RETHINKING THE CONCEPT OF CONSENT IN INTERNATIONAL COMMERCIAL ARBITRATION: A GENERAL THEORY FOR NON-SIGNATORIES

Abstract

This article is concerned with the role and relevance of non-signatories in international commercial arbitration. The article challenges the efficacy and coherence of the existing arbitration law in this area, and questions whether the traditional concept of consent for arbitration can be reconciled with complex commercial reality and non-signatories today. Instead, the article submits that a general theory on non-signatories is needed, and proposes that the theoretical basis for finding that non-signatories have rights or obligations in an arbitration should be shifted from the concept of consent to the concept of a ‘dispute’.