Editor's Note: The Third Seminar of the International Commercial Expert Committee of the Supreme People's Court and Reappointment Ceremony of the First Group of Expert Members was held successfully on Augest 25, 2022. Over 40 experts from more than 20 countries and regions focused on the theme of the Development, Challenges and Countermeasures of Cross-Border Commercial Disputes during the seminar. Extensive and in-depth discussions were held within the framework of four specific issues. The texts of speeches delivered by the participants would be posted on the CICC's website. 

ISSUES AND CHALLENGES IN COMPLEX COMMERCIAL DISPUTES RESOLUTION

(Abstract)

Tao Jingzhou

Avocat a la Cour de Paris; Independent Arbitrator; Member of the International Commercial Expert Committee of the Supreme People's Court, Expert Committee of China International Economic and Trade Arbitration Commission, International Advisory Board of Hong Kong International Arbitration Center and Editorial Board of Global Arbitration Review

Since international commercial activities bear the nature of diversity, cross-border, and complexity, international commercial dispute resolution has faced many new challenges. This article seeks to provide a brief introduction and analysis of several notable issues arising in commercial dispute resolution. 

1. Multi-Party Arbitration

1.1 The Appointment of Arbitrator

Multi-party arbitration proceedings have all revealed the complexity of selecting arbitrators. Multi-party arbitration does not concern the validity of arbitration agreements, but many other aspects, such as the nomination of arbitrators, will differ greatly from the two parties only arbitration.[1] For example, the multiple parties as respondents may not share the same interests, or one of them may share the same interests with the claimant or may simply be a puppet party that must join the arbitration because it is involved in the arbitration. In these scenarios, the respondents' certain procedural rights may not be fully exercised.[2]

One of the important characteristics of modern international commercial arbitration is the parties' right to nominate arbitrators. Parties' right to appoint arbitrators appears to be mandatory and this right has a substantive connection to arbitration.[3] Parties normally have different priorities regarding the appointment of arbitrators. Despite the arbitration institutions are able to substitute for the parties in choosing impartial and independent arbitrators, they are unable to fully address the differing concerns of the parties. For parties to select arbitrators, the impartiality and neutrality of arbitrators are not necessarily the only factors to consider. Parties would also take into account the following aspects, including but not limited to, the education background, professionalism, personal experience, expertise of specific industry or technical issues, reputation (like, whether the potential candidate is recognized by other arbitrators and whether the candidate's opinion will carry any weight before the arbitral tribunal) and time commitment to the case.[4] Furthermore, having the right to choose the arbitrator will usually give the party confidence that the tribunal will balance the interests of the parties in the case.[5]

1.1.1 The Current Practice of International and Chinese Arbitration Institutions

The Dutco case, heard by the French Cour de cassation in 1992, had a huge impact on the procedure of appointing arbitrators in multi-party arbitration.[6] In that case, the French Cour de cassation held that it would be contrary to public policy if one of the parties to the arbitration agreement had the right to appoint an arbitrator, while the other party did not.[7] Following the Dutco case, a number of international arbitral institutions developed new rules for the appointment of arbitrators in multi-party arbitration proceedings.[8]

The first situation refers to the appointment of all arbitrators by the arbitral institution in the event that a party containing more than one party fails to jointly select an arbitrator. Articles 12(6)-(8) of the Arbitration Rules (2021) of ICC International Court of Arbitration provide for the right of the International Court of Arbitration to appoint all arbitrators in such a situation.[9] Similar to the ICC Arbitration Rules, the arbitration rules of most international arbitration institutions and international organizations also provide for authorizing arbitral institutions to appoint all members of the arbitral tribunal when multiple parties have not jointly selected arbitrator. For example, the UNCITRAL Arbitration Rules (2021) provide that the appointing authority has full right to appoint arbitrators in multi-party arbitral proceedings and, in doing so, may revoke any appointment already made and appoint or reappoint each of the arbitrators. There are similar provisions in Article 17(5) of the SCC Arbitration Rules (2017) and Article 29 of the China International Economic and Trade Arbitration Commission ("CIETAC") Arbitration Rules (2015).[10]

Second, the arbitral institution would appoint all arbitrators when the disputant parties failed to reach an agreement on the division of two separate "sides" for the formation of the arbitral tribunal (as Claimants on one side and Respondents on the other side, each side nominating a single arbitrator). Article 8 of the LCIA Arbitration Rules provides for multi-party arbitration[11] states that the LCIA Court shall appoint the arbitral tribunal unless the disputant parties submit a written agreement that they represent collectively two separate "sides" for the formation of the Arbitral Tribunal. If the parties reach a consensus on the division into two camps, Article 7 will apply in nominating the arbitrators, where the LCIA Court may only appoint an arbitrator in the absence of a nomination. It is, however, very unlikely to happen; since it is usually possible for the multi-parties side to jointly appoint an arbitrator if the disputant parties can reach an agreement on the division of camps.[12] Compared with the ICC Arbitration Rules on the appointment of arbitrators for multi-party arbitration, the LCIA Arbitration Rules are more likely to nominate all arbitrators without regard to the parties' appointment.[13]

Some other international arbitration institutions also operate similarly to the LCIA, such as article 15 of the ACICA Arbitration Rules (2021). In addition, Article 8.2 of the Hong Kong International Arbitration Centre ("HKIAC") Administered Arbitration Rules[14] seems to present a combination of the above mentioned first and second scenarios, highlighting the flexibility of the appointing authority in the appointment of arbitrators in multi-party arbitration.[15]

Third, an arbitration institution may appoint the arbitrator for the Claimant side and/or the Respondent side containing multiple parties if they fail to appoint jointly the arbitrator. It is a less common approach to international arbitration institutions, while most Chinese arbitration institutions adopt this path. For example, according to Article 20(3) of the Beijing Arbitration Commission ("BAC") Arbitration Rules (2022), Article 30(1) of the Shenzhen Court of International Arbitration ("SCIA") Arbitration Rules (2022) and Article 31(1) of the SAC Arbitration Rules (2022), if one party with multiple members cannot jointly appoint the arbitrator, the arbitral institution shall appoint the arbitrator on behalf of that party without prejudice to the other party's right to appoint the arbitrator.[16]

Some scholars have commented that the practice of the person entitled to appoint appointing only the arbitrator who should have been chosen by the parties when the parties have failed to jointly choose or jointly appoint an arbitrator may have the problem of making it impossible for a party to enjoy the right to appoint an arbitrator in the first place. However, from the institution's point of view, it has no way to determine the real reasons why multiple parties cannot appoint an arbitrator, but can only appoint an arbitrator for multiple parties in an impartial and neutral manner while respecting the right of a party to choose an arbitrator. This approach did not sufficiently consider the issue of procedural justice raised by the French Dutco case.

1.1.2 The Relationship among the Arbitration Agreement, the Arbitration Rules of Arbitration Institutions, and the China's Arbitration Law

First of all, arbitration agreement of the parties is superior to the arbitration rules. The parties can agree on the selection of the arbitrators when there are multiple members and exclude the application of the arbitration rules. According to the case heard before The Supreme People's Court of The People's Republic of China ("SPC") No. (2019) Zui Gao Fa Min Te No. 4, if the arbitration clause agreed by the parties has emphasized expressly that each side to the arbitration shall nominate an arbitrator respectively, the parties' agreement shall prevail over Article 27(3) of the CIETAC Arbitration Rules which provides that CIETAC is entitled to appoint the whole arbitral tribunal.[17]

Secondly, Article 31(1) of the China's Arbitration Law stipulates that, "If the parties agree that the arbitration tribunal shall be composed of three arbitrators, they shall each appoint or entrust the chairman of the arbitration commission to appoint one arbitrator. The parties shall jointly select or jointly entrust the chairman of the arbitration commission to appoint the third arbitrator who shall be the presiding arbitrator". Article 32 states that, "If the parties fail to agree on the method of formation of the arbitration tribunal or to select the arbitrators within the time limit specified in the rules of arbitration, the arbitrators shall be appointed by the chairman of the arbitration commission." Some scholars commented that Article 31(1) stipulates the right of each party to appoint an arbitrator. Article 32 points out that the chairman can have the right to appoint an arbitrator only if a party fails to choose an arbitrator within the time limit, but it is not clear whether the Article 32 is a mandatory norm or a discretionary norm. At this point, if the claimant has selected the arbitrator within the time limit, but the arbitration institution "overturned" its appointment in accordance with the arbitration rules (such as the CIETAC Arbitration Rules) and appointed the whole arbitral tribunal, there seems to be no basis under the Arbitration Law. The losing party may also raise challenges in terms of enforcement or apply for revocation of award.[18] In the event of a conflict between the right of the parties to appoint an arbitrator and the equal rights of the parties to appoint an arbitrator, it is an open question as to which right prevails.

