- a. Each doctrine raises different fundamental questions
- b. Importance of economic considerations differs under each doctrine
- c. Procedural aspects
- 3. SECOND PROPOSITION: THE 'GROUP OF COMPANIES' DOCTRINE AND THE 'GROUP OF CONTRACTS' DOCTRINE ESSENTIALLY RAISE THE SAME ISSUES
- a. Overlap of multiple parties and multiple contracts
- b. Consent
- c. Diminishing relevance of national laws
- d. A common solution to situations requiring application of both doctrines
- 4. CONCLUSION
- CHAPTER 2 DÉPEÇAGE OR CONSOLIDATION OF THE DISPUTES RESULTING FROM CONNECTED AGREEMENTS: THE ROLE OF THE ARBITRATOR
- 1. INTRODUCTION
- 2. LEGISLATIVE AND INSTITUTIONAL RULES AS A SOURCE OF AUTHORITY FOR CONSOLIDATION OR DÉPEÇAGE
- 3. DERIVING AUTHORITY FOR CONSOLIDATION OR DÉPEÇAGE FROM THE ARBITRATION AGREEMENT ITSELF
- 4. CONCLUSION
- CHAPTER 3 DÉPEÇAGE OR CONSOLIDATION OF DISPUTES RESULTING FROM CONNECTED AGREEMENTS: THE ROLE OF THE JUDGE
- 1. INTRODUCTION
- 2. INSURMOUNTABLE OBSTACLES?
- 3. EXCEPTION FOR 'INSEPARABLE' DISPUTES
- a. Joinder and intervention
- b. Tierce opposition
- 4. CONCLUSION
- CHAPTER 4 THE LIMITS OF CONSENT: THE RIGHT OR OBLIGATION TO ARBITRATE OF NON-SIGNATORIES IN GROUP OF COMPANIES
- 1. CONSENT?
- a. Doubt
- b. Beyond doubt
- c. Importance of the inquiry into limits of consent
- d. Approach
- e. Gradation of the role of consent in jurisdictional assessment
- 2. CONSENT IN CONTEXT
- a. The dosage of consent in the 'group of companies' doctrine
- b. Global assessment of jurisdiction
- c. Changing roles of contextual elements (and uncertainty)
- 3. OBJECTIVE ASSESSMENT OF JURISDICTION
- a. Involvement in performance per se and the notion of knowledge under French law
- 4. NATIONAL CONTRACT LAW
- a. US law
- b. National contract principles in continental case law
- c. Consent indifferent
- 5. EQUITY
- a. '[T]o remedy a grievance there without changing the general legal arrangement'
- b. Ruling on jurisdiction ex aequo et bono
- c. Realism in decision making as a limit on the rigorous search for consent
- 6. RELEVANCE OF THE INQUIRY INTO THE LIMITS OF CONSENT IN EMERGING JURISDICTIONS
- 7. RATIONALIZING THE DECLINING RELEVANCE OF THE REQUIREMENT OF CONSENT
- a. Sophistication of jurisdictional assessment
- b. From consent per se to a rule of reason
- c. Diversification of the sources of the right or obligation to arbitrate
- 8. LEGALISM REDUX
- a. Complexity of the tasks of arbitrators and courts
- b. General principles of law
- c. Essentialism of effective control
- d. Applicable law
- 9. CONSENT REDUX?
- a. The decline of consent
- b. Is it good?
- c. Contractual management of jurisdictional exposure
- 10.THE FUTURE: CONSENT AS A DEFAULT CRITERION
- CHAPTER 5 EXTENDING AN ARBITRATION CLAUSE TO A NON-SIGNATORY CLAIMANT OR NON-SIGNATORY DEFENDANT: DOES IT MAKE A DIFFERENCE?
- 1. INTRODUCTION
- 2. WILLING SIGNATORIES
- 3. UNWILLING SIGNATORIES
- 4. CONSENT
- 5. CONCLUSION
- CHAPTER 6 EXTENSION OF THE ARBITRATION CLAUSE TO NON-SIGNATORY STATES OR STATE ENTITIES: DOES IT RAISE A DIFFERENCE?
- 1. PERSONAL SCOPE OF ARBITRATION AGREEMENTS CO-EXTENSIVE WITH SUBSTANTIVE LAW OBLIGATIONS
- 2. IMPLICIT INTENT TO BE BOUND: CONTRACT DISTINGUISHED FROM ADMINISTRATIVE SUPERVISION
- 3. PIERCING THE VEIL: ABUSE OF LEGAL PERSONALITY
- CHAPTER 7 IS THERE A GROUP OF COMPANIES DOCTRINE?
