Third Parties in International Commercial Arbitration Oxford International Arbitration Series

The role of the third party has fast become a pervasive problem in the field of international arbitration, as parties not bound by an arbitration agreement are seen to be excluded from the process, even if they clearly maintain a legal or financial interest in a dispute between other persons who are bound by an arbitration clause. Third Parties in International Commercial Arbitration considers the role of third parties in arbitration agreements and proceedings and in arbitral awards and covers significant theoretical and practical questions. These questions include: which is the proper party in arbitration; whether a tribunal can assume jurisdiction over claims by or against a party that is not designated in the arbitration clause (third-party claims); whether a party can rely on the findings of a previous arbitral award in subsequent proceedings against a third party; and whether a third party to an arbitral award can rely on its findings in proceedings against a party to the award. Adopting a comparative, international approach, third-party claims are discussed in relation to many areas such as assignment and other forms of transfer; agency (actual and apparent) and representation; third-party beneficiary; incorporation by reference; corporations and partnerships; in guarantees and other security agreements; construction contracts and string contracts; arbitral estoppel; group of companies and alter ego; implied consent and consent by conduct; name-borrowing; third parties claiming through or under an arbitration clause or several compatible arbitration clauses. The book also discusses issues about arbitral effect (res judicata and issue estoppel) and third parties. In Third Parties in International Commercial Arbitration Brekoulakis consolidates the discussion on issues where reasonable agreement among scholars and tribunals exists, but at the same time proceeds to identify those areas that require further convergence. He examines and classifies all the existing theories and legal bases on third-party claims in clearly defined groups and puts forward a new systematic approach to the discussion to be used as an alternative to the existing theories.

1. Introduction: Setting the Framework of the Discussion. a. The Issue. b. Scope and Limitation. c. Existing Literature and Contribution of the Work. d. Structure of the Work. e. Final Remarks. I:Legal Bases for Third-Party Claims I: Traditional Theories of Contract and Corporate Law, Terms in Arbitration Clauses, Rules and Laws. 2. Third-Party Claims Pursuant to Traditional Theories of Contract and Corporate Law. a. Assignment and Other Forms of Transfer, Including the Cases of Bills of Lading, Subrogation, Merger and Transfer of Debt. b. Representation: Agency and Apparent Authority. c. Third-Party Beneficiary. d. Incorporation by Reference. e. Third Party Claims Pursuant to Principles of Corporate Law. f. The 'Grey Area': Third Party Situations that Fall Short of Privity and will not Normally Allow for Third-Party Claims. 3. Further Legal Bases for Third-Party Claims: Arbitration Agreements, and Arbitration Rules and Laws. a. Arbitration Agreements Allowing for Third-Party Claims. b. Third-Party Claims Based on Institutional Rules and Arbitration Laws. II. Legal Bases for Third-Party Claims II: Implied Consent and Non-Signatory Theories. 4. The Doctrine of Arbitral Estoppel. a. Overview of the Doctrine. b. The Two Alternative Versions of the Doctrine of Arbitration Estoppel. c. Does Arbitral Estoppel Depart from the Consensual Origins of Arbitration?. d. Concluding Observations on the Arbitral Estoppel Doctrine. 5. The Doctrine of Group of Companies. a. Overview of the Doctrine. b. Legal Basis of the Doctrine. c. Conditions for Application of the Doctrine. d. Applicable Law. e. The Theories of Alter Ego, Lifting teh Corporate Veil, and Group of Companies: Similarities and Distinctions. 6. Critique on the 'Non-Signatory Theories' and the Contractual Approach to Third Parties. a. Interrelatedness of the Theories Concerning Non-signatory Parties. b. Positive Contribution of Non-Signatory Theories. c. Conceptual Limitations of the Non-Signatory Theories. d. Conclusions on the Non-Signatory Theories and Conceptual Approach. III. A Jurisdictional Approach to The Discussion on Arbitratioin and Third Parties. 7. Why and Under Which Conditions Tribunals Can Assume Jurisdiction Over a Third-Party Claim. a. Disputes before a Tribunal may Affect the Jurisidictional Position of Third Parties. b. Tribunals may Assume Jurisdiction over Third-Party Claims that are Inseperable from the Main Dispute in Arbitration Proceedings. c. Rectifying the Artificial Discepancy between Commercial Reality and the Scope of Arbitration Proceedings. d. Summing up the Jurisdictional Approach. e. 'Third-Party' Claims Put Forward by A Party in Arbitration, The Peterson Farms Scenario. 8. When a Tribunal Should Assume Jurisdiction Over a Third-Party Claim. a. Exercising its Discretion: When should a Tribunal Assume Jurisdiction over a Third-Party Claim. b. Further Issues in Relation to the Jurisdictional Approach. c. Advantages of the Jurisdictional Approach and Concluding Remarks. IV. Arbitral Awards and Third Parties. 9. The Legal Effects of Arbitral Awards. a. The Arbitral Effect. b. The Current Legal Framework of Arbitral Effect. c. Arbitral Awards and Third Parties. d. The 'Same Parties' Requirement: Rule and Exceptions. e. Why the Current Legal Framework does not Work: The need for a Broader Third-Party Effect. 10. The Suggested Third-Party effect of Arbitral Awards. a. Content and Characteristics of the Suggested Third-Party Effect of Arbitral Awards. b. Examples of Third-Party Effect of Arbitral Awards in Case Law. c. Distinction between Third-Party Effect and Res Judicata. d. Relevant Factors and Circumstances

Dr Stavros L. Brekoulakis is an attorney-at-law and a lecturer in International Dispute Resolution at the School of International Arbitration, Queen Mary University of London. He studied law at Athens and London and obtained an LLB from Athens, his LLM from King's College London, and his PhD degree from Queen Mary University of London. He lectures on International and Comparative Commercial Arbitration, Construction Arbitration, Conflict of Laws and International Commercial Litigation. He also convenes a module on arbitration advocacy and lectures on legislative drafting and arbitration. His research output includes books and articles in leading legal journals. Brekoulakis also works and advises on dispute resolution matters. His legal expertise focuses on arbitration in the context of international business transactions, affecting construction projects, shipping and insurance contracts, international trade, investments, trading agreements with developing countries, Eastern Europe and EC law.