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Title: Arbitration and third parties
Author: Brekoulakis, Stavros L.
ISNI:       0000 0004 2669 8136
Awarding Body: Queen Mary, University of London
Current Institution: Queen Mary, University of London
Date of Award: 2008
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Modern 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.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available
Keywords: Law