1.2 Arbitration Proceedings in Multi-Party Arbitration

The difficulty with multi-party arbitration proceedings is that the different disputes may have become a tangled web and it is difficult to see the causal relationship between cause and effect. There are still questions as to whether multi-party arbitration is more efficient and convenient than initiating individual arbitration proceedings for separate claims.[19]

In addition to the appointment of arbitrators, the procedures of multi-party arbitration would involve more complex issues. For example, when A institutes an arbitration against B and C, it is common for B or/and C to make a counterclaim against A, and it is also possible that B intends to file a counterclaim against C. Whereas, approving such counterclaims would tremendously complicate the arbitral proceedings on the aspects of the composition of the arbitral tribunal, the submission of documents, and the confrontation parties and so on. In some cases, it is recommended that parties pursue separate claims in a new arbitration proceeding instead of counterclaims.[20]

If party autonomy is the first principle applicable to arbitration proceedings, then fair treatment is the second principle, of equal importance.[21] Unequal treatment may lead to denial of recognition and enforcement of the awards. Therefore, in the case of multiple parties, based on the principle of openness and fairness, all arbitration documents and statements should be made known to all parties, not limited to the parties who have presented their claims or pleadings. Furthermore, during the hearing, both parties shall be treated impartially and fairly, and enjoy equal opportunity to present their case.[22]

2. Joinder of Additional Parties

2.1 Background

Joinder of additional parties means that a third party is required to join a pending arbitral proceeding.[23] In complex contractual relationships and disputes, additional parties are permitted to join the arbitration proceeding to avoid conflict rulings and improve the efficiency.[24]

Joinder of additional parties often involves two circumstances. First, the additional party is a party to the arbitration agreement. For example, Article 1045(3)(4) of the Netherlands Code of Civil Procedure provides that the arbitral tribunal may permit a third party to join, intervene, or jointly claim for indemnity after having heard the opinions of other parties, if the third party applies to join the arbitration based on the concerned arbitration agreement to which it is a party. In such case, the third party would become a party to the arbitral proceedings, and unless the parties have agreed otherwise, the arbitral tribunal shall determine the further conduct of the proceedings.[25] In the business world, it is a common practice for multiple entities to reach an agreement to finance a project or share the risks involved.[26]

Second, the additional party is not a party to the arbitration agreement, but it has reached an agreement with the parties to the arbitration proceedings to join the arbitration. Then, the third party who is not a signatory to the arbitration agreement can apply to join the arbitration proceedings.[27] The agreement reached among the parties and the third person is the key, which is in line with the core principle of arbitration, namely, the principle of party autonomy. Litigation takes a different approach, where it is easier for a third party to join the proceeding, regardless of any agreement between the parties.[28]

2.2 Relevant Provisions

Currently, China's Arbitration Law is silent on the joinder of additional parties. Most arbitration institutions, however, lay down rules on this issue in their arbitration rules.

Article 18 of the CIETAC Arbitration Rules (2015 edition) states,"(1) During the arbitral proceedings, a party wishing to join an additional party to the arbitration may file the Request for Joinder with CIETAC, based on the arbitration agreement invoked in the arbitration that prima facie binds the additional party. Where the Request for Joinder is filed after the formation of the arbitral tribunal, a decision shall be made by CIETAC after the arbitral tribunal hears from all parties including the additional party if the arbitral tribunal considers the joinder necessary. The date on which the Arbitration Court receives the Request for Joinder shall be deemed to be the date of the commencement of arbitration against the additional party. [...] (7) CIETAC shall have the power to decide not to join an additional party where the additional party is prima facie not bound by the arbitration agreement invoked in the arbitration, or where any other circumstance exists that makes the joinder inappropriate."

Article 14 of the BAC Arbitration Rules (2022) states that before the Arbitral Tribunal is constituted, the parties may apply to join an additional party to the arbitration under the same arbitration agreement, subject to approval by the BAC. After the Arbitral Tribunal has been constituted, no application for joinder will be accepted, unless the Claimant, the Respondent, and the party to be joined otherwise agree. Article 20 of the SCIA Arbitration Rules (2020) points out that,"(1) Any party in a pending arbitration may apply in writing to join an additional party under the same arbitration agreement to the arbitration. The decision on whether to grant such joinder shall be made by the arbitral tribunal or, if it is not yet formed, by the SCIA. (2) Subject to the unanimous consent of the parties and the additional party, the additional party may apply in writing to join the arbitration proceedings. The decision on whether to accept such application shall be made by the arbitral tribunal or, if it is not yet formed, by the SCIA."[29] 

Article 27 of the Arbitration Rules of Guangzhou Arbitration Commission (2021) stipulates that,"(1) If an additional party who is a party to the same arbitration agreement applies to become a joint claimant, the consent of the Claimant must be obtained. [...] ; (2) Where the party applies to add an additional party who is a party to the same arbitration agreement to be a joint respondent, the tribunal shall, at its discretion, decide whether or not to accept the application, or, if the tribunal has not been constituted, the Commission shall make the decision. [...]; (4) The joinder of an additional party, without an arbitration agreement into the arbitration proceedings to become a party thereto, shall require unanimous consent by the additional party and all the parties concerned. The tribunal shall, at its discretion, decide whether or not to accept, or, if the tribunal has not been constituted, the Commission shall make the decision."

Article 38 of the China (Shanghai) Pilot Free Trade Zone Arbitration Rules provides that the Claimant and the Respondent may file a written application, requesting a third party to be joined in arbitration with its consent. A third party may also apply in writing to become a party in arbitration with the consent of both parties. The tribunal shall decide on the joinder of a third party, or, if the tribunal has not been constituted, the Secretariat shall make such a decision.

The aforementioned rules show that China currently supports both the aforementioned accession of a party to the arbitration agreement and the accession of a party that is not a party to the arbitration agreement but to which all parties have agreed. The modalities include an application for joinder by an outsider and an application for addition by a party. The timing is such that, in general, an outsider may apply to join the arbitration, but it is up to the arbitral institution to decide whether to agree to join before the tribunal is constituted. After the constitution of the arbitral tribunal, it is the arbitral tribunal that ultimately decides whether to grant the third party's application for joinder.[30]

In the absence of a written arbitration agreement and the relevant parties afterwards have not reached an agreement to arbitrate, the joinder of an additional party may create a risk of revoking arbitral award.[31] While many Chinese arbitration institutions have added the joinder system to their arbitration rules, its chances of implementation are slim. Since there are no clear legal basis and some other relevant factors, Chinese arbitration institutions are quite cautious about the joinder of additional parties. Normally, agreement to arbitrate of all parties (including the additional party) is required, but at the same time, it is difficult to achieve such an agreement as the parties are already in the dispute. Some legal practitioners have suggested that when the arbitration law is amended, it is recommended that a system of additional parties be set up in the arbitration proceedings, providing that the arbitral tribunal (commission) has the right to decide whether to add other third parties and that there is no need to specify what other parties should be consulted.[32] For example, in the case of additional parties who are parties to the arbitration agreement, an arbitral tribunal should have the right to decide whether to add the third party to the arbitration without the consent of the claimant, respondent, or additional party. Otherwise, the third-party system of arbitration provided for in the arbitration rules would be largely unsuccessful in practice.[33]

2.3 The Rights of Additional Parties to Appoint Arbitrators and Others

A question remains as to whether the additional party joining the arbitration has the right to independently appoint an arbitrator. Some commentators stated that depriving the third party's right to appoint an arbitrator may constitute procedural impropriety since its interests will also be affected by the arbitral award, but giving the third party the same right to appoint an arbitrator as the existing parties may also incur oppositions. Furthermore, the presence of multiple third parties may result in too many arbitrators, which would hinder the smooth running of the arbitration proceedings. If a third party is assigned to the claimant side or respondent side, it is still difficult for them to reach an agreement on the appointment of an arbitrator.[34]

Article 30(3) of the Arbitration Rules of China Guangzhou Arbitration Commission (2017) provides that if there exists a third party, the third party may select an arbitrator jointly with either the Claimant or the Respondent, as the case may be. In case of a failure to jointly select an arbitrator, all members of the Arbitral Tribunal shall then be appointed by the Chairperson of the Commission. However, this article has been deleted from the 2021 version of the Arbitration Rules.

