Nowadays, there is no doubt that - under certain circumstances - an arbitral agreement can be extended to non-signatories. Many theories have been developed to this effect, such as implicit consent, pierce of the corporate veil, and incorporation by reference, among others.
In the last two or three decades, especially among international arbitration practitioners, consensus has emerged on the requirements to apply these theories. Most notably, there is general agreement on the fact that - all things being equal - active participation by a non-signatory in the negotiation, execution, performance and/or termination of the contract containing an arbitral agreement can be taken as evidence of implied consent to arbitrate.
However, when the theory is put into practice, as commonly occurs, dissimilar approaches resurge. This appears especially true when looking at national courts' decisions. Indeed, whereas some judges interpret the circumstances that may reveal implied consent in a strict way, others show a more relaxed approach and are willing to find consent more easily. We believe this is due, at least partially, to the different stance taken by jurisdictions (and thus judges) towards factors that may exercise great influence on the final decision to extend or not an arbitral agreement, such as good faith, the group of companies doctrine and the avoidance of a denial of justice.
In the pages that follow, after identifying the law applicable by default to arbitral agreements in a number of European jurisdictions (the "Jurisdictions") (which, as can be intuited, is also of relevance to the final decision on the extension of arbitral agreements), we will then describe the contrasting approaches taken in these same Jurisdictions towards the analysis of implied consent, emphasizing - as mentioned above - the different factors given relevance to in each Jurisdiction. Finally, we will finish our analysis with some conclusions.
The Jurisdictions covered in this paper are England, Sweden, Switzerland, Spain and France, which, according to ICC statistics, are some of the countries chosen most often as seat of international arbitration in Europe.
Keywords: ICC, European jurisdiction, arbitral agreements, negotiation, non-signatory, international arbitration, non-signatories
Suggested Citation: Suggested Citation
Silva Romero, Eduardo and Velarde Saffer, Luis Miguel, The Extension of the Arbitral Agreement to Non-Signatories in Europe: A Uniform Approach (2016). American University Business Law Review, Vol. 5, No. 3, 371, Available at SSRN: https://ssrn.com/abstract=3157422
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