KluwerArbitration
Document information
Publication
The Evolution and Future of
International Arbitration
Bibliographic reference
Audley Sheppard, 'Chapter
10: Third Party Non-
Signatories in English
Arbitration Law', in Stavros L.
Brekoulakis , Julian D. M. Lew
, et al. (eds), The Evolution
and Future of International
Arbitration, International
Arbitration Law Library,
Volume 37 (© Kluwer Law
International; Kluwer Law
International 2016) pp. 183 -
198
P 183 10.4 It is a legitimate criticism of arbitration that it is not the most efficient procedure for
P 184 determining related disputes that arise out of closely connected contracts or implicate
P 184 Departmental Advisory Committee on Arbitration considered it inappropriate to legislate
P 185
© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
Chapter 10: Third Party Non-Signatories in English
Arbitration Law
Audley Sheppard
(*)
I INTRODUCTION
10.1 One of the most controversial issues in international commercial arbitration is the
effect of arbitration agreements on non-signatories. (1)
10.2 In English arbitration law, (2) the agreement to arbitrate is a separate agreement,
distinct from the matrix agreement in which it is usually located. (3) It has its own
governing law, which determines which parties are bound by that agreement to arbitrate.
(4) The English courts take a conservative approach to determining whether third party
non-signatories are party to or otherwise bound by an agreement to arbitrate, applying
well established principles that apply to determining the parties to matrix contracts
generally, (5) with some limited statutory extensions. (6) Beyond this, it is not possible to
join additional parties without their agreement.
10.3 By "third party non-signatories", I mean entities that do not appear prima facie to be
an original party to the arbitration agreement. They may be in effect an original party (e.g.
in the case of a principal of an agent), but more typically they will seek to be added as a
party subsequently, usually as a respondent, but sometimes as a claimant. (7)
third parties, such as employer/contractor/sub-contractor disputes. Some project
documentation seeks to overcome this difficulty by including joinder and consolidation
provisions in each of the connected contracts, but these have rarely been tested. The
question posed by Professor Brekoulakis in his thought provoking Chapter 8 above is
whether it would be better to discard a consent based approach in favour of a functional
doctrine. (8) In this Chapter, I summarise the current English law approach and comment
on Professor Brekoulakis's thesis.
II STATUTORY CONTEXT
10.5 I first consider the legislative context, which includes (A) the English Arbitration Act
1996, and (B) the Human Rights Act 1998.
A English Arbitration Act 1996
10.6 The starting point when considering English law must be the Arbitration Act 1996 (the
"Act"). There are four aspects of the Act which I consider to be of particular relevance.
10.7 First, a possible constraint on a third party non-signatory being bound by an
agreement to arbitrate is that the majority of the Act applies only where the arbitration
agreement is in writing: section 5. However, it does not matter whether or not the
arbitration agreement (or the matrix contract in which it is found) is signed by the parties
(section 5(2)(a)). In most cases, it is not difficult to identify an arbitration agreement in
writing: the more critical factual and legal question is whether a party is bound by that
arbitration agreement. (9) In limited circumstances, an arbitration agreement will be
implied, (10) with the relevant test for the implication of an arbitration agreement being
the same as for the implication of a contract: proof that the parties would have acted in
the same way even if they had formally entered into a contract. (11)
10.8 Secondly, "parties" to an arbitration agreement is defined to include "any person
claiming under or through a party to the agreement": section 82(2). Accordingly, the Act
envisages that a third party non-signatory may be bound by an arbitration agreement, but
only if it is under or through an original party. This has been interpreted to permit claims
to be brought by or against principals, assignees and insurers. A "mere legal or commercial
connection" is not sufficient, and absent the relevant nexus, a number of the provisions of
the Act (including a stay of litigation commenced in breach of an arbitration agreement)
are unavailable. (12)
10.9 Thirdly, the Act does not expressly provide for joinder of third parties. The
for this. (13) However, it is not prohibited and parties may provide for joinder by
agreeing certain arbitration procedural rules (e.g. LCIA Arbitration Rules, Article 22.1(viii))
(14) or expressly providing for joinder in their contracts. In all such cases, a third party
cannot be joined without its prior or concurrent consent. (15)
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 10.10 Fourthly, the Act limits the tribunal's ability even to case manage multiparty disputes
by stating that the tribunal has no power to order consolidation of proceedings or
concurrent hearings unless the parties agree: section 35. In limited circumstances, a
tribunal may be able to pause the arbitration to await the outcome of other proceedings.
(16)

B Human Rights Act 1998

10.11 When considering the extension of an arbitration agreement to third party non-
signatories, it is important to be mindful of the European Convention on Human Rights
("ECHR"), (17) which is incorporated into English law by the Human Rights Act 1998. Article
6(1) ECHR provides that "everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law". A valid arbitration agreement has
been held to constitute a waiver of the right to a public hearing as long as it is made freely
(18) and it is clear and unequivocal. (19) The same requirement must apply to third party
non-signatories.

III ACCEPTED CONTRACTUAL AND OTHER DOCTRINES

10.12 I now turn to the traditional contractual and other principles that the courts have
applied to extend an arbitration agreement to a third party non-signatory, namely (A)
agency, (B) novation, (C) assignment, (D) operation of law (E) merger and succession, (F)
P 185 third party beneficiaries. The English courts' conservative approach is heavily influenced
P 186 by its contractual characterisation of arbitration and adherence to the doctrine of
privity, which provides that only a party to a contract can acquire rights or be subjected to
liabilities under it, with very limited exceptions. (20)

