| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 105 === Nowadays international commercial arbitration is the most widely used mechanism in addressing international commercial disputes. The cornerstone of arbitration rests on consent. In principle, only the “parties” who sign the arbitration agreement are bound to arbitrate. However, the development of international trade has made modern international commercial transactions become more and more complex, often involving several multinational parties or groups. Most of the time not all of them have signed the arbitration agreement. If disputes concerning other non-signatories (third parties) arise, in theory only the parties to the arbitration agreement can participate in the arbitration proceedings. This leaves other parties in interest outside the scope of arbitration, posing a risk of contradictory judgments if they seek to initiate court or arbitral proceedings in other places.
To address this issue, the prevailing view in practice is that consent to arbitrate need not be evidenced in writing. As long as the consent of non-signatories and signatories can be proved, non-signatories can be bound by or enjoy the benefit of the arbitration agreement. Several legal bases has been developed to address the non-signatory issues. They are mainly based on traditional contract law theories and other non-signatory theories which infer consent from specific fact patterns.
As this thesis shows, due to the need to resolve complex disputes, the fact patterns employed by arbitral tribunals in non-signatory theories in fact compromise the requirement of consent in arbitration. This phenomenon to some extent reveals that the sophistication of modern international trade has outgrown the traditional consensual nature of arbitration.
The author maintains that in most cases where non-signatory theories are applied, the consensual nature of arbitration should still be respected, since most of the cases can be addressed by traditional contract law theories. If there is still cases traditional contract law theories fail to cover, some scholar suggest if the third party claim raised is an integral part of the main dispute underlying the contract containing an arbitration clause, the third party may be joined into the arbitration under certain circumstances. This opinion presents a fundamental challenge to the universally recognized consensual nature of arbitration. It may not be accepted by most jurisdictions for now, but it provides an insightful resolution to the third party issue. It remains to be seen whether this opinion will be accepted in the future.
As for Taiwanese arbitration practice, most court judgements published show that the court still respect the consensual nature of arbitration. The arbitral tribunals and courts tend to apply traditional contract law theories to extend their jurisdiction to non-signatories (third parties). However, the author suggests that the tribunals and courts should distinguish arbitration clauses from other clauses in the main contract when applying the default rules in the civil law to interpret the arbitration clause. In certain circumstances, arbitration clauses are similar to personal covenants that cannot be interpreted to bind/ transfer to third parties.
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