Author: Katherine Belton**
Published: May 2013
Hanotiau has questioned whether the matter of non-signatories, and the academic debate it generates, is not simply a “false problem.” Certainly, hundreds (if not thousands) of commercial arbitration cases proceed every year, and perhaps only a handful of arbitral tribunals will be faced with the nonsignatory problem: that of determining whether a party has consented to arbitration despite its lack of signature on the relevant arbitration agreement and its consent to arbitrate not otherwise recorded in a manner which is capable of subsequent reference. However, regardless of the “falseness” of the non-signatory problem, the issue of non-signatories goes to the heart of the very essence of arbitration: that is, consent to arbitrate a dispute, rather than to litigate it in national courts. In this respect, Hanotiau has more recently said that the nonsignatory problem is a “classic problem” in international arbitration.
Whether “false” or “classic,” this article will focus on the non-signatory problem, and in particular, the differing views of the role of consent in modern arbitral practice as it pertains to the non-signatory problem. The need to review the role of consent is highlighted by the recent decisions in the ongoing case of Dallah Real Estate and Tourism Company v. Ministry of Religious Affairs of the Government of Pakistan (“Dallah”). The non-signatory problem was at the heart of the Dallah case, and generated considerable discussion among the arbitral community. Accordingly, the case provides an excellent backdrop against which to discuss the role of consent and the approaches to consent taken by different courts.
*Notes and Comments
**Solicitor (New Zealand) and registered Foreign Lawyer with the Düsseldorf Bar; Lawyer at Heuking Kühn Lüer Wojtek, Düsseldorf. This article was submitted in an earlier form as a dissertation for the LL.M program at Queen Mary, University of London, and supervised by Prof. Loukas Mistelis.