A Agency
10.13 Like many legal systems, under English law a principal is bound by an agreement
entered into by its agent. Accordingly, an arbitration agreement entered into by an agent
will bind its principal. (21) The legal effect is that the principal is and always has been the
true party to the contract. (In that sense, it is not a third party non-signatory.)
10.14 The agent must have actual authority or apparent/ostensible authority. (22) Actual
authority may be conferred pursuant to an agreement between the agent and the principal
or it may be implied from conduct. (23) Whether an agent is held to have apparent or
ostensible authority is fact specific and the circumstances are often equivocal. A finding of
apparent authority is justified where the putative agent is represented or held out to have
authority, even if it does not. (24)
10.15 An example of the application of actual authority is the case of Toyota Tsusho Sugar
Trading Ltd v Prolat SRL, (25) in which the court considered whether or not a tribunal
appointed under the Refined Sugar Association's arbitration rules had jurisdiction in
respect of a dispute arising out of an agreement for the sale and purchase of sugar. The
defendant contended that it was not party to the arbitration agreement. The argument
turned on whether Mr Dibranco acted as agent for the defendant when he signed the
contracts containing arbitration agreements. (26) Cooke J had no difficulties deciding that
the agent had actual authority to negotiate the contracts on which the claimant relied to
initiate the arbitral proceedings and therefore the principal was bound.
10.16 Consistent with the doctrine of separability, in practice, the English courts will carry
out a separate analysis to determine whether or not the agent had authority to enter into
the arbitration agreement. Thus in the Toyota case, it was common ground that there was a
contract in place – the question for the court was whether that contract contained an
arbitration agreement which bound Toyota and Prolat. (27)
10.17 The law of agency is an orthodox and uncontentious legal doctrine by which a non-
signatory is bound by the terms of a contract and its application to arbitration agreements
is not particularly noteworthy. The principal has consented to be bound or deemed to have
consented as a result of its own representations or conduct as to the agent's authority.
P 186 There has never been a serious suggestion that this would fall foul of Article 6 of the ECHR.
P 187
10.18 Agency may give rise to some practical procedural considerations. For example,
under English law, a claimant must sue the disclosed principal and not the agent. (28) If
the principal is not disclosed (thinking the agent is the principal, or not knowing the
specific identity of the principal), then, in practice, the claimant can only sue the agent.
The undisclosed principal has the right to disclose its identity and intervene in the
proceedings involving its agent. However, if disclosed subsequent to proceedings have
been commenced, a claimant is not required to sue the principal or forbear from suing the
agent. (29) However, if it does decide to join the principal, it must of course give notice to it
and the tribunal.

B Novation
10.19 Novation is the creation of a new contract between two existing counterparties and a
third party, with the express agreement of all the counterparties. (30) Novation of the
matrix contract has the effect of novating the arbitration agreement, such that it is binding

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 on the incoming party, and releases the original party from the right and obligation to
arbitrate. (31) The effect of the novation is to "repeople the original contracts, leaving their
provisions (including their dates) unchanged". (32) The incoming party is required to
arbitrate disputes as if it had been a counterparty from the start, thereby "stepping into
the shoes" of the original party. (33)
10.20 The law of novation is an orthodox and uncontentious legal doctrine, premised on
consent, which is equally applicable to arbitration agreements, without any risk of ECHR
implications.
10.21 Novation should cause fewer procedural difficulties than assignment (see below)
because all the parties have consented to the new entity becoming a party to the contract
and also any ongoing arbitration. In Charles M Willie v Ocean Laser Shipping, (34) Willie
agreed to sell its vessel, the "Smaro" to Roussos Sons pursuant to a clause in a sale of
goods contract which permitted delivery of the vessel to either Roussos or "a company to
be nominated". Roussos nominated Ocean and the bill of sale was made in Ocean's name.
Roussos commenced arbitration against Willie pursuant to the arbitration provisions in the
original contract following allegations that the ship was damaged at the time of delivery.
The issue before the court was whether arbitration proceedings had been properly
commenced. However, obiter, Rix J (as he then was) noted that on these facts, novation (not
assignment) had occurred, and Ocean had been joined to the original contract as an
P 187 additional party. Rix J suggested that in these situations, a third party need only serve
P 188 notice on the parties and the tribunal in order to be joined to an existing arbitration.
(35)

C Assignment
10.22 In English law, assignment is a legal concept distinct from novation. It is the transfer
of the benefits of a contract, but not the burden (i.e. the assignor's obligations), (36)
although there are exceptions to this rule, such as in respect to conditional benefits. (37)
Assignment may take place with or without the agreement of the counterparty (ies). An
assignee does not "step into the shoes" of the transferor in the same was as described
above.
10.23 Assignments are classified as legal, equitable or statutory. To be a legal assignment,
it must comply with the Law of Property Act 1925, which permits the assignment of any debt
or choses in action if the assignment is made in writing and effected by notice to the other
party, the assignment debtor. Equitable assignments are assignments that do not meet the
requirements of a legal assignment, which typically means that no written notice of the
assignment is given to the assignment debtor. No consent is required from the debtor for
either a legal or an equitable assignment to operate. Statutory assignments take place by
operation of law and take effect automatically, in particular in the context of insolvency
and insurance (see below).
10.24 Whilst it has not always been the case, (38) it is now generally assumed that an
assignment of a contract also implies the transfer of an arbitration agreement contained
within that contract, (39) unless the arbitration clause is so worded as to make it clear that
it only binds the original parties. (40) The rationale is that the arbitration agreement
constitutes part of the economic value of the assigned contractual rights. (41)
10.25 An assignee must pursue a claim against the contractual counterparty (ies) in
arbitration pursuant to the conditional benefit exception, namely that an assignee cannot
enforce the benefit or assert the cause of action without "recognising the obligation to
arbitrate". (42) In English litigation, an equitable assignee is required to join the assignor as
a co-claimant or (if it will not agree) as a co-defendant, (43) however, this is rarely done in
P 188 arbitration. If the assignment occurs after arbitration has commenced, then in order to
P 189 become a party to the proceedings, the assignee must notify the other side and the
tribunal that it wishes to become a party and submit to the jurisdiction of the arbitrator.
(44)
10.26 An assignment does not transfer the burden of a contract and therefore an assignee
cannot be forced to be a respondent: a claim must be pursued against the assignor. Of
course, an assignee may choose to submit to the jurisdiction of the arbitral tribunal; and, if
an assignee initiates arbitration proceedings, counterclaims may then be brought against
it.
10.27 In summary, the law of assignment is long established and accepted in England, but it
does not require consent and therefore the participation of the assignee as a claimant in
the face of opposition from the original contractual counterparty (ies) has a less strong
foundation. Because the assignee can only be a claimant and not a respondent, by
definition it is agreeing to arbitration, therefore there would be no ECHR implications.

D Operation of Law
10.28 Contractual rights and obligations, including arbitration agreements, may also be
transferred by operation of law, pursuant to certain statutes. For example, a trustee in
bankruptcy will take the benefit of, and be bound by, an arbitration agreement previously
entered into by the bankrupt party. (45)
10.29 Similarly, an insurer has a statutory right to step into the shoes of a party to a

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© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 contract (to subrogate the right) and recover from a third party monies paid to the
contractual party under a contract of insurance. (46) Such transfers also include transfer of
any arbitration agreement in the existing contract, such that the insurer would have to
pursue its subrogated rights against the contractual counterparty by way of arbitration.
(47)
10.30 Transfer of contractual rights by operation of law is an orthodox and uncontentious
legal doctrine, based on legislation, which is equally applicable to arbitration agreements,
without any risk of ECHR implications.

