In arbitration, the ability to take part in proceedings is exclusively determined by evidence of the parties' 'consent' to arbitrate. However, this approach is unable to accommodate modern construction projects which have become increasingly complex and require the participation of multiple parties for their completion. Despite playing active roles in construction projects and having substantial legal and financial interests in the outcome of disputes, third parties may not take part in arbitral proceedings between two contracting parties who have consented to an arbitration agreement. This may result in an inequitable and commercially undesirable situation not only for third parties but often for one of the contracting parties who may require the third party's participation to assert certain claims or defences.
This article suggests that where multiple parties are involved in one construction project a contextual approach should be used to determine arbitral jurisdiction. Where a third party voluntarily submits to arbitral jurisdiction upon invitation of one of the contracting parties and where the intervention is to assist the inviting party's claims or defences, a contextual approach would provide a more effective means of resolving the disputed issue of third-party intervention without offending the principle of party autonomy or arbitration's consensual origins.Journal of International Arbitration