Outokumpu and the Rights of "Non-Signatories"

Abstract

The fraught question of the rights and liabilities of non-signatories in arbitration continues to exercise courts and commentators. The Supreme Court, as part of its endless fascination with the arbitral process, recently made its own contribution in the Outokumpu case. Outokumpu seemed to raise a wide variety of issues---the signature requirement of the New York Convention, the rights of third parties under the Convention, the relevance of equitable estoppel, and the applicable law that governs that issue. In a dispiritingly unadventuresome opinion, a unanimous Court decided few of these---yet what the Court gives us is clearly in line with current jurisprudence and with the ALI's recent Restatement project on international commercial arbitration, This short piece was written as a contribution to a festschrift in honor of Professor George Bermann---who, in addition to his extensive body of work, has been the guiding force behind the Restatement and so instrumental in bringing it to fruition.