E Merger and Succession

10.31 An original party may be substituted as a result of a corporate merger or corporate
reconstruction. (48) For example, in Eurosteel Ltd v Stinnes AG, (49) English arbitration
proceedings were commenced by BL, a German company, against Eurosteel. BL later
merged with Stinnes. BL was then dissolved, prior to notice being given by Stinnes to either
Eurosteel or the tribunal. Stinnes challenged jurisdiction. It was common ground that
P 189 under German law, Stinnes was the "universal successor" of BL, i.e. that it succeeded
P 190 automatically to all the rights, assets and liabilities of BL. Longmore J concluded that
the arbitration continued against Stinnes, without the need for notice to have been given
prior to BL's dissolution.

F Third Party Beneficiaries

10.32 The English court's strict adherence to the doctrine of privity has been criticised,
even by the courts. For example, in Lafarge Redlands Aggregates Ltd v Shepherd Hill Civil
Engineering Ltd, (50) Lord Hope considered the doctrine in the context of the construction
industry where, commonly, separate contracts exist between the employer and main
contractor, and between the main contractor and each subcontractor, each with their own
dispute resolution provisions. While this is perfectly sensible for delineating the relative
responsibilities and obligations of the parties, the limitations of the doctrine of privity are
"thrown into sharp focus where a dispute arises which is of concern to all three parties and
arbitration is the preferred means of resolving it". (51) Lord Hope noted that "the doctrine
of privity of contract inhibits the formation of any kind of implied contractual
relationship.. ", (52) and therefore, there is a high risk of multiple claims relating to the
same or similar issues of fact and/or law. The Contracts (Rights of Third Parties) Act 1999
(the "CROTPA") was enacted to address some of these criticisms.
10.33 The CROTPA creates a statutory exception to the doctrine of privity and allows third
party non-signatories to enforce benefits given to them in contracts to which they are not
party. (53) There was initial reluctance to include arbitration within the scope of the act on
the basis of concerns that arbitration agreements "cannot operate satisfactorily unless any
entitlement of the third party to enforce the arbitration agreement carries with it a duty on
the third party to submit to arbitration". (54) Despite these initial reservations, the CROTPA
does have specific application to arbitration as provided for in section 8.
10.34 Section 1 of the CROTPA gives a third party the right to rely on the substantive
provisions of a contract to which it is not party where the contract either expressly states
so or where the term purports to confer a benefit on the third party. Section 8(1) provides
that where a third party has such a right and it is subject to arbitration, the third party
shall be treated as a party to the arbitration agreement in relation to those disputes,
where that agreement is in writing in accordance the Act. Accordingly, a party "who wishes
to take action to enforce his substantive right is not only able to enforce effectively his
right to arbitrate but is also "bound" to enforce his right by arbitration". (55) This is
analogous to the conditional benefit approach applicable in relation to assignment.
10.35 Section 8(2) of the CROTPA allows a non-party to become party to an arbitration
agreement where the right it enjoys arises from the arbitration agreement itself. It was
P 190 designed to cover situations where parties to a contract intended to give a third party a
P 191 unilateral right to refer disputes to arbitration (56) and it was anticipated "to be of rarer
application". (57) Since the CROTPA is concerned only with granting benefits to third
parties, rather than "imposing burdens", the third party may choose to submit the dispute
to arbitration, but may not be forced or compelled into arbitration by a party to such an
agreement.
10.36 There are two reported cases dealing with these provisions. (58) Nisshin Shipping v
Cleaves & Company (59) concerned a challenge to an English arbitration award under the
Act. Cleaves entered into a number of charterparties on behalf of Nisshin (as shipowner),
all of which provided for arbitration. The charterparties contained a clause entitling
Cleaves to a 1 % commission fee. Cleaves commenced arbitration proceedings against
Nisshin even though it was not party to the charterparty (or the arbitration agreement
within it). The arbitration clause between the owners and the charterers was wide enough
to cover a claim by the charterers against the owners for a failure to pay commission to
Cleaves. The court held that section 8(1) applied and that Cleaves could rely on the benefit
bestowed on it by the commission clause in the contract and enforce those rights against
Nisshin through arbitration. Colman J rejected the respondent's submission that whether
the third party can enforce its rights through arbitration depends on proof that both
parties intended the third party to enforce its rights by arbitration. Once it was

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 established that a third party enjoys substantive rights under the contract, the court held
that the third party non-signatory will be required to arbitrate the dispute (as long as the
dispute falls with the scope of the arbitration agreement). It is irrelevant whether or not
the third party has the benefit of the arbitration agreement itself. (60)
10.37 The more recent Court of Appeal case of Fortress Value Recovery Fund ILLC and others
v Blue Skye Special Opportunities Fund LP and others (61) reveals some of the difficulties
with applying the CROTPA. The case concerned a dispute between Fortress, assignee of a
partnership interest in Blue Skye Fund and the other partners of the Blue Skye Fund and
certain managers of the Fund. The Blue Skye Fund was governed by a partnership deed,
which contained a clause referring disputes to International Chamber Commerce ("ICC")
arbitration in London. Though all the partners were signatories to the partnership deed,
the managers of the fund were not. The managers were expressly mentioned as
beneficiaries of an extensive exclusion and indemnity clause within the deed which also
contained an express provision enabling the managers to enforce any rights and benefits
under the agreement in accordance with the CROTPA. Fortress initiated various tortious
claims in the English courts against the managers claiming that they had acted in concert
with the other partners to diminish the fund's value through a dishonest scheme to
rearrange the fund and its assets, thereby inducing the partners to breach the partnership
P 191 deed. (62) Claims were also brought against the partners in the English courts, but were
P 192 immediately stayed by reason of the arbitration agreement in the deed that bound
Fortress (as assignee). The managers applied for a stay of proceedings under section 9 of
the Act on the basis of the same arbitration agreement.
10.38 Tomlinson LJ rejected the managers' application. As to whether section 8(1) applied,
the court held that a dispute regarding the exclusion clause in favour of the managers
could in theory be construed as a right for their benefit – the fact that the right would be
used as a defence to a claim was of no relevance. (63) However, since in this case the right
operates as a defence, in practice, it could only be employed if a claim was brought
against the managers in arbitration. Nothing in the CROTPA allows parties to arbitration
agreements to initiate proceedings against non-parties. As to whether section 8(2) applied,
there was no express language in the deed to indicate that the managers enjoyed to a right
to arbitrate.
10.39 Even though the managers established a right under the CROTPA, in practice they
were precluded from enforcing that right. As a result, Fortress pursued claims against the
partners through arbitration and, separately pursued claims against the managers in
litigation, even though the managers, the partners and Fortress were all linked by the
contract and even though the facts of the different claims were intertwined with one
another.
10.40 The CROTPA was initially described as a "body blow to the doctrine of privity of
contract". (64) It has not yet lived up to that reputation. While the Fortress case clarifies
when the CROTPA should apply in the context of arbitration and how the conditional
benefit doctrine under section 8(1) should operate, it also demonstrates the limitations of
the CROTPA. It does not assist with the more nuanced procedural issues that arise when
dealing with arbitration-related proceedings.
10.41 In summary, the limited case law has not wholly endorsed the extension of
arbitration agreements to third party non-signatories. (65) It should also be mentioned
that many contracts expressly exclude the CROTPA, particularly in the construction
industry, (66) which suggests that companies are somewhat reticent about the implications
of opening themselves up to claims by third parties, including through arbitration.
10.42 Again, allowing prosecution of claims by third party beneficiaries and requiring them
to use the same dispute resolution procedure as prescribed in the underlying contract is
not particularly radical. While the third party will not itself have agreed to arbitration and
therefore that may raise ECHR issues, the conditional benefits doctrine strikes me as
reasonable and should not fall foul of Article 6 of the ECHR.