3. Jurisdiction over Non-Signatories

3.1 Background

The effect of the arbitration agreement on the non-signatory party is the situation in which the arbitration agreement can bind a person who has not signed the written arbitration agreement in certain circumstances, exceptionally breaking the limits of the relativity of the arbitration agreement, also known as the expansion of the effect of the arbitration agreement on the non-signatory party.[35] This has been described by Lord Collins as one of the most complex issues in international commercial arbitration.[36] In complex commercial transactions, such as manufacturing contracts or construction contracts, it is common to see agreements/contracts are executed by agents, contractors, and other "intermediate" parties. Although the signatories of the agreement are parties to the agreement, there are also some circumstances where non-signatories to an agreement may also become parties to the arbitration agreement through ostensible delegation or ostensible authorization, or because they are third-party beneficiaries and others.[37] Thus, to a certain extent, the "arm" of the arbitration agreement is "stretching" (the long-arm of arbitration agreements). The expansion of arbitration agreements to non-signatories has been attributed to various factors, including an update and improvement in jurisprudence, improvements in law, in particular successive reforms of arbitration legislation by the United Nations and countries since the 1970s to promote arbitration, greater transfer of jurisdiction from the court to the arbitral tribunal, and the requirement in some circumstances for non-signatories to be bound by the arbitral agreement to achieve commercial purposes.[38] This issue is also a hot topic in the international arbitration practice.[39]

3.2 Chinese Law on the Expansion of Arbitration Agreements

China's Arbitration Law does not provide for the expansion of arbitration agreements to other parties. However, Chinese judicial interpretations stipulate the following three situations for the expansion of arbitration agreement: first, Article 8 of the Interpretation of the Supreme People's Court concerning Some Issues on Application of the Arbitration Law of the People's Republic of China stipulates that, unless the parties concerned have otherwise agreed between each other when concluding the agreement for arbitration, where a party concerned is merged, divided, or has inherited, the agreement for arbitration shall be binding upon the successor or inheritor of its rights and obligations. Second, Article 9 of the Interpretation of the Supreme People's Court concerning Some Issues on Application of the Arbitration Law of the People's Republic of China provides that，"Where the credits or debts are entirely or partially assigned, the agreement for arbitration shall be binding upon the assignee, unless the parties concerned have otherwise agreed, or the assignee explicitly objects to the assignment of the credits or debts or does not know there is a separate agreement for arbitration". Similar provisions also exist in extraterritorial laws.[40] Third, Article 12 of the Interpretation (IV) of the Supreme People's Court on Several Issues concerning the Application of the Insurance Law of the People's Republic of China stipulates that: "Where the insurer files a lawsuit on subrogation against the third party causing the insured incident as the defendant, the court having jurisdiction shall be determined according to the legal relationship between the insured and the third party". Accordingly, the arbitration agreement existing between the insured and the third party binds the insurer who files a lawsuit for subrogation. Article 98 of the Minutes of the National Courts' Civil and Commercial Trial Work Conference stipulates that in non-foreign-related disputes, an arbitration agreement reached between the insured and a third party before the insured event occurs is binding on the insurer.[41]

3.3 Judicial Practice of the Expansion of Arbitration Agreements

In addition to the above legal provisions, there are other attempts in Chinese judicial practice and international arbitration practice to expand the validity of arbitration agreements to third parties.

First, whether the arbitration clause of the main contract can be applied to a guaranteed contract. Article 21 of the Interpretation of the Supreme People's Court of the Application of the Relevant Guarantee System of the Civil Code of the People's Republic of China stipulates that,"Where a principal contract or guarantee contract contains an arbitration clause, the people's court shall have no jurisdiction over a dispute between the parties to the contract containing the arbitration clause. If the creditor sues the debtor and the guarantor together, the competent court shall be determined in accordance with the principal contract. If the creditor only sues the guarantor as permitted by law, the competent court shall be determined in accordance with the guarantee contract". According to this article, the dispute resolution clauses of the main contract and the guarantee contract are independent of each other. But when the main contract and the guarantee contract are subject to litigation and the creditor initiates the litigation based on both the main contract and the guarantee contract, the competent court shall determine the method of dispute resolution in accordance with the main contract.[42]

Second, whether the arbitration clause of the main contract is applicable to the supplementary agreement. In the Supreme People's Court Gazette Case No. (2015) Zhi Shen Zi No. 33, the SPC has held that, "The parties have agreed in the main contract that their disputes will be resolved by an arbitration institution. Whether the supplementary agreement can be applied to that agreement depends on whether the main contract and the supplementary agreement are separable. If the main contract and thesupplementary agreement are independent and separable from each other, in the absence of any special agreement, the dispute resolution for the two contracts shall be handled separately as agreed therein. However, if the supplementary agreement is a supplement to the content of the main contract and not independent from the main contract, the dispute resolution clause agreed in the main contract also applies to the supplementary agreement".[43]

In Chinese judicial practice, courts usually determine the expansion of arbitration agreement from the following aspects:the degree to which the supplementary agreement and the main contract are related; whether the parties to the supplementary agreement is aware of the contents of main contract; whether the supplementary agreement specifies a dispute resolution method separately or modifies the arbitration clause of the main contract, etc. In the cases No. (2020) Jing 04 Min Te No. 507 and (2020) Jing 04 Min Te No. 349, since supplementary agreements were considered to be revisions of the terms of main contracts and were agreed as an integral part of the main contract, Beijing No.4 Intermediate People's Court found that the supplementary agreement should be bound by the arbitration clause of the main contract.[44]

As to Chinese latest legislation, Article 24 of the revised Arbitration Law (Draft for Public Comments) issued in July 2021 stipulates that:，"When the dispute involves a main contract and an ancillary contract, and the arbitration agreement between the main contract and the ancillary contract is inconsistent, the agreement of the main contract shall prevail. If no arbitration agreement is agreed in the ancillary contract, the arbitration agreement of the main contract is valid for the parties to the ancillary contract". Article 97 of the Minutes of the National Court's Symposium on Foreign-related Commercial and Maritime Trial issued in early 2022 stipulates that，"If the parties agree on litigation and arbitration, two different dispute resolution methods, respectively in the main contract and the ancillary contract, the dispute resolution method shall be determined respectively according to the agreement of the main contract and the ancillary contract. If the parties agree that the dispute resolution method is arbitration in the main contract, and the ancillary contract does not have a dispute resolution method clause, the arbitration agreement in the main contract shall not bind the parties to the ancillary contract, except the parties to the main contract are same with that of ancillary contracts". Consequently, the arbitration clause of the main contract only applies to ancillary contracts when the parties are the same.[45]

Third, whether a shareholder derivative suit is bound by the arbitration agreement between the company and a third party. Chinese law is silent on this issue. In the case No. (2019) Zui Gao Fa Min Xia Zhong No. 404, as to "whether a shareholder bringing a shareholder derivative suit is bound by the jurisdiction provisions of a contract between the company and another person", the SPC held that，"A shareholder derivative suit is a lawsuit directly initiated by a shareholder in its own name but for the benefit of the company, and the legal consequences are attributable to the company. Therefore, the lawsuit brought by the shareholder representative against the third party is bound by the contractual jurisdiction clause entered into between the company and the third party". Chinese courts in cases No. (2008) Zhe Min Si Zhong Zi No. 68, (2016) Yue Min Zhong No. 468, (2017) Su Min Chu No. 24 and (2019) E Min Xia Zhong No. 150 all held that shareholders commencing claims against third party shall be subject to an arbitration agreement between the company and the third party.[46] Article 25 of the revised Arbitration Law (Draft for Public Comments) also stipulates that: "Where a shareholder of a company or a limited partner of a partnership enterprise claims rights against the other party on behalf of the company or partnership enterprise in its own name in accordance with the law, the arbitration agreement signed between the company or partnership enterprise and the other party is valid."

Fourth, the Group of Companies Doctrine. This doctrine originated from the "Dow Chemical v. Isover Saint Gobain" case heard by the ICC Arbitration Tribunal in 1982.[47] It was after this case that a series of similar cases appeared and academics call this kind of situation and judgment standard as the Group of Companies Doctrine.[48]

In the Dow Chemical case, the Claimant Dow Chemical (the US parentcompany), its French subsidiary and two Swiss subsidiaries jointly brought an arbitration claim to the ICC against the Isover company of Saint-Gobain Group. However, only the two Swiss subsidiaries had signed sales contracts with Isover that contained an arbitration clause. The respondent argued that the US Dow Chemical Company and its French subsidiary were not qualified as parties to the arbitration because the two companies were not signatories to the arbitration agreement. The arbitral tribunal examined the relationship between the four Dow Chemical companies in detail and held that the four companies constituted "the same economic entity" and that the parent company Dow Chemical in this case owned and exercised absolute control over its subsidiaries and participated in the performance of the concerned contract. Dow Chemical is actually at the center of the contractual relationship within the company group. The French subsidiary is also substantively involved in the negotiation, conclusion, performance, and rescission of the concerned contract, thus it becomes a de facto party to the contract and the arbitration clause.[49] After this case, the general counsel of Saint-Gobain Group told the author that he no longer encouraged its subsidiary to sign contracts containing arbitration clauses.

