The
structure of group of companies — companies that are legally independent but
financially linked — is very common today in the international commercial
context where arbitration constitutes the leading dispute resolution mechanism.
The issue thus arises as to whether the effects of an arbitration agreement
that has been signed by a company belonging to a group, may be “extended” to
another company of the same group that has not signed the said arbitration agreement,
and if so, under which conditions such extension may be effected. Various
mechanisms are employed in order to overcome the main impediments to the
extension, that is the principle of privity of contract and the requirement of
consent of all parties to an arbitration, the determinant factor, however, not
being the existence of the group per se but the true intention of all parties
that the company in question be also bound by the said arbitration agreement.
The issue of the extension is thus set forth as a fact-based evaluation of a
new form of consent, more focused on facts and conduct than on signatures per
se. The approach of the four legal systems under examination — French, American,
Swiss and English — is not uniform, the first two appearing more liberal than
the other two. Nevertheless, under all circumstances the extension of an
arbitration agreement within a group of companies constitutes the exception and
not the rule.