Originially from Conflict of Laws in International Commercial Arbitration

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I.INTRODUCTION: ISSUE DEFINED 

Suppose an arbitration agreement or clause between the initial parties to the main contract (the creditor/assignor and the debtor/debitor cessus): Does the arbitration agreement apply merely to disputes between these two initial parties, or may the arbitration clause also apply to disputes between the assignee (who is not a party to the initial contract) and the debtor? 

When Christian Hausmaninger and I undertook to analyse the issue of assignment and arbitration more than 25 years ago,2 we realized that we could not base our thoughts on much specific literature: While the question of whether an assignee is bound to, or may invoke, an arbitration agreement concluded between the assignor and the debtor, had arisen as a practical problem quite often in many jurisdictions, no specific and even less comprehensive analyses had been published at the time. That has changed radically in the meantime: The articles and case notes are now legion, and various detailed articles and books have appeared in many languages analysing and comparing a multitude of legal systems.3 It would thus constitute a redundant task to add yet another analysis to these careful, and largely comprehensive, publications, and it would be impossible to summarize all relevant court and arbitral decisions and/or theories in a short article such as the one I was asked to produce. I will therefore endeavour to structure my observations in the form of a dozen or so preliminary theses, in which, and from which I will try to draw a few conclusions on how legislators, courts, and arbitral tribunals may approach the problem of the applicable law in the future when confronted with it.