Similar practices also exist in China. In the case concerning a sales contract dispute between Shanghai A Bus Public Transport Co., Ltd. (appellant) and China B Chemical Co., Ltd. Shanghai Petroleum Branch (appellee) heard by the Shanghai No. 2 Intermediate People's Court, the court held that although the Purchase and Sales Agreement involved in this case was signed by the appellee and Group D, the agreement was a framework agreement signed by Group D on the centralized purchase of refined oil products from the appellee for its 32 subordinate public transport units including the appellant. In addition, the oil products actually purchased by the appellant from the appellee were also consistent with the agreement of the Purchase and Sale Agreement, and the dispute of this case also involved the business between the appellant and the appellee before the restructuring of the appellant. As there is no evidence of other written agreements between the parties, it is appropriate for the court of first instance to find that the dispute between the appellant and the appellee is bound by the Purchase and Sale Agreement. In the Purchase and Sale Agreement, the arbitration clause had expressly stated the arbitration of the Shanghai Arbitration Commission. Therefore, the court of first instance was correct in finding that the appellant's appeal shall be dismissed.[50]

However, not every country's court or arbitral tribunal has accepted the application of this doctrine on the expansion of the arbitration agreements. The United Kingdom has clarified that the Group of Companies Doctrine does not form part of English law while France has accepted the Group of Companies Doctrine.[51] Furthermore, in ICC Arbitration Case No. 6610, the arbitral tribunal found that there was no evidence that the parties intended to join other parties to the contract in question based on the Group of Companies Doctrine.[52]

Other circumstances, concerning the expansion of the arbitration agreement to non-signatories, include (1) whether an arbitration agreement binds the originalshareholders who bear the liquidation obligations, when the company that has entered into an arbitration agreement before it was dissolved; (2) if an arbitration clause is agreed to in a third-party interest contract, should the third party be bound by that arbitration clause;[53] (3) when the creditor exercises the right of subrogation, whether the creditor is bound by the arbitration agreement between the debtor and the secondary debtor; and (4) whether the expansion of the arbitration agreement apply in the case of agency[54], etc. Some scholars have suggested that considering the New York Convention and the pro-arbitration policy, it is appropriate to apply the loose standard in determining whether a third party is agreed to be bound by an arbitration agreement.[55]

4. Consolidated Arbitration

4.1 China's Arbitration Law is Silent on the Issue of Consolidated Arbitration

Consolidated arbitration refers to the consolidation of a number of arbitration proceedings that have already been commenced and are managed by an arbitration institution into one single arbitration. Consolidated arbitration aims at improving the efficiency of dispute resolution and meets the demands of the increasingly complex commercial transaction. The HKIAC, the ICC International Court of Arbitration, the CIETAC, and the BAC all provide for the consolidated arbitration it their own arbitration rules. Some commentators argue that, in theory, the consolidated arbitration system damages the principle of party autonomy and the confidentiality of arbitration. Nevertheless, in areas such as construction, ship leasing, and international trade where chain transactions and side-by-side transactions are extremely common, consolidated arbitration is an excellent mechanism for resolving disputes efficiently, reducing costs, ensuring the consistency of the award and clarifying the facts. A number of jurisdictions have provided for the consolidated arbitration by legislation.[56] Generally, the applicable law of arbitration agreements (normally being the law of the seat of arbitration) shall apply to govern issues like the consolidated arbitration.[57]

The Arbitration Ordinance of Hong Kong provides for different approach towards domestic and international arbitration. For international arbitration, based on the UNCITRAL Model Law on International Commercial Arbitration, the consolidated arbitration is not allowed. For domestic arbitration, compulsory consolidation is permitted under certain conditions, including, these arbitration proceedings are based on the same law or fact, or these arbitration proceedings arise from the same transaction or a series of transaction, or a consolidation order is required for other reasons. In the event that the parties cannot agree on the choice of arbitrators for the consolidation proceedings, the court shall have the power to appoint a chief executive officer to arbitrate the consolidation proceedings. Now, the HKIAC is trying to reconcile the differences between domestic and international arbitration by allowing consolidated arbitration regardless of whether it is domestic or international.[58]

Japan's arbitration legislation does not provide clear provisions for the settlement of multi-party disputes. However, Article 41 of the Commercial Arbitration Rules of the Japan Commercial Arbitration Association provides for the Consolidated Arbitration, that is, if the association or the arbitral tribunal determines that it is necessary to consolidate the arbitration claims that are closely related to each other, after obtaining the written approval of all the parties, the arbitral tribunal may combine several cases into one single arbitration. If these arbitration proceedings are commenced under the same arbitration agreement, the consent of the parties is not required.[59]

Netherlands is one of the few countries in the world that explicitly provides for the settlement of multi-party disputes by means of consolidated arbitration. Article 1046 of the Netherlands Code of Civil Procedure provides that "If the object of the arbitral proceedings of one arbitral tribunal commenced in the Netherlands is connected with the object of the arbitral proceedings of another arbitral tribunal commenced in the Netherlands, any party may request the president of the Amsterdam District Court to order the consolidated proceedings". Netherlands Arbitration Law therefore provides for the possibility of a particular court to consolidated arbitration proceedings by way of judicial power, without much regard to the voluntary principle of arbitration.[60]

4.2 Consolidated Arbitration under the Arbitration Rules

China's Arbitration Law and its judicial interpretation remain silent on consolidated arbitration. Compared with the Arbitration Law, the arbitration rules are more flexible. In order to meet the need of multi-party dispute resolution, the arbitration institutions have provided for the consolidated arbitration in their respective arbitration rules. Referring to the arbitration rules of renowned international and domestic arbitration institutions (such as article 10 of the ICC Arbitration Rules, Article 28.1 of the HKIAC Arbitration Rules, Article 8.1 of the SIAC Arbitration Rules, Article 19 of the CIETAC Arbitration Rules, and Article 30 of the BAC Arbitration Rules), an application for the consolidation of multiple arbitration proceedings is usually subject to one of the following conditions: all the parties agree to the consolidation; or all the requests for relief are made based on the same arbitration agreement; or the requests for relief are made based on more than one arbitration agreements, but they originates from the same transaction or the same series of transactions, and the arbitration agreements involved are compatible.[61]

Multi-contract arbitration means the claimant raises requests for relief together in one arbitration case for disputes under multiple contracts, and if the case is registered before the arbitration institution, there would only be one case number. Multi-contract arbitration differs from the consolidated arbitration, where there are more than two cases (in practice, there are two case numbers). A parallel relationship exists between the three conditions of multi-contract arbitration under Article 14 of the CIETAC Arbitration Rules,[62] namely, the three conditions must be met simultaneously.[63] On this point, consolidated arbitration has a wider scope of application; if the parties fail to meet the requirements of multi-contract arbitration when filing a case, they can still apply for consolidated arbitration afterwards.

One way of commencing the consolidated arbitration is with the agreement of all parties. Only SCIA takes this approach among the famous arbitration institutions at home and abroad, and Article 18 of its arbitration rules provides that only with the written consent of the parties may the SCIA decide to consolidate the arbitration. According to some legal practitioners, the rule has maintained party autonomy to the greatest extent possible, but has also sacrificed the time benefit and the monetary costs of the intermediate party in the chain dispute, and does not comply with the principle of arbitration efficiency. Furthermore, even the parties fail to reach an agreement on the consolidation, the consolidated arbitration could also be triggered upon at least one party's application or can be initiated by the arbitral tribunal (arbitral institution) without any application from the parties. Vast majority of the arbitration institutions adopt the former approach, and the LCIA adopts the latter one.[64]

The decision as to whether to proceed with consolidation is usually made by the arbitration institution, but some arbitration rules provide that the arbitral tribunal is entitled to decide such matter (see Article 8.7 of the SIAC Arbitration Rules). In addition to the above conditions, the arbitral institution, when deciding whether to permit the consolidated arbitration, may also consider the constitution of arbitral tribunal, the procedural process, and whether the consolidation would be conducive to efficient dispute resolution, etc.[65]

4.3 The Arbitration Proceeding After Consolidation

Consolidating several arbitration cases would raise the question of how the arbitration process would proceed. The arbitration rules of several arbitration institutions provide that: first, the arbitrations shall be consolidated into the arbitration that was first commenced, unless otherwise agreed by the parties or in other exceptional circumstances (e.g., Article 8.5 of the SIAC Arbitration Rules, Article 28.6 of the HKIAC Arbitration Rules, Article 19.3 of the CIETAC Arbitration Rules). Second, the arbitral institution has the right to revoke the previously selected arbitrator (e.g., Article 15.3 of SCC Arbitration Rules, Articles 8.6 and 8.10 of SIAC Arbitration Rules, Article 28.6 of HKIAC Arbitration Rules). Third, the consolidation of the arbitration shall not affect any act, order or award of the arbitral institution and the arbitral tribunal that existed prior to the consolidation (e.g., Article 8.11 of the SIAC Arbitration Rules and Article 28.7 of the HKIAC Arbitration Rules).[66]

According to CIETAC arbitration practice, after the consolidation, the division of the claimant and the respondent is usually determined by the parties through consultation. If the consultation fails, CIETAC will determine the division after consulting the parties and the arbitral tribunal. 

