Originally from World Arbitration And Mediation Review (WAMR)

Preview Page

VOLUNTARY INTERVENTION AND

OTHER PARTICIPATION OF THIRD
PARTIES IN ONGOING INTERNATIONAL
ARBITRATIONS: A SURVEY OF
THE CURRENT STATE OF PLAY
By Thomas Bevilacqua*

I. INTRODUCTION
There is little need to point out the existence of classic situations in
which an individual or entity acts as an arbitral claimant or respondent
despite the fact that such individual or entity is not formally a signatory to
the relevant arbitration clause. Among the most frequently-encountered
examples of such instances are: (a) participation by a corporation in an
arbitration commenced pursuant to an arbitration clause signed by one of its
affiliates, when that corporation was intimately involved in the disputed
events, (b) participation of a post-merger entity in arbitration proceedings
conducted under a clause signed by one of its original constituent entities,
and (c) arbitration commenced by an intended third party beneficiary under
a contract in which it seeks to enforce rights granted under the contract, to
name just three.1
These rather recurrent situations usually present themselves at the
beginning of an arbitration, with a person or entity fitting one of the abovedescriptions
appearing as claimant or respondent from the very outset of the
proceedings. Though the precise contours and degree of acceptance for each
of these different “non-signatory party” situations vary from legal system to
legal system, the concepts are not themselves unfamiliar and they are
frequently applied in one variant or another in major arbitration venues.
An altogether different question is that of the voluntary intervention of
other types of third parties in ongoing arbitrations. Such interventions are in
practice quite rare, at least in cases where all of the named claimants and
respondents have not consented. Indeed, as stated by one arbitration
observer, "If all parties concerned agree to the joinder or intervention of
additional parties . . . then that will virtually always be permitted by the
arbitrators. On the other hand, if there is no agreement among the parties as