Author: Marc J. Goldstein*
Published: September 2019
Agreement to Arbitrate
Third Parties in Arbitral Proceedings
New York Convention
Enforcement of Arbitral Awards
Procedure for Enforcement
The decision whether to include or exclude entities that did not sign the arbitration agreement as respondents in a new international arbitration can be fraught with difficulty. Many readers of this journal will likely have encountered this problem repeatedly.
If these non-signatories do not resist the arbitral tribunal’s authority to adjudicate their status, then joining them as respondents may have a number of advantages. One is to require them to provide evidence and to secure adverse inferences if they refuse. Another is to have them bound by any interim relief the arbitral tribunal or an emergency arbitrator may grant, on the basis of prima facie jurisdiction, and often such relief will be contemplated by the claimant as an early step in the case. The arbitral determination of their status in relation to the signatory of the arbitration agreement will be entitled to considerable deference when the award is presented for recognition and enforcement in the courts of many Contracting States of the New York and Panama Conventions.
In a contrasting approach, some claimants will decide that joinder of the non-signatories threatens to encumber the arbitration with status issues that are collateral to the merits, perhaps inviting an entire jurisdictional phase of the case that would delay getting to the merits. Worse, non-signatories may resist arbitral jurisdiction entirely and take the initiative to obtain a judicial injunction against the arbitration – or at least, their participation in it — in a friendly judicial forum, on the ground that the tribunal lacks competence to decide whether the non-signatories are bound to arbitrate. If the signatory respondent and the non-signatories are agents and instrumentalities of a State, the possibility of their resort to the courts of the State to resist the arbitration, and to exert pressure on the claimant, may be a compelling reason to omit non-signatory persons as named arbitration respondents. Also, in a certain number of cases, the existence of non-signatories who might be liable is discovered in the course of the arbitration, making joinder of them a mid-course adjustment that is difficult or ill-advised. For all of these reasons, the question of legal status of non-signatories may be omitted from the arbitration and decided in connection with recognition and enforcement of the award.
*Mr. Goldstein is an international arbitrator and mediator in independent practice in New York. For 38 years he was an advocate in international arbitration and U.S. commercial litigation. His website is www.lexmarc.us. He has been the author since 2009 of Arbitration Commentaries (http://arbblog.lexmarc.us).