IV REJECTED APPROACHES
10.43 I now turn to consider those doctrines that have been rejected by the English courts
P 192 as a basis for extending an arbitration agreement to third party non-signatories. These
P 193 include (A) piercing the corporate veil, (B) group of companies, (C) implied consent, (D)
equitable estoppel, (E) abuse of rights, and (F) shared liability. These doctrines have,
however, found favour in some other jurisdictions. (67)

A Piercing the Corporate Veil and the Alter Ego Theory (68)
10.44 English courts will very rarely pierce the corporate veil. The Supreme Court, in Prest v
Petrodel Resources Limited, (69) recently reiterated that it has the power to pierce the
corporate veil, but such power should be exercised only in cases of abuse or fraud:
the principle that the court may be justified in piercing the corporate veil if a company's
separate legal personality is being abused for the purpose of some relevant wrongdoing is
well established in the authorities. It is true that most of the statements of principle in the
authorities are obiter, because the corporate veil was not pierced. (70)

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 10.45 Accordingly, it would require exceptional circumstances to justify lifting the
corporate veil in order to extend an arbitration agreement to a third party non-signatory.
In Roussel-Uclaf v GD Searle & Co Ltd, (71) an arbitration clause was contained in a patent-
licensing agreement between Roussel-Uclaf as patentee and Searle's United States parent
company. Roussel-Uclaf commenced litigation in the English courts against Searle, alleging
licence infringements. Searle sought a stay, in favour of arbitration. Graham J held that
Seale was entitled to a stay, on the basis that the parent and subsidiary were "so closely
related" that it could be said that the subsidiary was "claiming through or under" its parent
company. However, in City of London v Sancheti, (72) the Court of Appeal held that Roussel-
Uclafhad been wrongly decided insofar as it indicated that a third party could take
advantage of, or be bound by, an arbitration clause and that a close legal or commercial
connection between the third party and the party to the arbitration clause was insufficient.
Unsurprisingly, the Court of Appeal refused to grant a stay of court proceedings requested
by Mr Sancheti, who was seeking to rely on the investor-State arbitration provisions agreed
by the governments of the United Kingdom and India in a bilateral investment treaty.

B Group of Companies
10.46 Given the approach to piercing the corporate veil, it should come as no surprise that
English law does not entertain the group of companies doctrine. This permits the addition
P 193 of non-parties where it can be demonstrated that a non-signatory affiliate has been
P 194 involved in the conclusion or the performance or the termination of the contract. (73)
In the English case of Peterson Farms Inc. v C&M Farming Limited, (74) the Indian claimant
had brought an ICC arbitration against an Arkansas chicken farmer, following the supply of
chicken infected with an avian virus. As part of its damages claim, the claimant sought
compensation for the losses suffered by affiliate companies. The arbitration was seated in
London. The tribunal found that there was no express choice of law with regard to the
arbitration agreement, so instead determined the issue "in accordance with the common
intent of the parties." (75) Thus the tribunal applied the group of companies doctrine to
establish jurisdiction over the claimant's associated companies and awarded them
damages. It held that:
the group of companies doctrine provides that an arbitration agreement signed by one
company in a group of companies entitles (or obligates) affiliate non-signatory companies,
if the circumstances surrounding negotiation, execution, and termination of the agreement
show that the mutual intention of all the parties was to bind the non-signatories. (76)
10.47 In a challenge to the award, Langley J disagreed. He held that the arbitration
agreement was plainly governed by Arkansas law and there were no grounds to decide, as
the tribunal had purportedly done, that the applicable law was, in effect, the group of
companies doctrine. In the proceedings, the parties agreed to dispense with direct
testimony on issues of Arkansas law on the basis that the outcome of whether the group of
doctrine applies under Arkansas law was the same as under English law and Langley J
stated that the doctrine of group of companies "forms no part of English law". (77)
Accordingly, the court upheld a partial challenge to the award for lack of jurisdiction over
the third party non-signatories.

C Implied Consent and Common Intention

10.48 Another theory prayed in aid in some jurisdictions to extend an arbitration
agreement to third party non-signatories is that of implied consent or common intention.
English law does not recognise this doctrine (although the courts will apply foreign law
principles if applicable) and, more generally, contracts are not to be "implied lightly"
because the English courts need to be able to "conclude with confidence that [..] the
parties intended to create contractual relations". (78)
10.49 Thus, in the case of Svenska Petroleum Exploration AB v Lithuania (No. 2), (79) the
Court of Appeal confirmed the application of the doctrine of common intention under
Lithuanian law to uphold the finding of the lower court that Lithuania was party to an
arbitration agreement with Svenska. The Court of Appeal expressly acknowledged that
P 194 English law would not apply the doctrine of common intention to ascertain whether a non-
P 195 signatory was a party, but recognised that other legal systems, including the Lithuanian
court system, "attach greater importance to the need to identify those intentions from a
wider range of evidence", (80) not just by reference to the underlying agreement. Agreeing
with the court of first instance, the appellate court held that the "agreement must be
interpreted in conformity with the principles of Lithuanian law in a way that gives effect to
the common intention of the parties as [the judge at first instance] identified it". (81)
10.50 The conservative approach of the English courts is evidenced by the well-known
decision of the UK Supreme Court in Dallah Real Estate & Tourism Holding Co. v The Ministry
of Religious Affairs, Government of Pakistan.8 (82) It is notable that the UK Supreme Court
and French Court of Appeal reached different conclusions albeit both applying French law,
which recognises the doctrine of implied consent through common intention as a method
of adding non-signatory parties to an arbitration agreement. The contract was originally
between Dallah Real Estate & Tourism Holding Co. ("Dallah") and the Awami Hajj (the
"Trust") for the construction of housing on land in Mecca, Saudi Arabia, near to the famous
Hajj and Umra pilgrimage sites. Prior to this, a memorandum of understanding had been

