From Commercial Connection To Juridical Consent: Reconsidering The “Veritable Party” In Arbitration

I. Introduction

Arbitration is founded upon consent. The jurisdiction of an arbitral tribunal ordinarily derives from an agreement by which parties elect to submit their disputes to arbitration, and the principle of party autonomy remains central to the legitimacy of that consensual jurisdiction. Yet, the absence of a signature does not invariably establish the absence of consent.

Commercial transactions, particularly those involving corporate groups, composite arrangements, agency relationships and multiple interdependent contracts, may involve entities which do not formally execute the principal contract but nevertheless participate in its negotiation, assume obligations under it, perform material aspects of it, or otherwise conduct themselves in a manner demonstrating an intention to be bound by its terms. The jurisprudence on non-signatories has accordingly developed around the recognition that contractual consent may, in appropriate circumstances, be manifested through conduct