Additionally, in consolidated arbitration proceedings, confidentiality should be ensured. Under English law, the parties' arbitration agreement creates an implied obligation of confidentiality, while the third party participating in the arbitration procedure has no explicit obligation to do so.[67] For commercial disputes, in the process of consolidated arbitration, some trade secrets, data, and other confidential information may be disclosed. There is, however, certain sensitive information that some parties are unwilling to share with others who are not parties to the same arbitration agreement in the same arbitration.[68]

5. Anti-suit Injunction

5.1 Background

There is no official definition of the term anti-suit injunction. The anti-suit injunction is defined in the Black's Law Dictionary as an injunction prohibiting litigants from bringing similar actions before other bodies over the same subject matter.[69] According to other scholars, the anti-suit injunction prohibits a party from initiating or continuing proceedings in other courts,[70] and its main purpose is to prevent parallel proceedings in different courts, to prevent another court from executing a judgment or ruling, and to avoid re-litigating an issue already decided.[71] Some scholars also commented that the anti-suit injunction is an order issued by a domestic court to prohibit a party from initiating or continuing a lawsuit in a court of another country in the case of a conflict of jurisdiction,[72] or that the anti-suit injunction is issued before a judgment has been made, but after the case has been accepted by a court or arbitral tribunal, as an order that requires a party not to bring an action or arbitration before another court or tribunal.[73] Thus, the anti-suit injunction may be considered to be an order made by a court at the request of one party to prohibit the other party from initiating or continuing an action or arbitration outside a particular court or arbitral tribunal.

Regarding the origin of anti-suit injunction, as early as the 15th century, the writ of prohibition was issued by the common law courts in England to restrain the ecclesiastical courts from expanding their jurisdiction. Later, to regulate malicious prosecution, the Court of Chancery in England used such injunctions to prevent litigants from suing in common law courts. Over time, the anti-suit injunction, which was used to coordinate the jurisdiction of British domestic courts, has been extended to the international field to coordinate the conflict of jurisdiction between British courts and foreign courts. With the global expansion of the common law tradition, the anti-suit injunction is now widely used in international civil litigation in common law countries or regions.[74]

5.2 Anti-Suit Injunctions in International Commercial Arbitration

Generally speaking, the anti-suit injunction issued by the extraterritorial court involves two kinds of conflicts of jurisdiction. One is the conflict of jurisdiction between the courts of the two countries; the other is the conflict of jurisdiction between the court and the arbitral tribunal. As to the conflict of jurisdiction between the courts in two countries, the anti-suit injunction is for the court to maintain its own jurisdiction. The international civil litigation differs from the international commercial arbitration on the aspects of party autonomy, the nature of the dispute settlement body, the source of jurisdiction, the judgment system, etc.. Therefore, they also differ in the application of the anti-suit injunction. The anti-suit injunction in international commercial arbitration mainly aims at coordinating the conflict of jurisdiction between the arbitral tribunal and the court. The anti-suit injunction in international commercial arbitration is usually designed to ensure compliance with the arbitration agreement and to prevent the parties to the arbitration agreement from bringing an action before the court, thus essentially safeguarding the jurisdiction of the arbitration, and the anti-suit injunction often reflects the "pro-arbitration" policy. Disputes in question often do not involve the public interest. There are two kinds of anti-suit injunctions in international commercial arbitration. One is the injunction in favor of arbitration to prevent the litigation process, and the other is the injunction in favor of litigation to prevent the arbitration process. The former is more common. Regardless of whether it is an injunction prohibiting litigation or an arbitration injunction, it embodies the arbitration's exclusion of litigation.[75]

First, the anti-suit injunction prohibiting litigation means that the parties have signed an arbitration agreement; after the dispute has occurred, one party violates the arbitration agreement and submits the dispute to the court for litigation settlement. The other party, based on the arbitration agreement, applies to the relevant court for an injunction preventing the party from proceeding the litigation.[76]

Secondly, the anti-suit injunction prohibiting arbitration means that upon the application by a party to the arbitration agreement or a third party to the arbitration agreement, court renders an order to prevent a party, an arbitrator, or an arbitral tribunal from initiating or continuing arbitration. The following are specific situations: (1) one party brings a lawsuit and the defendant in the lawsuit initiates an arbitration; (2) one party files an arbitration and the other party files another arbitration; (3) one party initiates a lawsuit and then initiates an arbitration against the same defendant; (4) one party initiates an arbitration and then initiates another arbitration against the same respondent; (5) the litigation and the arbitration proceedings are related, so it is more reasonable to consolidate them; (6) where a court has rendered a judgment in the case or an arbitral tribunal has rendered an award in the case, the winning party may request the court to issue an injunction prohibiting the losing party from initiating arbitration in a foreign country over the same dispute; (7) where the court has recognized and enforced the judgment or arbitral award rendered by a foreign court or arbitral tribunal, the wining party may request the court of the place of enforcement to issue an injunction prohibiting the losing party from initiating arbitration in respect of matters have already been recognized and enforced.[77]

Common law courts like those in England have greater discretion in issuing anti-suit injunctions and are also bound by the Brussels Regulations, i.e., England courts are not allowed to issue the anti-suit injunction against a court action conducted in a member state of the European Union. American courts, taking into account international comity, public policy, and other factors of equity, would usually issue the anti-suit injunctions to force parties to participate in arbitration.

5.3 Chinese Legal Provisions on Anti-Suit Injunctions

As the representatives of the civil law system, Germany and France do not have the anti-suit injunction system, and are strongly opposed to the injunction. Although there is no anti-suit injunction in Germany and France, when the German and French courts actually face the question of parallel proceedings, they can find a way to solve the parallel litigation with a similar effect of injunction in the existing legal system, such as finding breach of contract or tort, using traditional substantive legal relief (stopping infringement or actual performance), issuing injunctions, and enforcing fines.[78]

In China, there is no relevant legislation on anti-suit injunction. However, in judicial practice, regarding the effectiveness of the anti-suit injunction issued by the English court in the M/V"NORD LUNA" case, the SPC, in its reply No. (2010) Min Si Ta Zi No. 67, held that company B did not provide any factual or legal basis for the English arbitral tribunal to determine whether the parties had an arbitration agreement based on the anti-suit injunction of the High Court of London. Even though the SPC did not directly address the effect of English court's anti-suit injunction, it basically and substantively negated it.[79]

Whether to introduce the anti-suit injunction system in China has been controversial. The opponents think that the anti-suit injunction is not consistent with the comity principle in China, and in judicial practice, the anti-suit injunction will not be recognized by the courts of other countries in most cases and cannot play its due role. Supporters believe that anti-suit injunction plays a positive role in resolving jurisdictional conflicts, and with limited use of injunctions, China can fight excessive jurisdiction of other countries and judicial acts that erode China's jurisdiction.

Some scholars suggest that establishing the principles, conditions, and procedures of issuing an anti-suit injunction in the form of legislation or judicial interpretation, so as to establish an anti-suit injunction system and provide Chinese courts and citizens with the legal basis for applying the anti-suit injunction. On this point, anti-suit injunctions may be limitedly utilized in severe cases to prevent a party from initiating or advancing a foreign lawsuit in order to avoid excessive jurisdiction and encroachment upon the jurisdiction of the mainland, such as malicious litigation conducted in a foreign country in violation of exclusive choice of court agreements or arbitration agreements.[80] According to some scholars, the arbitral tribunal's jurisdiction is not mandatory and requires the court's assistance to exercise; when the parties have an arbitration agreement and the other party sues in a foreign court, the domestic court shall issue an anti-suit injunction in support of the arbitration.[81] Furthermore, the anti-suit injunction in international commercial arbitration also involves the determination of the validity of an arbitration agreement, respecting the power of the law of the place of arbitration to determine the validity of an arbitration agreement, the judicial supervision of the court of the place of arbitration, and the priority of the arbitral tribunal to determine the validity of an arbitration agreement.[82]

[1]  Franco Ferrari, Matthieu de Boisseson, Inka Hanefeld, Mark Kantor, Ryan Reetz & Laurence Shore, Panel 3: Multi-Party Arbitration Issues in International Project Finance Arbitration, 9 N.Y.U. J.L. & Bus. 759 (2013). Y: Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration 177-85, 2d ed., 2005. B. Hanotiau, Complex Arbitrations 443-457 (2005). J. Lew, L. Mistelis & S. Krill, Comparative International Commercial Arbitration 16-11 er seg. (2003). Platte, When Should An Arbitrator Join Cases? 18 Arb. Int'l 67, 74-77 (2002). Schwartz, Multiparty Arbitration and the ICC: In the Wake of Dutco, 10(3) J. Int'1 Arb. 5 (1903). Gavel, Multiparty Arbitration and Multiple Arbitrations, 7(2) ICC Ct. Bull. 45, 47-48 (1996).

