The revision to the UNCITRAL Arbitration Rules represents a major effort to update the 1976 seminal text to reflect the changes and trends that more than 30 years of arbitral practice have introduced. In this context, among the topics that have been discussed by the UNCITRAL Working Group II are the implications of multi-party disputes in the arbitral proceedings. This article focus on the revisions that have been proposed in the working papers to one of the issues regarding multi-party arbitration: the joinder of third parties.
This article explains that even though the revision represents a significant leap forward, the proposed text is only tackling some of the issues related to the joinder of third parties while leaving other issues untouched and unresolved. Particularly, the fact that, accordingly with the revised text, only the parties to the arbitration may request the joinder of a third party, request that could not be made by the third party itself, and the fact that it is a requisite that such third party was also a party to the arbitral agreement, apparently closing the door to the possibility to bring to the arbitration those third parties that despite not being part of the arbitral agreement have implicitly consented to the arbitration by virtue of their conduct in the performance of the contract or otherwise.
The article suggest that a more appropriate solution to the issue of joinder of third parties would be to adopt a simpler, broader, language empowering the arbitral Tribunal to decide on the joinder, on a case-by-case basis, and taking into consideration two basic elements: the consent of the third party to the arbitration (either explicit or implicit) and the prejudice that the parties to the arbitration and/or the third party may suffer as a consequence of the joinder.