Kahn Lucas Lancaster, Inc. Lark International Ltd. See also Czarina, L. This has been generally followed by courts. Sunward Overseas S. Bristol Myers Squibb S. Conversely, certain courts have refused to enforce arbitration agreements against parties that have not signed it. Concordia Trading B. Plexus Cotton Limited v. In the same vein, in Javor v. Francoeur , the Canadian Supreme Court of British Columbia refused to enforce an award rendered against the respondent because it had not signed the arbitration agreement.
During the arbitral proceedings, the tribunal found that the respondent was the alter-ego of the corporate party which had signed the arbitration agreement and consequently ordered the respondent to participate in the arbitral proceedings.
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Javor v. By contrast, a number of courts have enforced arbitration agreements against parties that had not signed the arbitration agreement. For instance, United States courts have held that non-signatories can be bound by an arbitration agreement to the extent that the arbitration agreement is not null and void under the Convention and that a contract law theory—such as agency, estoppel, or principles relating to alter-egos and third party beneficiaries—applies to the case at hand.
Formostar, LLC, et al. Henry Florentius, et al. Celebration Cruise Operator Inc. See also for a case where none of the contract law theories were found applicable: Bel-Ray Co. United States v.
Chemrite Pty Ltd. As noted by a German court, the essential factor in the exchange of documents requirement under the New York Convention is mutuality; that is, reciprocal transmission of documents. Moscow Dynamo v. In the context of an investment arbitration dispute, the United States Court of Appeals for the Second Circuit has confirmed that the requirement of an exchange of documents within the meaning of article II of the Convention is fulfilled by an offer to arbitrate contained in a bilateral investment treaty and its subsequent acceptance by an investor in the Request for Arbitration.
Republic of Ecuador v. Chevron Corp. Gould Inc. For an exchange of telexes and faxes, see Compagnie de Navigation et Transports S. For an exchange by e-mails with a confirmation by fax, see Great Offshore Ltd. Sheldon Proctor v. Bockstiegel , The Swiss Federal Tribunal has confirmed that when the arbitration agreement is contained in an exchange of documents, the signature requirement does not apply.
Compagnie de Navigation et Transports S. Not Indicated v. By contrast, a limited number of decisions have refused to enforce an unsigned arbitration agreement that had been exchanged via telexes. Moinho Paulista Ltda. GreCon Dimter Inc. Normand Inc. Aksh Optifibre Ltd. Jain v. Netherlands v. The first approach, endorsed in civil law jurisdictions, consists in declining jurisdiction in the presence of an arbitration agreement. For instance, in a number of decisions, French and Swiss courts have held that, pursuant to article II of the Convention, the presence of an arbitration agreement rendered national courts incompetent and have thus referred the parties to arbitration.
Limited , Court of Appeal of Nancy, 5 December See also Fondation M v. Hi-Fert Pty Ltd. Kuikiang Maritime Carriers Inc. See also Westco Airconditioning Ltd. Both approaches are consistent with the obligation of the courts of Contracting Parties to the Convention to refer the parties to arbitration.
Courts in certain jurisdictions go as far as issuing anti-suit injunctions in favour of arbitration. In particular, the Court of Appeal of England and Wales has held that such anti-suit injunctions designed to compel parties to comply with an arbitration agreement were not in violation of the New York Convention. However, as arbitration, by definition, is premised on consent, the parties are always at liberty to waive their prior agreement to arbitrate.
If neither party alleges the existence of an arbitration agreement, the court will not ex officio refer the parties to arbitration but rather will, as a result, uphold its own jurisdiction.
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Anna Dockeray v. Yantai North Andre Juice Co. Kammgarn Spinnerei GmbH v. Casaceli v. Natuzzi S. Sichuan Changhong Electric Co.
follow url In determining whether a dispute or a particular claim falls under the obligation to refer the parties to arbitration, national courts assess the scope of the agreement to arbitrate. The court concluded that claims related to the performance of the agreement were within the scope of the arbitration agreement. Nicola v. Ideal Image Development Corporation Inc. Similarly, in determining whether or not to refer the dispute to arbitration under both the Federal Arbitration Act and the Convention, the United States Court of Appeals for the Eleventh Circuit assessed whether the dispute related to, arose from, or was connected with the employment agreements at stake.
Jane Doe v. The duty to refer the parties to arbitration does not extend to provisional and conservatory measures, except if the arbitration agreement itself refers to such measures. Most courts exercise jurisdiction to order interim or provisional relief in support of arbitration upon application by a party notwithstanding the presence of an arbitration agreement.
For example, a French court has confirmed that the presence of an arbitration agreement does not prevent one of the parties from obtaining urgent provisional measures which do not require a ruling on the merits of the dispute.
Electra Air Conditioning BV v. Two trends are discernible in the case law. As the Convention does not prohibit courts from conducting either a prima facie review of the arbitration agreement or a full review of its existence and validity, none of the two approaches can be held to breach the New York Convention.
The full review standard has been endorsed by certain jurisdictions, notably Italy and Germany. Heraeus Kulzer GmbH v. While not expressly referring to the Convention, German courts also conduct a full review of the arbitration agreement in assessing whether to refer the parties to arbitration. In so doing, courts rely on the German Code of Civil Procedure that expressly provides that prior to the constitution of the arbitral tribunal, a party may apply to a court to establish the admissibility or inadmissibility of arbitration proceedings.
Having confirmed that the arbitration agreement complied with the formal and substantive requirements of German law, the court referred the parties to arbitration. Nacimiento eds.
For an argument in favour of a prima facie standard, see R. Doak Bishop, Wade M. For instance, in France, courts apply a prima facie standard of review of the arbitration agreement. They hold that courts are precluded from performing an in-depth analysis of the arbitration agreement and must refer the parties to arbitration unless the arbitration agreement is manifestly null and void.
The new French arbitration law confirmed that even prima facie review by courts of an arbitration agreement is time-barred after the arbitral tribunal is seized see article of the French Code of civil procedure. Similarly, in India, the Supreme Court has relied on the spirit and the pro-enforcement bias of the New York Convention in order to determine the standard of review of arbitration agreements.
Shin-Etsu Chemical Co. Japan v. Astivenca Astilleros de Venezuela, C.