Like consummated romance, arbitration rests on consent.1 An agreement of some sort waives each side’s right to invoke the jurisdiction of otherwise competent courts.2
Nevertheless, arbitrators do hear cases involving entities and individuals that never signed an arbitration clause. Continental scholars refer to “extending” the arbitration clause, while lawyers in Anglo-American traditions tend to speak of “joining” non-signatories.
1One American judge referred to the “abecedarian” (i.e., “rudimentary”) tenet that no one can be forced to arbitrate absent an agreement to do so. See InterGen v. Grina, 344 F. 3d 134 (1st Cir. 2003), addressing claims for deceit and unfair trade practices. InterGen (affiliated with engineering giant Bechtel) sought to litigate in Massachusetts, while Grina (affiliated with power generation leader Alstom) invoked an arbitration clause contained in purchase orders for gas turbines executed by entities within the two groups. In an opinion studded with erudition, Judge Selya rejected a motion to compel arbitration.