[2] Lin Yifei, Multi-party Arbitration (2014), https://mp.weixin.qq.com/s/qdm6lfe7z9a1swMSXUsG_Q。

[3] Herrlin, Issues to be Discussed, in ICC, Multiparty Arbitration 131, 133-35 (1991); de Boisséson, Constituting An Arbitral Tribunal, in ICC, Multiparty Arbitration 147, 150 (1991).

[4] Liao Ming, Designating Arbitrators in the Multiparty Arbitration, Beijing Arbitration Quarterly, 2020(03).

[5] Nana Adjoa Hackman, The Problem of Arbitration and Multi-party/multi-contract Disputes: Is Court-ordered Consolidation an Adequate Response? https://www.international-arbitration-attorney.com/wp-content/uploads/arbitrationlawcepmlp_car13_5_612306438.pdf。

[6] Delvolve, Multipartyism: The Dutco Decision of the French Court of Cassation, 9 Arb. Int’l 197(1993). S. Bond, The Experience of the ICC International Court of Arbitration, Multi·party Arbitration, ICC Publishing (1991). Maria Theresa Trofaier, Multi-Party Arbitration: The Organisation of Multi-Party Proceedings - The Problems Faced by Parties and Arbitrators, 2009 Annals FAC. L. BELGRADE INT'l ED. 64 (2009).

[7] Gary Born, International Commercial Arbitration 2100 (Kluwer Law International 2009). 

[8] Y. Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration 183-184 (2d ed. 2005); Whitesell & Silva-Romero, Multiparty and Multicontract Arbitration: Recent ICC Experience, in ICC Complex Arbitrations 7, 12 (ICC Ct. Bull. Spec. Supp. 2003).

[9] Whitesell & Silva-Romero, Multiparty and Multicontract Arbitration: Recent ICC Experience, in ICC Complex Arbitrations 7, 12-13 (ICC Ct. Bull. Spec. Supp. 2003).

[10] Liao Ming, Designating Arbitrators in the Multiparty Arbitration, Beijing Arbitration Quarterly, 2020(03).

[11] Article 8 of the LCIA Arbitration Rules stipulated that “Article 8 Three or More Parties. 8.1 Where the Arbitration Agreement entitles each party howsoever to nominate an arbitrator, the parties to the dispute number more than two and such parties have not all agreed in writing that the disputant parties represent collectively two separate “sides” for the formation of the Arbitral Tribunal (as Claimants on one side and Respondents on the other side, each side nominating a single arbitrator), the LCIA Court shall appoint the Arbitral Tribunal without regard to any party's entitlement or nomination. 8.2 In such circumstances, the Arbitration Agreement shall be treated for all purposes as a written agreement by the parties for the nomination and appointment of the Arbitral Tribunal by the LCIA Court alone”.

[12] Liao Ming, Designating Arbitrators in the Multiparty Arbitration, Beijing Arbitration Quarterly, 2020(03).

[13] Gary Born, International Commercial Arbitration 2103 (Kluwer Law International 2009).

[14] Article 8 of the HKIAC Administered Arbitration Rules stipulated that “8.2 Where there are more than two parties to the arbitration and the dispute is to be referred to three arbitrators, the arbitral tribunal shall be constituted as follows, unless the parties have agreed otherwise:(a) the Claimant or group of Claimants shall designate an arbitrator and the Respondent or group of Respondents shall designate an arbitrator in accordance with the procedure in Article 8.1(a), (b) or (c), as applicable;(b) if the parties have designated arbitrators in accordance with Article 8.2(a), the procedure in Article 8.1(d) shall apply to the designation of the presiding arbitrator;(c) in the event of any failure to designate arbitrators under Article 8.2(a) or if the parties do not all agree that they represent two separate sides (as Claimant and Respondent respectively) for the purposes of designating arbitrators, HKIAC may appoint all members of the arbitral tribunal with or without regard to any party’s designation.”

[15] Liao Ming, Designating Arbitrators in the Multiparty Arbitration, Beijing Arbitration Quarterly, 2020(03).

[16] Liao Ming, Designating Arbitrators in the Multiparty Arbitration, Beijing Arbitration Quarterly, 2020(03).

[17] In this case, the SPC held that,Article 4.3 of the 2012 CIETAC Arbitration Rules has stipulated that, where the parties agree to refer their dispute to CIETAC for arbitration but have agreed on an amendment of these Rules or have agreed on the application of other arbitration rules, the parties’ agreement shall prevail unless such agreement is inoperative or in conflict with a mandatory provision of the law applicable to the arbitral proceedings. Additionally, theSPC is of the view that clauses of contracts should be interpreted in a way that gives themas much effect as possible, instead of making them meaningless or redundant. Therefore, in the context where the arbitration clause explicitly allows each party to nominate an arbitrator, the application of Article 27 (3) of the 2012 CIETAC Arbitration Rules will deprive one party of its right to nominate, which is inconsistent with the arbitration clause. According to this case, the arbitration institution should respect the parties' agreement on how an arbitrator should be chosen, otherwise the arbitral award may be revoked or cannot be recognized and enforced. Sun Binbin and Wen Han, Practical Issues and Strategies for Multi-party Arbitration (2022), https://mp.weixin.qq.com/s/BErAPtmTvsfGMgZxHgmiXQ.

[18] Liao Ming, Designating Arbitrators in the Multiparty Arbitration, Beijing Arbitration Quarterly, 2020(03).

[19] J. G. Frick, Arbitration and Complex International Contracts, Kluwer (2001).

[20] Lin Yifei, Multi-party Arbitration (2014), https://mp.weixin.qq.com/s/qdm6lfe7z9a1swMSXUsG_Q. Lew, J., et al, Comparative International Commercial Arbitration, p. 388, Kluwer Law International, 2003.

[21] Redfern, A., Hunter, M., Law and Practice of International Commercial Arbitration, p. 317, Sweet & Maxwell 4th Ed.

[22] Lin Yifei, Multi-party Arbitration (2014), https://mp.weixin.qq.com/s/qdm6lfe7z9a1swMSXUsG_Q.

[23] B. Hanotiau, Non-signatories in International Arbitration: Lessons from Thirty Years of Case Law, 13 ICCA Congress Series (2007).

[24] Kavya Bhardwaj, Multi Party Disputes: The Joinder of Third Parties to International Arbitration Agreements, 2 IND. ARB. L. REV. 1 (2020). Ma Victoria Sanchez Pos, Joinder and Intervention of Additional Parties in International Commercial Arbitration, 12 Cuadernos DERECHO Transnacional 365 (2020).

[25] Li Xiaoling, On Multiparty Arbitration Procedure, Legal Forum, 2004(04).

[26] Lew, J., et al, Comparative International Commercial Arbitration, Kluwer Law International, 2003. Manuel Gómez Carrión, Joinder of third parties: new institutional developments, 31 Arbitration International 479-505 (2015).

[27] Li Xiaoling, On Multiparty Arbitration Procedure, Legal Forum, 2004(04). Maria Theresa Trofaier, Multi-Party Arbitration: The Organisation of Multi-Party Proceedings - The Problems Faced by Parties and Arbitrators, 2009 Annals FAC. L. BELGRADE INT'l ED. 64 (2009). Ma Victoria Sanchez Pos, Joinder and Intervention of Additional Parties in International Commercial Arbitration, 12 Cuadernos DERECHO Transnacional 365 (2020).

[28] Gerasimtchuk, E., Multi-party Arbitration, www.uni.kiel.de/eastlaw/ws0102/semarbeiten. Nana Adjoa Hackman, The Problem of Arbitration and Multi-party/multi-contract Disputes: Is Court-ordered Consolidation an Adequate Response? https://www.international-arbitration-attorney.com/wp-content/uploads/arbitrationlawcepmlp_car13_5_

612306438. pdf.

[29] Zhang Lixia and Xu Ruying, Top Ten Issues Concerned by Lawyers in the Amendment of the Arbitration Law Series II—The Study on Perfecting Relevant System in Arbitration Proceedings (2021), https://mp.weixin.qq.com/s/xoDx8N8eo1O0YWYfzcUnqg。

[30] Guangzhou Arbitration Commission, Analysis of the Key Points of a Third Party Joining the Arbitration Proceedings, 2018, https://mp.weixin.qq.com/s/AkO9Vc5T8W2Nob5Wyr2hVQ.

