L’« extension » de la clause compromissoire à des

Abstract

The jurisdiction ratione personae of an arbitral tribunal has preoccupied legal theory and practice since many years; the discussion focuses nowadays on the existence of implicit consent to arbitration. Arbitrators, in view of deciding on their jurisdiction over a non-signatory, may directly apply certain specific legal concepts of a national law that imply consent, but more often than not they turn to an analysis of parties' conduct pragmatically examining all the factual elements and the surrounding circumstances of a particular case. By this process, they may conclude - on application of concepts akin to a règle matérielle of French origin - that a non-signatory has actually consented to arbitration or determine - on application of the theories of piercing the corporate veil and alter ego or better, on direct application of general principles of law - that a non-signatory should be considered as a real party to the arbitration. What is important is that arbitrators arrive at the conviction that the nonsignatory must be retained as a party to the arbitration and firmly establish all relevant reasons in their award. The risk, however, of an opposite conclusion of a national court at the stage of enforcement of the award cannot be excluded. The decision of the UK Supreme Court in the Dallah case, by which enforcement of the award against Pakistan was denied because according to French law there had been no "common intention" for Pakistan to be a party to the arbitration agreement, is a frustrating example of this risk from various angles, not limited to the conflict of this decision with the decision of the Paris Court of Appeal.