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Multi-Party & Multi-Contract Arbitration: Challenges And Solutions

Posted on:2005-10-06Degree:DoctorType:Dissertation
Country:ChinaCandidate:M J ChiFull Text:PDF
GTID:1116360125958939Subject:International Law
Abstract/Summary:PDF Full Text Request
International transactions are becoming increasingly complex. One highly possible consequence of such complex transactions is multi-party & multi-contract disputes, which in turn give birth to multi-party & multi-contract arbitration. Due chiefly to the imperfectness of the traditional arbitration legislations, practices and researches, the problems brought by multi-party & multi-contract arbitration can hardly be satisfactorily settled. This dissertation points out the challenges posed by multi-party & multi-contract arbitration, analyzes related theories and practices, and proposes suggestions to address these challenges. Besides prelude and conclusion sections, this dissertation contains four chapters.In the prelude section, the dissertation points out the two major challenges posed by multi-party & multi-contract arbitration, namely, the extension of arbitration clause (extending arbitration clause to non-containing contracts and non-signatories) and consolidation of arbitration. Then the author gives an introduction to the existing research on these subjects, the materials selected, the research methods and the structure of this dissertation.Chapter one deals with the preconditions for extending arbitration clause, with decision maker and the applicable law as two main focuses. As to the decision maker, the author illustrates that both courts and arbitral tribunals are competent in deciding whether and under what conditions an arbitration clause should/can be extended. In regard to the applicable law, the author respectively studies the indirect approaches and the direct approaches for deciding the applicable law, and points out the shortcoming of the fomer and the advantages of the latter.Chapter two deals with the problem of extending arbitration clause to non-containing contracts in case of multi-contract arbitration. The problem at issue is to decide whether the existing arbitration clause in one of the contracts can be extended to other contracts. The author studies relevant judicial and arbitral practices to find that, in certain cases, arbitration clause can be extended to non-containing contracts by comprehensively employing one or more of the following theories: theory of incorporation by reference, theory of business customs, theory of interpretation of arbitration clause and theory of related contracts. This chapter is then dedicated to the research of these theories.Chapter Three deals with the problem of extending arbitration clause to non-signatories in case of mult-party arbitration. This chapter first studies relevant judicial and arbitral practices to find that, in certain cases, arbitration clause can be extended to non-signatories by comprehensively employing one or more of the following theories: theory of incorporation by reference, theory of assumption, theory of estopple, theory of third-party beneficiary, theory of agency, theory of assignment of arbitration clause, theory of alter ego and theory of groups of companies. Besides studying these theories, this chapter also discusses the exceptional situations where extension of arbitration clause to non-signatories is usually prohibted.Chapter Four explores the major ensuing problem of extending arbitration clause: consolidation of arbitration. In case of multi-party & multi-contract arbitration, even if arbitration clause can be extended, there are basically two forms of arbitration to settle the disputes, namely, separate arbitration and consolidated arbitration. The formal difference not only affects the procedural aspect of the dispute settlement, but also the merits of the case. In certain cases, consolidated arbitration seems to be a desirable way to settle the disputes fairly and justly. This chapter first compares the two forms of arbitration and studies the desirability and rationale for consolidating arbitration. This chapter then reviews the practices of major arbitration institutions and court-ordered consolidation of arbitration. Finally, this chapter studies major procedural problems created by consolidated arbitrat...
Keywords/Search Tags:arbitration clause, extension of arbitration clause, consolidation of arbitration
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