[31] For example, in the case No. (2017) Lu 08 Min Te No. 124, the Shandong Jining Intermediate People's Court held that after Shengji Company knew that Tianhe Company had filed an arbitration request against it, it submitted a statement of circumstances to the arbitral tribunal, clarifying that there is no arbitration agreement between it,  Xinhuayou Company and Tianhe Company, and it does not agree to participate in the arbitration. Shengji's participation in the arbitration is only for the purpose of ascertaining the facts of the case. It is unpredictable that Shengji will participate in the arbitration and may assume responsibility. Therefore, its participation in the arbitration of this case is not an expression of its true intentions. Jining Arbitration Commission issued the "Invitation to Arbitration" to Shengji Company, inviting it to participate in the arbitration, which is not a statutory way stipulated by the Arbitration Law or the Arbitration Rules. According to Article 4 of the Arbitration Law, in the absence of a written arbitration agreement between the parties, the arbitration institution shall not accept the arbitration application of the parties. In addition, after Tianhe Company added its requests for relief, the arbitral tribunal did not give Shengji the defense period specified in the arbitration rules, which violated legal procedures and may affect the fair adjudication of the case, and thus the arbitral award should be set aside.

In the case No. (2017) Chuan Zhi Fu No. 144, the Sichuan Higher People's Court held that, the arbitration agreement is a common expression of the parties' willingness to submit the disputes that may arise or that have arisen to arbitration to resolve the disputes. Therefore, the arbitration agreement has the nature of contract. The arbitration agreement shall not bind the third party due to the nature of contract. The third party who has not reached a legal form of agreement with the parties involved in the arbitration agreement has no right to positively or passively participate in the arbitration proceeding. Only upon the request, the third party has no right to obtain arbitration rights. At present, China's legislation and judicial practice have not recognized the third-party system in arbitration. If an agreement cannot be reached among the parties, a third party who has a conflict of interest with the arbitration parties cannot participate in the arbitration proceeding to resolve the dispute. If third parties believe that their legitimate rights and interests have been violated, they can seek remedy through other legal methods. The power of the arbitration institution and the scope of the arbitration are authorized by the parties, so the arbitration institution cannot require a third party to participate in the arbitration or hold them liable during the arbitration proceeding.

[32] Zhang Lixia and Xu Ruying, Top Ten Issues Concerned by Lawyers in the Amendment of the Arbitration Law Series II—The Study on Perfecting Relevant System in Arbitration Proceedings (2021), https://mp.weixin.qq.com/s/xoDx8N8eo1O0YWYfzcUnqg.

[33] Zhang Lixia and Xu Ruying, Top Ten Issues Concerned by Lawyers in the Amendment of the Arbitration Law Series II—The Study on Perfecting Relevant System in Arbitration Proceedings (2021), https://mp.weixin.qq.com/s/xoDx8N8eo1O0YWYfzcUnqg.

[34] Fu Panfeng, On the Institutional Construction of Multi-party Arbitration and Its Practical Difficulties, Beijing Arbitration Quarterly, Vol.87.

[35] Pierre Mayer, Extension of The Arbitration Clause to No-signatories under French Law, 180 Oxford University Press (2008). B Hanotiau, Problems Raised by Complex Arbitrations Involving Multiple Contracts-Parties- Issues - An Analysis, 18 Journal Of International Arbitration, 253, 256 (2001).

[36] Dallah Real Estate & Tourism Holding Co. v. Ministry of Religious Affairs, Gov’t of Pakistan, UK SC 46(2010).

[37] Hanotiau, Problems Raised by Complex Arbitrations Involving Multiple Contracts-Parties-Issues-An Analysis, 18 Journal Of International Arbitration, 253, 256 (2001). Whitesell & Silva-Romero, Multiparty and Multicontract Arbitration: Recent ICC Experience, in ICC, Complex Arbitrations, ICC Ct. Bull. Spec. Supp. (2003).

[38] Zhao Jian, Long Arm Arbitration Agreement: On the Effect of the Arbitration Agreement upon the Non-signatories, Arbitration and Law, 2000(01).

[39] B. Hanotiau, Complex Arbitrations- Multiparty, Multicontract. Multi-issue and Class Actions, Kluwer (2005). B. Hanotiau, Problems Raised by Complex Arbitrations Involving Multiple Contracts - Parties- Issues: An Analysis, 3 Journal of lnternational Arbitration, 251-360(2001). W. W. Park, Non-Signatories and International Contracts- An Arbitrator’s Dilemma in Multiple Party Actions in International Arbitration (Oxford University Press 2009). W. W. Park, Non-Signatories and International Arbitration, L. W. Newman, R. D. Hill (eds.), The Leading Arbitrators Guide to International Arbitration, 2008. B. Hanotiau, Non-Signatories in International Arbitration: Lessons from Thirty Years of Case Law, 13 ICCA Congress Series (2007). Anne Marie Whitesell, Non-signatories in ICC Arbitration, Kluwer Law International (2006). 

[40] Bell Rey Ca. Inc. v. Chamrite (Pty.) Ltd. and Lubritene (Pty.), 181 F.3d 435 (3d Cir. 1999). James M. Hosking, Non-Signatories and International Arbitration in the United States: the Quest for Consent, 20.3 Arbitration International 289-303 (2004).

[41] Zhu Huafang, Guo Youning, Guo Meng, etc., 2020 Observation Report of Arbitration Judicial Review Practice- Theme 1: Observation on the Practice of Confirming the Arbitration Agreements’ Effect, https://mp.weixin.qq.com/s/qG4QouxRLMhGvjrLjpfQdQ.

[42] Zhu Huafang, Guo Youning, Guo Meng, etc., 2020 Observation Report of Arbitration Judicial Review Practice- Theme 1: Observation on the Practice of Confirming the Arbitration Agreements’ Effect, https://mp.weixin.qq.com/s/qG4QouxRLMhGvjrLjpfQdQ.

[43] Zhu Huafang, Guo Youning, Guo Meng, etc., 2020 Observation Report of Arbitration Judicial Review Practice- Theme 1: Observation on the Practice of Confirming the Arbitration Agreements’ Effect, https://mp.weixin.qq.com/s/qG4QouxRLMhGvjrLjpfQdQ.

[44] Zhu Huafang, Guo Youning, Guo Meng, etc., 2020 Observation Report of Arbitration Judicial Review Practice- Theme 1: Observation on the Practice of Confirming the Arbitration Agreements’ Effect,  https://mp.weixin.qq.com/s/qG4QouxRLMhGvjrLjpfQdQ.

[45] Sun Binbin and Wen Han, Practical Issues and Countermeasures in Multi-Party Arbitration, 2022, https://mp.weixin.qq.com/s/BErAPtmTvsfGMgZxHgmiXQ.

[46] Xiong Pan, Several Legal Issues Concerning Shareholder Derivative Suit, 2021, https://mp.weixin.qq.com/s/gCL4cQgzV_QfiaJcaK7-xA.

[47] Dow Chemical v. Isover Saint Gobain, Interim Award of 23 September 1982 in ICC Case No. 4131, Yearbook IX (1984).

[48] Olivier Caprasse, Les Sociétés et l’Arbitrage, Bruylant & LGDJ, Brussels and Paris, 2002. Daniel Cohen, Arbitrage et Société, LGDJ, Paris, 1993. James M. Hosking, Non-Signatories and International Arbitration in the United States: the Quest for Consent, 20.3 Arbitration International 289-303 (2004).

[49] Chen Luming and Zhao Manshu, Are Unsigned Affiliates Subject to Arbitration Agreements? ——Relevant Practice Observations of International Arbitration, 2019, http://www.junhe.com/legal-updates/897 .

[50] The case is contained in Lin Yifei, Latest Commercial Arbitration and Judicial Practice Special Cases, Volume 12, Beijing, University of International Business and Economics Press (2013).

[51] Sébastien Besson, Piercing the Corporate veil: back on the right track, Dossier of the ICC Institute of World Business Law: Multiparty Arbitration, 147(2010).

[52] Case No. 6610 of 1991, 19 Y. B. Comm. Arb. (ICC Int’l Ct. Arb.).

[53] Case No. 9726 of 2004, 29 Y.B. Comm. Arh. (lCC lnt'l Ct. Arb.). Nauru Phosphate Royalties, Inc. v. Drago Daic Interests, Inc., 138 F.3d 160, 166 (5th Cir. 1998). Newby v. Enron Corp., 391 F. Supp. 2d 541, 561 (S.D. Tex. 2005). Bevere v. Oppenheimer & Co., 862 F.Supp. 1243 (1994). James M. Hosking, Non-Signatories and International Arbitration in the United States: the Quest for Consent, 20.3 Arbitration International 289-303 (2004).

[54] Case No. 3879 of 1986, 9 Y.B.Comm. Arb. 148 (lCC lnt'l Ct. Arb.). Lerner v. Amalgamated Clothing & Textile Workers Union, 938 F.2d 2 (2d Cir. 1991). James M. Hosking, Non-Signatories and International Arbitration in the United States: the Quest for Consent, 20.3 Arbitration International 289-303 (2004).

