Extension of the Arbitration Agreement to Non-signatory Parties under the Romanian Law and Court of International Commercial Arbitration Rules

Abstract

In spite of the principle of the common will of the parties that governs the arbitration agreement and the arbitration in general as an alternative to the State Courts, there is a growing trend of international arbitration practice and doctrine which extends the effects of the arbitration agreement to third non-signatory parties.

Arbitrators from different jurisdictions justified their extension decision on theories such as group of companies, group of contracts, piercing the corporate veil (alter ego), implicit agency relationship, or subrogatio situations.

This dissertation paper is trying to assess the applicability of these theories under the Romanian Law, with a focus on the Romanian Procedural Law and the rules of the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania.

We shall examine the situations permitted by the CICA Arbitration Rules and Romanian legislation when a third party non signatory can become part of an arbitration dispute.

All these theories will be referred globally as the Extension Theories.

In the introductive chapter, first we shall present our considerations conducting to the selection of this topic in order to become subject to the current analyse.
In the methodology chapter (Chapter II) we shall indicate the types of research performed, the order of the study and the logic behind it.
In the general consideration chapter (Chapter III) we shall propose a definition for arbitration, in close relation with the consensus principle and emphasizing the exceptions from this principle.

In the next chapter (Chapter IV) we shall present the most important theories which justify the exceptions from the party consensus principle. Flowing to this, we shall present the Extension Theories and the arguments which justify the extension of the arbitration agreement to third non signatory parties and the jurisdictions where these theories are embraced by the arbitrators and the local legislations.

In Chapter V there will be made an analysis of the obstacles in applying the Extension theories raised by Romanian legislation and CICA Rules.

Chapter VI will deal with some special situations under CICA Rules in relation with the main topic of the dissertation.

Chapter VII we will present the possibilities to extend the arbitration agreement to third non-signatory parties under CICA Rules and NCPC.

Chapter VIII is a collection of CICA cases where the extension of arbitration agreement was taken into consideration.

And finally, in the last chapter IX conclusions:

  • we shall assess if the Extension Theories are applicable even in Romania and in which situations.
  • we shall identify the situations from Romanian Civil Procedural Code standpoint which allow the extension of a case to other parties as Joinder.
  • finally, we shall present our opinion by proposing a few law adjustments in order to make the Extension Theories applicable in Romania on a wider scale.

București, iunie 2015

Radu SORA

Textul integral al lucrării

Posted in Arbitraj, Dreptul comerțului internațional, Lucrări de disertație Tagged with: , ,