Joinder in international commercial arbitration

Abstract

This article examines joinder in international commercial arbitration, focusing on institutional rules’ requirements for a successful joinder application. There are two common legal themes running through varying joinder mechanisms adopted by leading arbitral institutions—the consent to joinder and the protection of the right to equal participation in the appointment process. Given this, this article consists mainly of two parts. The first part presents an overview of joinder in international arbitration and discusses the consent and the equal participation right in the context of joinder. As to consent, this article discusses how consent is obtained, when it is necessary, what legal effects it carries under different circumstances, and what analytical steps should be taken to determine whether to extend the arbitration agreement to a non-signatory. As to equal participation, after noting the legal consequences resulting from any harm to this right, the article looks into how arbitral rules prevent and address equal participation issues. The second part studies the joinder mechanisms currently adopted by seven leading arbitral institutions and the UNCITRAL Arbitration Rules. After presenting an overview of the joinder mechanism under each set of the arbitral rules, it discusses how each mechanism addresses the consent and equal participation issues.