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 signed by the Government of Pakistan. The Government subsequently brought the Trust to
an end. The French-seated tribunal determined that it had jurisdiction over the
Government of Pakistan, finding that the common intention of the original signatory parties
to the contract was that the Government of Pakistan also be a party to the contract.
However, the UK Supreme Court's application of French law led it to a quite different
conclusion. It found that the common intention of the parties demonstrated that only
Dallah and the now defunct Trust (and not the Government of Pakistan) were party to the
contract. Accordingly, the award was refused enforcement in England. (83)

D Equitable Estoppel
10.51 A further approach in some jurisdictions to extend the arbitration agreement to non-
signatories is to employ the doctrine of equitable estoppel or "closely intertwined
estoppel", on the basis that "the claims are so closely intertwined with the underlying
contract". (84)
10.52 Although English law recognises different types of estoppel, (85) it is difficult to
envisage the English courts finding that a third party non-signatory is bound by an
P 195 arbitration agreement on grounds of estoppel. As far as claimants are concerned, estoppel
P 196 cannot generally be used as a sword to found a claim or jurisdiction. (86) As for
extending an arbitration agreement to a third party respondent, to establish estoppel by
convention, (87) it would be necessary to show a common understanding or shared
assumption that the non-signatory was a party to the arbitration agreement, which would
be rare. In Peterson Farms, the claimant also argued that equitable estoppel under
Arkansas law operated to extend the arbitration agreement to the claimant company's
group entities, however the argument failed due to lack of evidence. (88)
10.53 This negative conclusion as to the application of estoppel doctrines should be
distinguished from the situation where the court is asked to decide that a party cannot
deny the terms of a matrix contract, which incidentally includes an arbitration agreement.
In that situation, the court (or tribunal) is simply being asked whether a contract exists
between two original parties. For example, in Oceanografia SA DE CV v DSND Subsea AS, (89)
an offer of a charterparty was expressed to be subject to the signing of mutually agreeable
contract terms and conditions. After negotiations on terms, the vessel arrived in the Gulf of
Mexico and was used by Oceanografia. DSND claimed sums due under the charterparty and
commenced arbitration under the charterparty arbitration clause. The tribunal issued an
award in favour of DSND. Oceanografia argued that no binding charterparty had come into
existence and challenged jurisdiction. Aikens J found that Oceanografia had elected to go
ahead without DSDN's signature and, inter alia, that both parties assumed that the vessel
was operating on the terms of the charterparty, which common assumption meant that
Oceanografia was estopped by convention from denying the binding terms of the
charterparty, including the arbitration clause.
10.54 Likewise, my negative conclusion as to the application of estoppel does not extend
to situations of waiver such as where a third party non-signatory has arbitration
proceedings commenced against it and submits to the jurisdiction of the arbitral tribunal,
it will be prevented from reneging. For example, in The Republic of Serbia v Imagesat
International NV, (90) Imagesat had entered into a contract with the State Union of Serbia
and Montenegro, which provided for disputes to be referred to ICC arbitration, with English
governing law and England as the seat. Soon after a referendum, Montenegro declared
itself an independent State, but Serbia replied to the Request for Arbitration stating that
the State Union had ceased to exist and certain rights, obligations and liabilities of the
State Union had been undertaken by Serbia and that it would therefore "act as the
respondent in this phase of the procedure". It signed Terms of Reference. Its defence
stated that it was not an original party to the contract and had not subsequently become
liable, and denied that the arbitrator had jurisdiction over it. The arbitrator found that
Serbia was the continuation of the State Union in international law and hence a proper
party to the arbitration. Serbia challenged the award on grounds of lack of substantive
jurisdiction. Beatson J held that Serbia had submitted to the jurisdiction in the Terms of
Reference in terms which gave the arbitrator substantive jurisdiction to deal inter alia with
the "continuator/successor" point.
P 196
P 197
E Abuse of Rights
10.55 A further approach is based on abuse of rights, which is applied in, for example,
Switzerland. (91) I am not aware of any English case that applies this doctrine in relation to
third party non-signatories.

F Shared Liability
10.56 Finally, under English law it is undisputed that an arbitration agreement does not
extend to a third party that has guaranteed or indemnified the obligations of one of the
parties to the contract, although any resultant award may bind the guarantor. (92) Likewise,
it does not extend to third parties that are jointly liable, such as partners in a partnership,
unless they are parties to the original contract by reason of, for example, agency.
10.57 The recent case of Egiazaryan and Gogokhiya v OJSC OEK Finance and The City of

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 Moscow (93) is a novel exception, based on the application of Russian law. In an LCIA
arbitration, the claimants accused OEK Finance and its 100% shareholder, the City of
Moscow, of tortiously orchestrating a corporate raid that ousted the claimants from a
project to redevelop a hotel. The arbitration was seated in London and the arbitration
agreement was governed by English law. The claimants sought to join the City of Moscow on
the basis of Article 105 of the Russian Civil Code that arguably makes a parent jointly and
severally liable on a contract, including liability to perform an arbitration agreement. (94)
The arbitral tribunal, applying English law, declined to join the City of Moscow, finding
Article 105 to be irrelevant. In proceedings challenging the award, Burton J held that
Russian law, as the place of incorporation of the signatory to the arbitration clause,
determines whether the signatory's parent can be bound to arbitration under the contract
entered into by the signatory and upheld the challenge, remitting the claim to the
tribunal.

