Party autonomy is the bedrock of any arbitral process. Consent of parties to a contract is essential for arbitration. Article 7 of the UNCITRAL Model Law on International Commercial Arbitration defines an ‘arbitration agreement’ as under:
“Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.”
Noted arbitrator, arbitration practitioner and author Gary Born discusses this issue as under:
“Application of an arbitration agreement to a non-signatory raises questions of formal requirements, under many legal regimes, for a “written” arbitration agreement. Those authorities which have addressed the issue have adopted a variety of means of satisfying or avoiding applicable form requirements in non-signatory contexts.
There is no rule forbidding an agreement from being signed by one entity on behalf of another entity (most obviously, in the case of agency relations). For example, though Article II(2) of the New York Convention requires an arbitration agreement that is “signed by the parties”, it is clear that a “party’s” signature can be provided by another on its behalf (most obviously, an agent, alter ego or merger partner).
To the same effect, one may also reason that the “writing” requirement of the Convention and most national laws can be satisfied by the existence of a written arbitration agreement which is consented to by a non-signatory via an “exchange” or writings (e.g., guarantees, assignments, agency agreements, other written communications).
More broadly, some authorities have held that form requirements apply only to the initial arbitration agreement itself and not to extra-contractual mechanism by which an entity may succeed to assure a party’s obligations and rights under that agreement (e.g., by merger, group of companies doctrine, alter ego theory); this reduces the relevance of form requirements in non-signatory contexts to a very small set of cases.”
Source: Barandbench
