Due Process as a Limit to Binding Non-Signatories to Arbitration Agreements in International Commercial Arbitration: With Special Focus on Binding Non-Signatories Within Corporate Groups

Abstract

Binding non-signatories to arbitration agreements has always been a complex and difficult issue, and has been extensively discussed in past literature. However, less focus has been placed on the procedural aspect of this issue. Due process is an essential requirement of an enforceable award and the basic guarantee of procedural fairness to the parties. Binding non-signatories creates multiple due process concerns, hence, it would be beneficial to explore the issue of non-signatories under the lens of due process. This article identifies the due process issues that may arise from the binding of non-signatories. In particular, this article places special focus on due process issues that may arise from binding non-signatories within corporate groups, such as under the group of companies and veil piercing doctrines. Based on the findings in the examination of due process, this article proposes that due process can serve as a potential limit to the binding of non-signatories. The arbitrators have a duty to ensure the due process rights of the parties. In cases where there exist conflicts of due process rights, the arbitrators should balance the due process rights between the parties, thereby ensuring that the minimum requirements of due process are satisfied. By doing so, due process can serve as a limit to binding non-signatories to arbitration agreements in international commercial arbitration.

Keywords: non-signatories, arbitration agreement, due process, New York Convention, group of companies, Dow Chemical, veil piercing, alter ego