Published 27 February 2019
One of the perennial limitations of the international arbitration system has been the lack of a uniform procedural instrument allowing those who have not formally executed the operative agreement to be brought into the arbitration proceedings. In pursuit of the task to effectively answer the needs of the complex international business transaction, arbitration tribunals have invoked the relaxed rules of privity and form to overcome this problem. Binding "non-signatories," as the practice has been termed, is now an unexceptional occurrence in complex international arbitration cases. It is also one of overwhelming importance: a positive finding that a "non-signatory" is bound by the underlying arbitration agreement opens the door to the obligations to enforcement of the ensuing awards internationally, against the assets of the non-signatory, under the system established by the New York and Panama Conventions ("Convention").
Called upon to perform, unwilling third parties typically object that they have not signed anything. This pragmatic formula for lack of consent essentially asserts that whether or not liability exists on their part should not be arbitrated pursuant to the arbitration agreement part of the underlying contract.
Footnotes omitted from this introduction.