nuanced, taking into account the role of the non-signatory 'in the conclusion, performance, or termination of the contracts'.
Government of Pakistan, Ministry of Religious Affairs v Dallah Real Estate and Tourism Holding Company
The ICC analysis based on the non-signatories' involvement with the contract was supported by the French courts in the 2010 case of Pakistan v Dallah. The Paris Court of Appeals dismissed the challenge of an ICC award which upheld the jurisdiction against Pakistan arising out of the contract signed by Dallah and a trust established by Pakistani presidential in negotiations, performance and termination of the agreement showed that it (and not the trust) was the 'true party' to the agreement and, hence, to arbitration.
The UK Supreme Court had earlier refused to enforce the award in England on the basis that the Government of Pakistan was not a proper party to the arbitration.
Case No. 4A_450/2013
In 2013, the Swiss Supreme Court applied a similar test. The facts of this case are a little complicated. It involved three contracts between Iranian company A and Italian company B1 (part of B Group of companies). The project was suspended and parties sought to resolve the dispute by negotiation. During the negotiations the parties agreed that the project would be carried out by a specific division of B1's parent company – B2 – instead of B1, and that a member of this division would become responsible for the project. It was also agreed that B2 was to provide a guarantee for performance of the contract.
The division responsible for the project was later acquired by B3 (also a company within B Group). Subsequently, B1 started arbitration against A, and A brought a counterclaim against B1 and B3. The tribunal upheld B3's objection against jurisdiction, but the Swiss Supreme Court set aside this part of the award and remitted the case to the tribunal.
In its decision, the Swiss Supreme Court relied not only on the involvement of B1, B2 and B3 in carrying out the project, but also on the principle of good faith: the court considered that the confusion that existed among the B Group of companies was a valid reason for A's inability to identify the actual contracting party.
Hazel Brasington is a transport lawyer based in Melbourne.
She is a highly experienced and highly regarded transport lawyer with commodities expertise. Her current practice includes contentious and advisory work in shipping, commodities, international trade, insurance, ports and logistics and energy. With significant international and domestic experience Hazel is regarded as one of the leading lawyers in her area.
Andrey Panov is a dispute resolution lawyer based in Moscow focusing on international arbitration and litigation.
Andrey acts as counsel in litigation and arbitration. His practice spans international commercial and investment arbitration; construction, general commercial and corporate disputes; enforcement of arbitral awards and foreign court judgments; proceedings in support of foreign litigation and arbitration.