A Study of the Multi-Party Issues in International Commercial Arbitration--Focusing on Recent Foreign Legislation

• Main Authors: HSIEH, HUI-TING, 謝惠婷
• Other Authors: 藍瀛芳
• Format: Others
• Language: zh-TW
• Published: 2017
• Online Access: http://ndltd.ncl.edu.tw/handle/52y8bd

碩士 === 東吳大學 === 法律學系 === 105 === In the mechanism of international commercial arbitration, it is fundamentally consensual in nature, and only those who are parties to the arbitration agreement expressed in writing could appear in the arbitral proceedings either as claimants or as defendants. That is, the effects of an arbitration agreement extend only to the agreements’ parties, and not to others. However, with the development of the international commercial trading, international commercial arbitration has become the de facto standard method of solving disputes between international corporations, and multi-party and multi-contract arbitration proceedings have become more prevalent in the recent years. In definition, there are two main types of multi-party arbitration: bi-polar and multipolar, and more specifically speaking, the multi-party constellations are including bi-polar multi-party proceeding, multi-polar arbitration proceeding, single contract with multiple parties, multiple contracts between parties and string arbitration. In arbitration, the principle that the rights and obligations of an arbitration agreement apply only to the agreement’s parties is a straightforward application of the doctrine of privity of contract, recognized in both civil and common law jurisdiction. However, the application of this principle gives rise to numerous and complex issues. Firstly, to solve the issue of holding that a non-signatory being bound by an arbitration agreement, the principal legal bases, such as agency relationship, apparent or ostensible authority, implied consent, veil-piercing and alter ego, group of companies doctrine, third-party beneficiaries, guarantors, succession, assignment and other transfers of contractual rights or obligations, group of contracts doctrine, subrogation, estoppel, ratification, corporate officers and directors, shareholder derivative rights, joint venture relations and state non-signatories are developed. Secondly, fairly choice of arbitrators and choice-of-law issues frequently arise in disputes of multi-party arbitration. Therefore, this thesis will not only focus on the principal legal bases of extending the effects of the arbitration agreements to non-signatory parties, but also focus on the recent foreign legislation, especially from the aspect of international legislation (2006 UNCITRAL Model Law and 2013 UNCITRAL Arbitration Rules), national legislation (2015 Netherlands Code of Civil Procedure, 2011 France Code of Civil Procedure, 2011 Arbitration Ordinance, Law of Hong Kong, Chapter 609, 2011 Swiss Federal Code on Civil Procedure) and institutional legislation (2017 ICC, 2016 SIAC, 2013 HKIAC, 2006 JCAA) to examine how the multi-party arbitration develops nowadays. Furthermore, the thesis tries to figure out a path concerning about the joinder or intervention of the third party and the consolation of the arbitrations for those who would like to make a contract containing arbitration clauses avoiding the difficulties of applying multi-party arbitration proceedings. At last, the thesis tries to make some suggestions concerning about the arbitration law in our country and CAA-HK international arbitration rules 2017 adopted by Chinese Arbitration Association, Hong Kong.