[55] Gary Born, International Commercial Arbitration 2818 (2 ed, Kluwer Law International 2014).

[56] Huanzhong Arbitration Team, “How to Distinguish between‘Consolidated Arbitration’ and‘Multi-contract Arbitration’?”2017,https://mp.weixin.qq.com/s/AOS1Wx6JJateD_1Kaor9eQ. Redfern, A., Hunter, M., Law and Practice of International Commercial Arbitration, p. 202, Sweet & Maxwell 4th Ed. Hoellering, M., Consolidated Arbitration: will it result in increased efficiency or an affront to party autonomy? Dispute Resolution Journal 41-49 (1997). Reisman et al, International Commercial Arbitration. Cases, Materials and Notes on the Resolution of International Business Disputes (University Casebook Series, Foundation Press).

[57] Gary Born, International Commercial Arbitration 2076 (Kluwer Law International 2009). Chiu, Consolidation of Arbitral Proceedings and International Commercial Arbitration, 7(2) J. Int'l Arb. 53, 72-73 (1990); van den Berg, Consolidated Arbitrations and the 1958 New York Arbitration Convention, 2 Arb. Int'1 367 (1986).

[58] Zhang Qingchuan,On Consolidated Arbitration, 2021, https://mp.weixin.qq.com/s/vRmOiAHg73rhOkTgSFRWsw.

[59] Zhang Qingchuan,On Consolidated Arbitration, 2021, https://mp.weixin.qq.com/s/vRmOiAHg73rhOkTgSFRWsw.

[60] Zhang Qingchuan,On Consolidated Arbitration, 2021, https://mp.weixin.qq.com/s/vRmOiAHg73rhOkTgSFRWsw. Nana Adjoa Hackman, The Problem of Arbitration and Multi-party/multi-contract Disputes: Is Court-ordered Consolidation an Adequate Response? https://www.international-arbitration-attorney.com/wp-content/uploads/arbitrationlawcepmlp_car13_5_612306438.pdf.

[61] Han Kun Law Firm. “Notes on International Commercial Arbitration Practice (Han Kun 2017-2018 Edition) Series (5): Multi-contract Arbitration, Consolidated Arbitration”, 2018, https://mp.weixin.qq.com/s/zPRfqHnGvCVaaHB6hyzRoA. E. Gaillard, J. Savage (eds.), Fouchard, Gaillard Goldman on International Commercial Arbitration, p.518-524, Kluwer Law International, 1999

[62] Article 14 of the CIETA Rules stipulates: “The claimant may apply for arbitration jointly in the same arbitration case in respect of disputes under multiple contracts, provided that the following conditions are met: 1. Multiple contracts are subject to a principal-subordinate relationship; or multiple contracts involve the same parties and have the same legal relationship; 2. The dispute arises from the same transaction or series of transactions; 3. The arbitration agreement in multiple contracts is the same or compatible”.

[63] Huanzhong Arbitration Team, “How to Distinguish between‘Consolidated Arbitration’ and‘Multi-contract Arbitration’?”2017,https://mp.weixin.qq.com/s/AOS1Wx6JJateD_1Kaor9eQ

[64] Zhao Chenke,“Differences in Rules and Possible Optimization of Consolidated Arbitration: A Textual Interpretation Based on 13 Arbitration Rules”, China International Arbitration Review(Vol. 3).

[65] Han Kun Law Firm,“Notes on International Commercial Arbitration Practice (Han Kun 2017-2018 Edition) Series (5): Multi-contract Arbitration, Consolidated Arbitration”, 2018, https://mp.weixin.qq.com/s/zPRfqHnGvCVaaHB6hyzRoA.

[66] Han Kun Law Firm. “Notes on International Commercial Arbitration Practice (Han Kun 2017-2018 Edition) Series (5): Multi-contract Arbitration, Consolidated Arbitration”, 2018, https://mp.weixin.qq.com/s/zPRfqHnGvCVaaHB6hyzRoA.

[67] Kavya Bhardwaj, Multi Party Disputes: The Joinder of Third Parties to International Arbitration Agreements, 2 IND. ARB. L. REV. 1 (2020).

[68] Nana Adjoa Hackman, The Problem of Arbitration and Multi-party/multi-contract Disputes: Is Court-ordered Consolidation an Adequate Response? https://www.international-arbitration-attorney.com/wp-content/uploads/arbitrationlawcepmlp_car13_5_612306438.pdf.

[69] Bryan Garner, Black’s Law Dictionary, West Publishing Co. 2004, the Ninth Edition.

[70] Trevor C. Hartley, Comity and the Use of Antisuit Injunctions in International Litigation, 35 American Journal of Comparative Law 487 (1987). John Ray Philipps III, A Proposed Solution to the Puzzle of Antisuit Injunctions, 69 University of Chicago Law Revue 2009 (2002).

[71] Marco Stacher, You Don't Want to Go There - Antisuit Injunctions in International Commercial Arbitration, 23.4 ASA BULLETIN 641(2005).

[72] Zhang Liying,“The Game Between Principle of Court Fist Accepting Case and Anti-suit Injunction”, China Maritime Law Research, No. 1,2012.

[73] Fu Panfeng, “The Anti-suit Injunction in International Commercial Arbitration: Particularities and Countermeasures”, Hebei Law, No.8, 2021.

[74]Fu Panfeng, “The Anti-suit Injunction in International Commercial Arbitration: Particularities and Countermeasures”, Hebei law, No.8, 2021.Guido Carducci, Notes on the EUCT's ruling in Gazprom: West Tankers is unaffected and anti-suit injunctions issued by arbitral tribunals are not governed by EU Regulation 44/2001, 32 Arbitration International 111-123 (2016). Marco Stacher, You Don't Want to Go There - Antisuit Injunctions in International Commercial Arbitration, 23 ASA BULLETIN 641(2005). D Jennifer L. Gorskie, US Courts and the Anti-Arbitration Injunction, 28 Arbitration International 295-323 (2012). S.R Subramanian, Anti-arbitration injunctions and their compatibility with the New York convention and the Indian law of arbitration: future directions for Indian law and policy, 34 Arbitration International 185-217 (2014). Guido Carducci, Arbitration, Anti-suit Injunctions and Lis Pendens under the European Jurisdiction Regulation and the New York Convention, 27 Arbitration International 171-197 (2011).

[75] Fu Panfeng, “The Anti-suit Injunction in International Commercial Arbitration: Particularities and Countermeasures”, Hebei Law, No.8, 2021, from Guangzhou Arbitration Commission, “An Overview of the Injunction System in International Commercial Arbitration (I)”, 2021, https://mp.weixin.qq.com/s/augah4CTlsRzvpYSN__B9g.

[76] Guangzhou Arbitration Commission, “An Overview of the Injunction System in International Commercial Arbitration (Ⅱ)”, 2021, https://mp.weixin.qq.com/s/augah4CTlsRzvpYSN__B9g. 

[77] Huang Xu, “Research on the System of Anti-arbitration Injunction in International Commercial Dispute Settlement”, Beijing Arbitration, No. 2, 2020.

[78] Ou Yongfu, “Anti-suit Injunctions in International Civil Litigation”, Peking University Press 2007, pp. 188-189. Markus Lenenbach, Antisuit Injunction in England, Germany and the United States: Their Treatment Under European Civil Procedure and the Hague Convention, pp. 272-275. From Peng Yi, “An Analysis of the Application of the Injunction System in Mainland China”, Journal of Wuhan University Science (Philosophy and Social Sciences edition), No. 5,2012.Wang Juan,“Reflections on the Introduction of the Injunction System in Our Country”, Science of Law, No. 6,2009.

[79] Peng Xianwei, “Chinese-style Anti-suit Injunction and Its Application in Foreign-related Maritime Commercial Justice”, 2020.

[80] Ou Yongfu, “On the Application of Anti-suit Injunction in Resolving the Positive Conflict of Civil and Commercial Jurisdiction between Mainland China and Hong Kong”, Time Law, No. 4, 2009.

[81] He Jingjing, “On the Anti-suit Injunction System in International Commercial Arbitration”, V2014, from Guangzhou Arbitration Commission, “An Overview of the Injunction System in International Commercial Arbitration (Ⅲ)”, 2021, https://mp.weixin.qq.com/s/augah4CTlsRzvpYSN__B9g.

[82] Fu Panfeng, “The Anti-suit Injunction in International Commercial Arbitration: Particularities and Countermeasures”, Hebei Law, No.8, 2021, from Guangzhou Arbitration Commission, “An Overview of the Injunction System in International Commercial Arbitration (Ⅱ)”, 2021, https://mp.weixin.qq.com/s/augah4CTlsRzvpYSN__B9g.

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*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.