Consent to Arbitration: Do we Share a Common Vision?

Abstract

It is not always proper to equate the right and duty to arbitrate with the notion of consent to arbitration. Although a party's participation in arbitral proceedings will often be based on (at least presumed) consent, it is not always the case. That notwithstanding, an analysis of the approach taken in the leading civil law and common law jurisdictions indicates a broad consensus that consent may be proved by parties' conduct. In multiparty arbitrations, classical theories of contract law and company law, including consent by conduct, are sufficient to determine the scope rationae personae of the arbitration clause where proceedings involve individuals or companies that have not formally signed the arbitration agreement (sometimes wrongly termed the ‘extension’ issue). In particular, there is no need to rely on the so-called ‘group of companies doctrine’. This theory is merely a shortcut to avoid legal reasoning. Contrary to what has often been written, it also fails to represent the approach followed in the Dow Chemical case and subsequent French case law. Subject to few exceptions, the approach of the French courts has always been, and remains, based on consent. The author concludes that it is incorrect to claim that there has been a marginalization of consent. It is more accurate to refer to a modem approach to consent that is more focussed on facts and more aligned with commercial practice, economic reality and trade usages.