V PROFESSOR BREKOULAKIS'S THESIS

10.58 Professor Brekoulakis, in Chapter 8 above, observes that the overarching idea behind
all the theories that cause a third party non-signatory to be bound by an arbitration
agreement, in English law and elsewhere, is consent, express or implied. He considers,
however, that in many scenarios, this amounts to the application of a legal fiction. He
recommends that the focus should not be on the putative consent of non-signatories, but
on the scope of the dispute submitted to arbitration and the scope of the original
arbitration clause. Accordingly, if a dispute strongly implicates a non-signatory and is
P 197 covered by a broad arbitration clause, the tribunal should have jurisdiction to decide that
P 198 dispute, even if this means that it has to assume jurisdiction over a party that has not
signed the arbitration clause.
10.59 This is a thought provoking thesis that deserves careful consideration. It would
address one of the major problems with arbitration that prevents complex disputes arising
out of two or more connected contracts and/or implicating third parties from being
resolved efficiently in a single forum (assuming the third party (ies) refused to be joined).
Such originality and scholarship distinguishes Professor Brekoulakis and the Queen Mary
School of International Arbitration. I have two principal observations.
10.60 First, the English courts have not been attracted to the more equitable doctrines that
have been applied elsewhere, such as in the United States, that allow third party non-
signatories to be bound by an arbitration agreement, and which depend on the somewhat
subjective and unpredictable view of arbitral tribunals and/or courts as to whether the
third party should be joined. The English approach is firmly rooted in orthodox contract
law doctrines, with some limited statutory extensions, which presume consent to arbitrate
with a third party that has acquired rights from or through an original party, be it as a
result of agency, novation, assignment, subrogation or succession. This is a practical and
uncontroversial application of the law, and the extension of the arbitration agreement to
such third parties should not surprise the original counterparties. Allowing a third party
beneficiary to sue in arbitration for the enforcement of the benefit may be stretching the
notion of bilateral consent, (95) and waiver of Article 6 ECHR, but this has only been
allowed as a result of Parliamentary intervention and again it should not surprise the giver
of the benefit. Accordingly, the criticisms made by Professor Brekoulakis as to the
application of legal fictions and the argument that there should be a more intellectually
honest and holistic approach have less force in respect of English law.
10.61 Secondly, Professor Brekoulakis's recommended approach would cause significant
practical difficulties and be likely to lead to delay and increased costs. Arbitral
institutions, such as the LCIA, when registering a Request for Arbitration look to the named
parties to the arbitration agreement (or most often the underlying matrix contract) and
where the claimant(s) or respondent(s) in the Request is not an original named party, they
will consider plausible prima facie evidence of an agency relationship, novation,
assignment, subrogation, succession or third party beneficiary rights. If a tribunal was
entitled to assume jurisdiction over any third party implicated by the dispute, the arbitral
institution could be in an invidious position, such as deciding which of multiple
respondents had the right to nominate an arbitrator. Then, assuming the Request is
registered and the arbitration commences, it is expected that many such third parties who
had been named because they were allegedly implicated in the dispute would challenge
jurisdiction, before the arbitral tribunal and courts, causing delay and substantial costs. A
mischievous claimant with deep pockets (and/or badly advised) could start an arbitration
against a plethora of allegedly implicated third parties, perhaps in pursuit of a nuisance
claim, and so could presumably the respondent, in an attempt to disrupt the proceedings.
(96)
10.62 The present system is not perfect, especially in relation to achieving efficient dispute
P 198 resolution where third party non-signatories are implicated. Should the legislature wish to
address this problem, Professor Brekoulakis has posited an intriguing solution.

References

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 *) Partner, Clifford Chance LLP, Vice President of the LCIA Court, and Visiting Professor,
School of International Arbitration, Queen Mary University of London. I am grateful to
Anna Kirkpatrick, Senior Professional Support Lawyer, Clifford Chance LLP, for her
assistance.
1) Dallah Real Estate and Tourism Holding Company v. The Ministry of Religious Affairs,
Government of Pakistan [2010] UKSC 46, [105] per Lord Collins.
2) With apologies to the peoples of Wales, the usual abbreviated reference to England
only is used for convenience.
3) Arbitration Act 1996, section 7. See David St. John Sutton, Judith Gill QC, Matthew
Gearing QC, Russell on Arbitration (24th edn, Sweet & Maxwell 2015) ("Russell") §2–007 –
§2–014.
4) Russell, above n. 3, §2–122. In certain circumstances, English law will also have regard
to the law governing the relationship between the original party and a third party,
applying English conflict of laws principles, see e.g., Egiazaryan and Gogokhiya v OJSC
OEK Finance and The City of Moscow [2015] EWHC 3532 (Comm).
5) See generally, Hugh G Beale (ed), Chitty on Contracts (32nd edn, Sweet & Maxwell 2015)
("Chitty on Contracts") Chapters 18 & 19; Edwin Peel, Treitel on The Law of Contract (14th
edn, Sweet & Maxwell 2015) ("Treitel") Chapters 14–16.
6) See generally, Russell above n. 3, §3–025 – §3–047; Robert Merkin QC and Louis
Flannery, Arbitration Law (Looseleaf, Lloyd's Commercial Law Library, Informa Law,
2016) §1.41 – §1.43, §3.37 – §3.47, and §17.39 – §17.46 ("Merkin Looseleaf"); Andrew
Tweeddale and Keren Tweed-dale, Arbitration of Commercial Disputes, International
and English Law and Practice (OUP 2005) ("Tweeddale") §19.13 – §19.65.
7) If a third party is substituted into a contract containing an arbitration agreement and
wishes to bring a claim, it will be bound to do so in arbitration. See generally, Russell
above n. 3, §3–029; and Robert Merkin and Louis Flannery, Arbitration Act 1996 (5th edn,
Routledge 2014) 377.
8) Stavros L. Brekoulakis, Parties in International Arbitration: Consent v Commercial
Reality, Chapter 8 above. See also, Brekoulakis, Third Parties in International
Commercial Arbitration (OUP 2010).
9) A complex factual scenario is described in Stellar Shipping Co LLC v Hudson Shipping
Lines [2010] EWHC 2985 (Comm).
10) See e.g., Athletic Union of Constantinople v National Basketball Association [2002] 1
Lloyd's Rep. 305. See also, Russell above n. 3, §2–016.
11) Chitty on Contracts, above n. 5, §2–169 – §2–172.
12) See e.g., City of London v Ashok Sancheti [2008] EWCA Civ 1283 [34]. See further, David
Joseph QC, Jurisdiction and Arbitration Agreements and their Enforcement (3rd edn,
Sweet & Maxwell 2015) ("Joseph") §7.50.
13) Departmental Advisory Committee on Arbitration, Departmental Advisory Committee on
Arbitration Report on Arbitration Bill 1996, 13(3) Arbitration International 275, 303–304
(1997).
14) See, in relation to the 1998 London Court of International Arbitration ("LCIA") Rules,
Peter Turner and Reza Mohtashami, A Guide to the LCIA Arbitration Rules (OUP 2009)
§6.45 – §6.54. See, in relation to the 2014 LCIA Rules, Maxi Scherer, Lisa M. Richman
and Remy Gerbay, Arbitrating under the 2014 LCIA Rules: A User's Guide (Kluwer Law
International 2015) 250, and Shai Wade, Philip Clifford and James Clanchy, A
Commentary on the LCIA Arbitration Rules 2014 (Sweet & Maxwell 2015) 246 -249.
15) Cf. the position in the Netherlands: Article 1045 of the Dutch Civil Procedure Code
empowers an arbitral tribunal to permit joinder of a third party with an interest in the
arbitration proceedings, unless the parties agree otherwise.
16) See e.g., Ssangyong Motor Distributors Ltd v Daewoo Cars Ltd (QBD) 23 April 1999;
Reichhold Norway ASA & Anor v Goldman Sachs International (1999) CLC 486.
17) Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4
November 1950 (known as the European Convention on Human Rights), Article 6(1).
18) In Suovaniemi and others v Finland (Case No. 31737/96, 23 February 1999) the European
Court of Human Rights ("ECHR") confirmed that in principle an agreement to arbitrate
constitutes a permissible waiver of rights under Article 6(1). And see e.g., Paul Stretford
v Football Association Ltd [2007] EWCA Civ 238 [45]; Sumukan Ltd v Commonwealth
Secretariat [2007] EWCA Civ 1148; Julian D.M. Lew QC, Harris Bor, Gregory Fullelove and
Joanne Greenaway (ed), Arbitration in England (Kluwer Law International 2013) §17–33 –
§17–37 (Guy Pendell and Juliette Huard-Bourgois).
19) Russell above n. 3, §2–076; Richard Clayton QC and Hugh Tomlinson QC, The Law of
Human Rights (2nd edn, OUP 2009) §11.61.
20) Chitty on Contracts above n. 5, §18–003, §18–022; Treitel above n. 5 §14–004.
21) The same relationship applies as between beneficiary and trustee: see Sir Michael
Mustill & Stewart Boyd QC, The Law and Practice of Commercial Arbitration in England
(2nd edn, Butterworths 1989) ("Mustill & Boyd") 136.
22) Russell above n. 3, §3–036; Chitty on Contracts above n. 5, §31–043 – §31–044 and §31–
056; Treitel above n. 5, §16–001 and §16–021; Peter Watts (ed), Bowstead & Reynolds on
Agency, (20th edn, Sweet & Maxwell 2014) ("Bowstead & Reynolds") §8–001 and §8–010.
23) Treitel, above n. 5, §16–016 – §16–018.
24) The representation by the principal can be made in three ways – expressly, impliedly
or by permitting the agent to act in a way which would make a third party believe that
the agent had authority. See e.g., Bowstead & Reynolds above n. 22, §8–014; Treitel
above n. 5, §16–022.

