PhDModern international transactions have become extremely complicated, requiring
the participation of several parties for the delivery of large-scale projects. However.
multiparty commercial projects are invariably executed through several bilateral
contracts providing for bilateral dispute resolution arrangements. Some of the
contracts might include a jurisdiction clause, certain others might provide for
arbitration, while others may not contain any dispute resolution provisions at all. This
practice leads to "jurisdictional fragmentation of the multiparty commercial project"
where the several parties of a single business plan will fall under the jurisdiction of
different adjudicatory fora. Thus. a dispute arising between two persons bound by an
arbitration agreement in connection with the multiparty project will have to be
resolved exclusively by arbitration between these two parties. Other persons cannot
take part in the resolution of the dispute, even if they play an active role in the actual
business project. and thus have an interest in the outcome of the dispute. These
persons will remain third parties, both to the arbitration agreement and the arbitral
award.
This study focuses on the role and the interests of the wide group of third parties
exhibiting an interest in the dispute pending before a tribunal between two genuine
parties. The thesis, in particular, examines whether arbitration agreements can affect
persons which are not contractually bound by these agreements. In addition, the thesis
explores whether arbitral awards can affect persons that have not participated in the
arbitration proceedings
The thesis challenges the prevailing contractual approach to the issue of
arbitration, focusing exclusively on the contractual characteristics of arbitration
ag eements. According to this view, the main question is whether a non-signatory can
be contractually bound by an arbitration agreement. The study demonstrates that
focusing exclusively on the contractual nature of arbitration agreements obscures the
real issue here, which is whether arbitration agreements may have any jurisdictional
implications vis-a-vis `third parties'. Accordingly, the thesis takes a jurisdictional
approach, and argues that the discussion should be focused on the dispute and on any
implications this may have to third parties, rather than on the requirement of consent
to arbitration agreements.
Regarding the effect of arbitral awards on third parties, the thesis argues for a
third-party effect of arbitral awards specially designed for the needs of international
arbitration. More specifically, the case is made for the application of an arbitral effect
different from that of res judicata, both in terms of quality and intensity, but that is
nevertheless conclusive. It is also suggested that the third party effect of an arbitral
award should be analogous to the degree of substantive association between the
genuine and the false third parties. This is consistent with the basic premise of the
whole thesis: the relations between several parties, in terms of jurisdiction and more
generally in arbitration procedure, should correspond to the extent of association
between those parties, in terms of substantive rights, interests and liability
