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Founded on the principle of l‘autonomie de la volonté, arbitration law finds its sanction in the

consent of parties. This is so much so that the Supreme Court of Texas has described ―consent‖
as the ―first principle‖ of arbitration. 1

The importance of consent in arbitration proceedings may be gauged by the adumbration of the
United States [―U.S.‖] Supreme Court in Stolt-Nielsen S.A. v. Animal Feeds International
2
Corp.2 wherein it stated that arbitration ―is a matter of consent, not coercion‖.

Many courts have held- and commentators have argued-that third parties have no right to
intervene or join in an arbitration absent the consent of the existing parties.3

The “same parties” requirement means that, as a rule, a decision affects only those that took
part in the proceedings that resulted in the decision: real parties as opposed to third parties.
This requirement serves the fundamental principle of due process, that is, the right of the party
to be heard.

However there are very few national laws that provide for third-party claims, and when they
do they largely state the obvious allowing third-party claims on the basis of unanimous
consensus among all the relevant parties, including the third party (e.g. the English Arbitration
Act, s.35).
Most of them though will allow third-party claims only on the condition of unanimous consent
of all the relevant parties, including the original and the third parties (see for example, the 2010
UNCITRAL Arbitration Rules Art.17(5)).

Relevant Provisions

1
Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960); Steelworkers v Warrior & Gulf Nav. Co., 363 U.S. 574
(1960); Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).

2
559 U.S. 662 (2010).

3
1 GEORGES R. DELAUME, TRANSNATIONAL CONTRACTS 310 (1988); REDFERN & HUNTER, supra note 5, at 184;
Charles S. Baldwin, IV, Protecting Confidential and Proprietary Commercial Information in International Arbitration, 31
TEx. INT'L L.J. 451, 467 (1996); John Milligan-Whyte & Mary Cannon Veed, Bermudian, English and American
ReinsuranceArbitrationLaw and Practiceand Alternative Dispute Resolution Methods, 25 TORT & INS. L.J. 120, 139

(1989); Alan Scott Rau & Edward F. Sherman, Tradition and Innovation in InternationalArbitrationProcedure,30 TEX.
INT'L L.J. 89, 91 (1995); Stipanowich, supranote 1, at 506.
 2010 UNCITRAL Rules

Article 17(5)

The arbitral tribunal may, at the request of any party, allow one or more third persons to be
joined in the arbitration as a party provided such person is a party to the arbitration
agreement, unless the arbitral tribunal finds, after giving all parties, including the person or
persons to be joined, the opportunity to be heard, that joinder should not be permitted because
of prejudice to any of those parties. The arbitral tribunal may make a single award or several
awards in respect of all parties so involved in the arbitration.

The newly-revised UNCITRAL Rules allow one or more third parties to be joined to the
arbitration provided they are a party to the arbitration agreement, unless such joinder would
result in prejudice to any of the parties. This provision takes into account the practice of SIAC
(Singapore) and the HKIAC (Hong Kong) arbitration institutions and is based on Article 22.1
LCIA. 4

 2010 Netherlands Arbitration Institute Rules (“NAI Rules”)

Article 41 - Third Parties

1. A third party who has an interest in the outcome of arbitral proceedings to which these Rules
apply may request the arbitral tribunal for permission to join the proceedings or to intervene
therein.

*** *

3. A party who claims to be indemnified by a third party may serve a notice of joinder on such
a party. A copy of the notice shall be sent without delay to the arbitral tribunal, the other party
and the Administrator.

4. The joinder, intervention or joinder for the claim of indemnity may only be permitted by the
arbitral tribunal, having heard the parties and the third party, if the third party accedes to the

4 Matthew Skinner/Sam Lutrell/Tom Levi, The UNCITRAL Arbitration Rules 2010 in Asian International Arbitration
Journal, 2011, Vol. 7 Issue 1, pp. 76-96, p. 81.
arbitration agreement by an agreement in writing between him and the parties to the
arbitration agreement. On the grant of request for joinder, intervention or joinder for the claim
of indemnity, the third party becomes a party to the arbitral proceedings.

The 2010 NAI Rules go further than the LCIA and UNCITRAL Rules, in allowing a third party
with an interest in the outcome of the arbitration, such as an “imminent loss of rights, a
prejudice or the risk of conflicting decisions,” to request permission to join . 5The NAI joinder
provision nonetheless requires the third party to accede to the arbitration agreement, with the
consequence that all parties must consent, in writing, to such accession. Intervention and
joinder of a third party must be distinguished under the NAI Rules, since the former allows a
third party to fully participate in the proceedings, whereas the latter only allows the third party
the possibility to support one of the existing parties.