- 1. INTRODUCTION
- 2. THE REFERENCE TO A GROUP OF COMPANIES IN ARBITRATION CASE LAW
- 3. THE LIMITED EFFECT OF THE EXISTENCE OF A GROUP OF COMPANIES
- a. The group of companies: an element of the factual matrix revealing the intent of the parties
- b. The role of a group of companies in the case of a joinder or consolidation
- 4. CONCLUSION
- CHAPTER 8 PIERCING THE CORPORATE VEIL: BACK ON THE RIGHT TRACK
- 1. INTRODUCTION
- 2. PIERCING THE CORPORATE VEIL IN THE CONTEXT OF ARBITRATION
- 3. PIERCING THE CORPORATE VEIL AND THE GROUP OF COMPANIES DOCTRINE
- 4. PIERCING THE CORPORATE VEIL IN ARBITRAL AWARDS
- 5. PIERCING THE CORPORATE VEIL IN SOME JURISDICTIONS
- 6. AN ATTEMPT TO DEFINE THE RIGHT TRACK AND TO HIGHLIGHT POSSIBLE ISSUES FOR REFLECTION
- 7. CONCLUSIONS
- CHAPTER 9 CONSOLIDATION, JOINDER, CROSS-CLAIMS, MULTIPARTY AND MULTICONTRACT ARBITRATIONS: RECENT ICC EXPERIENCE
- 1. INTRODUCTION
- 2. CONSOLIDATION
- 3. MULTICONTRACT ARBITRATIONS
- 4. JOINDER AND THIRD-PARTY INTERVENTION
- a. joinder
- b. Third-party intervention
- 5. CROSS-CLAIMS
- 6. CONCLUSION
- CHAPTER 10 CLASS ARBITRATION OUTSIDE THE UNITED-STATES: READING THE TEA LEAVES
- 1. INTRODUCTION
- 2. CONFLICTS REGARDING CLASS ARBITRATION - REAL AND PERCEIVED
- a. Economic issues
- b. Jurisprudential issues
- c. Arbitral issues
- 3. POSSIBLE FORMS OF ARBITRATION-BASED COLLECTIVE RELIEF OUTSIDE THE UNITED STATES
- a. Alternative forms of collective arbitration
- b. Creating or adapting procedures for collective arbitration
- 4. FORCES INFLUENCING THE DEVELOPMENT OF COLLECTIVE ARBITRATION
- a. Forces driving the development of class or collective arbitration
- b. Arbitral policy
- c. Policies regarding collective relief
- 5. CONCLUSION
- CHAPTER 11 CLASS ACTION IN ARBITRATION AND ENFORCEMENT ISSUES: AN ARBITRATOR'S POINT OF VIEW
- 1. IS THERE SUCH A THING AS INTERNATIONAL CLASS ARBITRATION?
- 2. WHAT DOES IT LOOK LIKE?
- 3. IS IT VERY DIFFERENT FROM OTHER MULTI-PARTY ARBITRATIONS?
- 4. HOW ARE THE ARBITRATORS SELECTED?
- 5. HOW DO YOU MANAGE MANY DIFFERENT LAW FIRMS?
- 6. HOW MUCH IS WITHIN THE ARBITRATOR'S CONTROL?
- 7. WHAT IS THE ROLE OF THE COURTS IN CLASS ARBITRATIONS?
- 8. IS AN AWARD DECIDING ON THE CONSTRUCTION OF AN ARBITRATION CLAUSE IN FAVOUR OF CLASS ARBITRATION FINAL?
- 9. WHAT WILL THE SUPREME COURT DECIDE?
- CHAPTER 12 THE EFFECT OF AWARDS RENDERED IN MULTIPARTY/MULTICONTRACT SITUATIONS
- 1. INTRODUCTION
- 2. BRINGING ALL PARTIES AND/OR CONTRACTS INTO A SINGLE PROCEDURE
- a. First situation: two co-respondents, both subject to an unfavourable award, reside in different countries
- b. Second situation: the award is rendered in one country and enforcementis sought in another
- 3. SPLITTING THE DISPUTE INTO SEVERAL PROCEDURES
- a. Two or more contracts involving the same parties
- b. Different parties
- CONCLUDING REMARKS
- KEY-WORDS INDEX
- TABLE OF CASES
- About the authors
- Gerald Aksen
- Christian Albanesi
- Sébastien Besson
- Stephen R. Bond
- Kristof Cox
- Yves Derains
- José Ricardo Feris
- Simon Greenberg
- Bernard Hanotiau
- Serge Lazareff
- Fernando Mantilla Serrano
- Pierre Mayer
- Georgios Petrochilos
- Eric A. Schwartz
- S.I. Strong
- John M. Townsend
- Karim Youssef
- ICC at a glance
- Some ICC Specialized Divisions
- Source Products for Global Business
- Back Cover
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