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 25) Toyota Tsusho Sugar Trading Ltd v Prolat SRL [2014] EWHC 3649 (Comm).
26) Ibid., [55].
27) Ibid., [14].
28) Chitty on Contracts above n. 5, §31–054; Russell above n. 3, §3–036.
29) Bowstead & Reynolds above n. 22, §8–069; Chitty on Contracts above n. 5, §31–063.
30) Chitty on Contracts above n. 5, §19–087; Treitel above n. 5, §15–003.
31) Russell above n. 3, §3–034; Chitty on Contracts above n. 5, §32–043; Marcus Smith QC,
Nico Leslie, The Law of Assignment (2nd edn, OUP 2013) §5.105.
32) CMA CGM SA v Hyundai MIPO Dockyard Co Ltd [2008] EWHC 2791 (Comm) [23].
33) Mustill & Boyd above n. 21,137 and Chitty on Contracts above n. 5, §32–043 – both citing
Smith v Pearl Assurance Co Ltd [1939] 1 All ER 95.
34) Charles M Willie & Co (Shipping) Ltd v Ocean Laser Shipping Ltd [1999] 1 Lloyd's Rep 225.
35) Ibid. [242]. See, Russell above n. 3, §3–034, and Tweeddale above n. 6, §19.44.
36) Chitty on Contracts above n. 5, §19–001 – §19–081; Treitel above n. 5, §15–001 – §15–015.
The assignment of a contract is the transfer of a chose in action from the assignor (the
creditor) to a non-party to the agreement (the assignee). It is not possible to assign the
burden of a contract under English law, because burdens are not choses in action.
37) Chitty on Contracts above n. 5, §19–080. In these cases, the assignee must perform the
burden or otherwise forgo the right to take the benefit.
38) See e.g., Mustill & Boyd, above n. 22, 138, who opined that there would be much to be
said for an argument that an assignee could only enforce a claim in the courts; and The
London Steamship Owners v Bombay Trading (The Felicie) [1990] 2 Lloyd's Rep. 21, per
Phillips J.
39) Stephen Jagusch and Anthony Sinclair, The Impact of Third Parties on International
Arbitration – Issues of Assignment, in Loukas Mistelis and Julian Lew (eds), Pervasive
Problems in International Arbitration (Kluwer Law International 2006) §15–01 and §15–
45. See e.g., West Tankers Inc. v RAS Riuione Adriatica Sircurta SpA and Generali
Assicurazioni Generali SpA [2007] EWHC 2184 (Comm).
40) If the contract includes an effective non-assignment clause, the assignee is not bound
by the arbitration clause, see e.g. Bawejem Ltd vMCFabrications [1999] 1 All ER 377
(Comm).
41) Julian Lew, Loukas Mistelis and Stefan Kröll (eds), Comparative International
Commercial Arbitration (Kluwer Law International 2003) §7–52 and §7.53.
42) Joseph above n. 13, §7–08; Chitty on Contracts above n. 5, §19–80.
43) Chitty on Contracts, above n. 5, §19–039.
44) Joseph above n. 12, §7–11; Baytur S.A. v Finagro Holding S.A. [1992] 1 Lloyd's Rep. 134 (CA)
[150 -151]; Mustill and Boyd above n. 21, 38; Russell above n. 3, §3–032.
45) For example, pursuant to the Insolvency Act 1986. See generally, Treitel, above n. 5,
§15–073; Mustill & Boyd above n. 21, 137; Tweeddale above n. 6, §19.16 and §19.17.
46) Chitty on Contracts above n. 5, §29–180 and §32–045.
47) For example, the Third Parties (Rights Against Insurers) Act 1930. The majority of the
provisions will be replaced by The Third Parties (Rights Against Insurers) Act 2010,
which is expected to come into force in Spring 2016.
48) Russell, above n. 3, §3.029.
49) Eurosteel Ltd v Stinnes AG [2000] CLC 470. Nevertheless, the dissolution of a party
following a merger may cause complex jurisdictional issues, see e.g. The Republic of
Kazakhstan v Istil Group Inc. [2006] EWHC 448 (Comm), [2007] EWCA Civ 471, and [2007]
EWHC 2729.
50) Lafarge Redlands Aggregates Ltd v Shepherd Hill Civil Engineering Ltd [2000] 1 WLR 1621.
51) Ibid., 1623.
52) Idem.
53) See generally, Joseph above n. 12, §7.32 and §7.33; Russell above n. 3, §3–027; Andrew
Tweeddale, 'Arbitration under the Contracts (Rights of Third Parties) Act 1999 and
Enforcement of an Award' (2011) 27(4) Arbitration International 653 ("Tweeddale on
Enforcement").
54) Law Commission Report, Privity of Contract: Contracts for the Benefit of Third Parties,
1999, §14.14, §14.17 and §14.18; see generally, Clare Ambrose, When can a third party
enforce an arbitration clause? (2011) Journal of Business Law 415.
55) Contracts (Rights of Third Parties) Act 1999, Explanation Notes, §34.
56) Ibid., §35.
57) Idem.
58) Christina Mulchrone v Swiss Life (UK) Plc [2005] EWHC 1808 (Comm) concerned whether
the CROTPA applied at all. The issue was whether the claimant could establish that her
employer's contract of disability insurance had been entered into after the CROPTA
had come into force. If she could, the parties accepted that she would be entitled to
bring a claim in her own right against the insurer, but would have to do so in
arbitration.
59) Nisshin Shipping Co Ltd v Cleaves & Company Ltd [2003] EWHC 2602 (Comm).
60) Ibid., [42] – [44].

