An Exploration On Party Expansion In International Commercial Arbitration

The often multi-party nature of international commercial transactions makes it increasingly likely that international commercial disputes will also be multi-party in nature,i.e.,develop into more complex party structures involving multiple subjects.Such multi-party disputes create requirements for the expansion of the scope of parties to arbitral proceedings and pose a challenge to the advancement of international arbitration proceedings.In the practice of international commercial arbitration,the expansion of parties may be achieved through,first,the consolidation of arbitration proceedings;second,the addition of parties to the arbitration upon request;and third,the introduction of a third person to the arbitral tribunal.The expansion of the scope of parties to arbitration proceedings is based on theories such as agency theory and beneficial third party theory,as well as the evolution of the structure of international commercial transactions,the trend towards globalization of the system and the behavior of arbitration participants.However,despite the growing acceptance of the expansion of the scope of parties to be governed by arbitration proceedings in international commercial arbitration,there is currently no uniform or generally accepted international regime in this regard.For example,the decision to extend the scope of the parties is left to the sole discretion of the arbitral tribunal or to the sole administration of the courts;the right to move for new parties is left to the original parties or to third parties,or to the arbitral tribunal to decide on the introduction of new parties.In terms of the subjects entitled to file motions for additional parties,there are provisions for the original party or a third party to make the request,and provisions for the tribunal to decide to introduce new parties.This also indicates that the degree of acceptance of party expansion varies in judicial practice,and the setting of the specific system remains controversial.This is because the advancement of procedures related to party extensions may bring about shocks to the value of arbitration,such as leading to limited party autonomy,leading to challenges to the efficiency of arbitration,leading to challenges to the confidentiality of arbitration and leading to obstacles to the validity of arbitral awards.The most typical example of this is the limitation of party autonomy,not only in terms of judicial involvement in the overall autonomy of the arbitration,but also,and more directly,in terms of the autonomy of the participants in the arbitration proceedings.For example,in the case of ex officio addition of parties by the arbitral tribunal,even without the consent of the original parties to the arbitration proceedings,if the arbitral tribunal deems it necessary to introduce a third person into the arbitration proceedings,unless the measure is contrary to the mandatory provisions of the applicable law or otherwise agreed by the parties,then the arbitral tribunal has the right to introduce the third person without the consent of the parties,which is contrary to party autonomy.For example,the involvement of multiple parties in the arbitration process can lead to complications in the selection of arbitrators.Many rules do not specify how new parties to the arbitration process can participate in the selection of arbitrators,creating disputes that deprive parties of their right to freely appoint arbitrators and undermine their confidence in the arbitration process.Equal treatment of the parties in the appointment of arbitrators is a matter of public policy,and a breach of this principle would constitute a violation of public policy unless the parties expressly waive their respective rights after the dispute has arisen.This may result in the arbitral award being set aside or denied recognition and enforcement.This leaves the validity of the arbitral award unprotected.The stereotypical refusal to innovate and develop the arbitration process on the grounds of preserving party autonomy is unreasonable and contrary to what is needed in reality.In response to a series of problems caused by the expansion of parties,we should propose solutions for the purpose of providing parties with a more convenient and efficient dispute resolution experience,while taking into account the advantages of arbitration’s own autonomy value.First,the arbitral tribunal should be empowered to act as the subject of the motion to extend the parties,and the court should be considered as an assistance status.Second,it should strengthen the succession of arbitration proceedings after the expansion of parties and improve the provisions on the selection of arbitrators for different types of parties who join the arbitration proceedings at different points in time.Finally,it is also necessary to improve the system of rules relating to the determination of the consent to arbitration,and to clarify the mode of initiation of each type of party extension by dividing the hierarchy of respect for the parties’ wishes,so that the parties’ rights and interests are maximally protected.