 2006 Vienna Rules

Article 15 – Multiparty Proceedings

1. A claim against two or more Respondents shall be admissible only if the Centre has
jurisdiction for all of the Respondents, and, in the case of proceedings before an arbitral
tribunal, if all Claimants have nominated the same arbitrator, and:

a) If the applicable law positively provides that the claim is to be directed against several
persons; or

b) If all Respondents are by the applicable law in legal accord or are bound by the same facts
or are joint and severally bound; or

c) If the admissibility of multiparty proceedings has been agreed upon; or

d) If all Respondents submit to multiparty proceedings and, in the case of proceedings before
an arbitral tribunal, all Respondents nominate the same arbitrator; or

5 Bommel Van der Bend/Marnix Leijten/Marc Ynzonides, Part II: A Commentary to the NAI Rules, Section 4: Procedure
(Articles 20-42) in A Guide to the NAI Arbitration Rules including a Commentary on Dutch Arbitration Law, The
Netherlands 2009, p. 72.
e) If one or more of the Respondents on whom the claim was served fails or fail to provide the
particulars mentioned in Article 10 paragraph 2, b) and c) within the thirty-day time-limit
(Article 10 paragraph 1).

8. In cases other than those mentioned in paragraph 1 of the present Article, the consolidation
of two or more disputes shall be admissible only if the same arbitrators have been appointed
in all the disputes that are to be consolidated and if all parties and the sole arbitrator (arbitral
tribunal) agree.

9. The decision whether multiparty proceedings, as per paragraph 1 of this Article, are
admissible, shall be taken by the sole arbitrator (the arbitral tribunal) upon application of one
of the Respondents.

If the admissibility of multiparty proceedings is denied, the arbitral proceedings return to the
stage they were in for the Respondents before the sole arbitrator (the arbitral tribunal) was
appointed.

Article 15 of the Rules of Arbitration and Conciliation of the International Arbitral Centre of
the Austrian Federal Economic Chamber (“Vienna Rules”) also offers the possibility of joining
third parties, even when they are non-signatories to the arbitration agreement in question.
Following the predominant view, however, joinder under the Vienna Rules requires the
consent, whether implied or express, of all parties 6.

 Belgian Centre for Mediation and Arbitration (“CEPANI”) (2013),

As stated in art. 11 of the arbitration rules of the Belgian Centre for Mediation and Arbitration
(“CEPANI”) (2013),

A third party may request to intervene in the pro- ceedings and any party to the proceedings
may seek to have a third party joined. The intervention may be al- lowed when the third party

6 Franz T. Schwarz/Christian W. Konrad, para. 15-075 and 15- 077.


and the parties to the dis- pute have agreed to have recourse to arbitration under the CEPANI
12
Rules.

 Netherland Code of Civil Procedure (1986), art. 1054

In Netherland Code of Civil Procedure (1986), art. 1054, it sets forth the most detailed
provisions regarding third party in- volvement ever, which regards third party in arbitration
similar to the one in civil proceeding. It applies to two situations: The first possibility is that
the third party with crucial interests with the result of the proceeding should apply in written;
The other possi- bility is that the parties of the existing proceeding believe that the third party
needs to make compensation and apply to grab the third party into the existing proceeding. It
also requires a written con- sent of all parties. Other similar provisions can be found in the
Sixth Part of Belgian Judicial Code (Amended 1985), art. 1696 bis. (Note that the Belgian
Judicial Code not only requests all parties’ written consent, it also requires the consent from
the Tribunal).

 SIAC Arbitration Rules, 2013

Rule 24.1(b) of the SIAC Arbitration Rules, 2013 allows parties to submit a request to join a
third party to the arbitration with the written consent of such third party, it may only be done
provided that such person is a party to the arbitration agreement.

Relevant Case Law

The Ninth Circuit (Court of Appeals), in Paracor Finance Inc. & Ors.v. General Electric Capital
Corporation,7 followed the ratio of Britton v. Co-op Banking Group8 where it was held that an
arbitration clause is like a contractual right and may not be invoked by a non-signatory,

7
Paracor Finance Inc. & Ors.v. General Electric Capital Corporation, 96 F.3d 1151 (U.S.).

8
Britton v. Co-op Banking Group, 4 F.3d. 742 (9th Cir. 1993).

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