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 61) Fortress Value Recovery Fund ILLC and others v Blue Skye Special Opportunities Fund LP
and others [2013] EWCA Civ 367.
62) Ibid., [2–8].
63) Ibid., [26 and 28].
64) Nisshin Shipping, above n. 59, [1].
65) Even if the CROTPA is successful in conferring a right on a third party, there may be
issues with the enforcement of an award in favour of a third party beneficiary where it
cannot be demonstrated that the third party has signed the arbitration agreement.
Tweeddale on Enforcement, above n. 53, 658–660.
66) This may be driven in part by the fact that the JCT standard form building contracts
previously routinely excluded the CROTPA. In 2005, this exclusion was removed across
the suite of contracts.
67) See generally, Nigel Blackaby, Constantine Partasides QC with Alan Redfern and Martin
Hunter, Redfern and Hunter on International Arbitration (6th edn, OUP 2015) ("Redfern
and Hunter") §2.42 – §2.62; Gary Born, International Commercial Arbitration (2nd edn,
Kluwer Law International 2014) ("Born") Chapter 10.
68) See generally, Joseph above n. 12 §7.52 -§7.56 and Redfern and Hunter above n. 67,
§2.51.
69) Prest v Petrodel Resources Limited [2013] UKSC 34.
70) Ibid., [27].
71) Roussel-Uclaf v GD Searle & Co Ltd [1978] 1 Lloyd's Rep. 225.
72) City of London v Sancheti [2008] EWCA Civ 1283.
73) Dow Chemical v Isover Saint Gobain (ICC Case No. 4131, Y.C.A. Vol. IX (1984), 131; Redfern
and Hunter above n. 67, §2.45 – §2.50; Bernard Hanotiau, Complex Arbitrations:
Multiparty, Multicontract, Multi-issue and Class Action (Kluwer Law International 2006)
93; Bernard Hanotiau, Group of Companies in International Arbitration, 282 in Loukas
Mistelis and Julian Lew (eds), Pervasive Problems in International Arbitration (Kluwer
Law International 2006); Bernard Hanotiau, Non-signatories, Groups of Companies and
Groups of Contracts in Selected Asian Countries: A Case Law Analysis, (Kluwer
International, 2015).
74) Peterson Farms Inc. v C&M Farming Limited [2004] EWHC 121 (Comm).
75) Ibid., [43].
76) Ibid., [93].
77) Ibid., [62].
78) Blackpool and Fylde Aero Club v Blackpool BC [1990] 1 WLR 1195,1202; see generally on
the role of contractual intention in English law, Chitty on Contracts above n. 5, §2–167 –
§2–170.
79) Svenska Petroleum Exploration AB v Lithuania (No. 2) [2006] EWCA Civ 1529, [62]; see
Bernard Hanotiau, The issue of non-signatory States, 23 American Review of
International Arbitration 379, 387 (2012).
80) Ibid., [71].
81) Ibid., [82]. One commentator notes that "it is tolerably clear [...] that they would not
have come to a different approach under English law as opposed to Lithuanian law",
Joseph above n. 12, §7.51.
82) Dallah Real Estate & Tourism Holding Co. v The Ministry of Religious Affairs, Government
of Pakistan, above n.1.
83) In refusing an application to set aside the award by the Government of Pakistan, the
French Court of Appeal came to the opposite conclusion: Gouvernement du Pakistan
Ministere des Affaires Religieuses v Sociere Dallah Real Estate and Tourism Holding
Company, Cour d'Appel Paris, 09–28533, 09/28535 and 09/28541. See generally, Pierre
Mayer, The Extension of the Arbitration Clause to Non-Signatories – the Irreconcilable
Positions of French and English Courts, 27 Am.U. Int’l Rev., 831 (2012).
84) Alexandre Meyniel, That Which must not be Named: Rationalizing the Denial of U.S.
Courts With Respect to the Group of Companies Doctrine, 3 The Arbitration Brief 18, 48
(2013). See generally, Redfern and Hunter above n. 67, §2.53; Born above n. 67, 1472.
85) See e.g., estoppel by convention, promissory estoppel, and proprietary estoppel.
86) Sean Wilken and Karim Ghaly, The Law of Waiver, Variation and Estoppel (3rd edn, OUP
2012) §9.04, §9.17 and §11.04.
87) Ibid., §10.01. Estoppel by convention occurs where the parties have established a
common comprehension as to the legal effect of the agreement, have conducted
themselves on that basis, and one party would suffer detriment if the other were
allowed to resile from the assumed position.
88) Peterson Farms Inc. v C&MLtd, above n. 74, [61] and [67].
89) Oceanografia SA DE CV v DSND Subsea AS [2006] EWHC 1360 (Comm).
90) The Republic of Serbia v Imagesat International NV [2009] EWHC 2853.
91) Born above n. 67, 1434–1435. See also, Andrea Meier, Multi-party Arbitrations, 1329 in
Manuel Arroyo (ed), Arbitration in Switzerland: The Practitioner's Guide (Kluwer Law
International 2013) Chapter 13 §20; Swiss Supreme Court Decision 4A_450/2013 of 7 April
2014.
92) Russell, above, n. 3, §3–028.
93) Egiazaryan and Gogokhiya v OJSC OEK Finance and The City of Moscow [2015] EWHC 3532
(Comm).

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 94) Replaced by Article 67.1 as of 1 September 2014. That interpretation of Article 105,
which was accepted by both sides, has been met with surprise by some commentators,
see e.g. http://www.bakerbotts.com/ideas/publications/2016/01/update-2015-01-28-
english-commercial-court (accessed 9 Feb. 2016).
95) As to an analysis of non-signatory third parties to arbitration on spectrum of consent,
see e.g., James Hosking, The Third Party Non-Signatory's Ability to Compel International
Commercial Arbitration: Doing Justice without Destroying Consent, 4(3) Pepperdine
Dispute Resolution Law Journal 469, 486 (2004).
96) Article 22.1 (viii) of the 2014 LCIA Rules allows the arbitral tribunal to join a third party,
but only if the third party has "consented". See above, n. 14.

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