• 한국중재학회지:중재연구
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• 제18권1호
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• pp.71-96
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• 2008

Arbitration is fundamentally a matter of contract, whereby contractual parties may only be required to submit a dispute to arbitration pursuant to their formal agreement. However, there are several important exceptions to this rule that have developed under common law notions of implied consent. These doctrines may serve either to benefit or to harm a nonsignatory to an arbitral agreement because either (1) the nonsignatory may compel a signatory to the agreement to arbitrate a dispute or (2) the nonsignatory may be compelled to arbitrate a dispute despite never having signed an arbitration agreement. The Court has a long-standing domestic policy of favoring arbitration, and these doctrines reflect that policy. 1. incorporation by reference An arbitration clause may apply to a party who is a nonsignatory to one agreement containing an arbitration clause but who is a signatory to a second agreement that incorporates the terms of the first agreement. 2. assumption An arbitration clause may apply to a nonsignatory who has impliedly agreed to arbitrate. Under this theory, the nonsignatory's conduct is a determinative factor. For example, a nonsignatory who voluntarily begins arbitrating the merits of a dispute before an arbitral tribunal may be bound by the arbitrator's ruling on that dispute even though the nonsignatory was not initially required to arbitrate the dispute. 3. agency A nonsignatory to an arbitration agreement may be bound to arbitrate a dispute stemming from that agreement under the traditional laws of agency. A principal may also be bound to arbitrate a claim based on an agreement containing an arbitration clause signed by the agent. The agent, however, does not generally become individually bound by executing such an agreement on behalf of a disclosed principal unless there is clear evidence that the agent intended to be bound. 4. veil piercing/alter ego In the corporate context, a nonsignatory corporation to an arbitration agreement may be bound by that agreement if the agreement is signed by its parent, subsidiary, or affiliate. 5. estoppel The doctrine of equitable estoppel is usually applied by nonsignatory defendants who wish to compel signatory plaintiffs to arbitrate a dispute. This will generally be permitted when (1) the signatory must rely on the terms of the contract in support of its claims against the nonsignatory, or (2) the signatory alleges that it and the nonsignatory engaged in interdependent misconduct that is intertwined with the obligations imposed by the contract. Therefore, this article analyzed these doctrines centering around case-law in America.

• 한국중재학회지:중재연구
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• 제12권2호
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• pp.303-336
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• 2003

Incorporation of an arbitration clause by reference to other documents occurs in many international business transactions. The reference is either to another document that contains arbitration clause or to trading rules which contain the arbitration clause, without the main contract mentioning that arbitration has been agreed upon. In fact, incorporation by reference in to a contract of an arbitration clause set forth in another agreement is deemed valid in any number of circumstances, even when the parties to the two contractual instruments are not the same. Difficulties arise when, instead of an express arbitration provision, a contract contains a clause which refers to the trading rules of a certain trade association, so-called external arbitration clause. The U.S. courts which will presume that the parties intended to arbitrate under a particular set of rules when they expressly mentioned arbitration in their agreement, have sometimes refused to enforce contract clauses that do no more than refer to particular trading rules, even if these rules contain provisions binding the parties to arbitrate their disputes. The courts in such cases tend to be careful in determinig whether intent to arbitrate is present. In maritime contracts, the arbitration clause in a charter party is often referred to in the bill of lading. Such reference usually is held binding upon the parties to the contract of carriage, their knowledge of such practice being presumed. A nonsignatory may compell arbitration against a party to an arbitration agreement when that party has entered into a separate contractual relationship with the nonsignatory which incorporates the existing arbitration clause. If a party's arbitration clause is expressly incorporated into a bill of lading, nonsignatories … who are linked to that bill … may be bound to the arbitration agreement of others. An arbitration clause in a charterparty will be incorporated into a bill of lading if either - (a) there are specific words of incorporation in the bill, and the arbitration clause is so worded as to make sense in the context of the bill, and the clause dose not conflict with the express terms of the bill; or (b) there are general words of incorporation in the bill, and the arbitration clause or some other provision in the charter makes it clear that the clause is to govern disputes under the bill as well as under the charter. In all other cases, the arbitration clause is not incorporated into the bill.

• 한국중재학회지:중재연구
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• 제19권3호
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• pp.161-178
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• 2009

This article focuses on the enforceability of arbitration agreements m the dispute of standby letter of credit, especially with the case analysis of the leading case from the U.S. Bankruptcy Court. In Nova Hut a.s. v. Kaiser Group International Inc. case, while the underlying contract contained an arbitration clause, a guarantee to assure contractor's performance did not contain an arbitration clause. Nova Hut drew on the standby for the Contractor's failure to deliver contractual obligations. Against the Kaiser's action under US Bankruptcy law, Nova Hut moved to stay the proceedings pending arbitration, to compel arbitration, and to dismiss the complaint. The US Bankruptcy Court for the District of Delaware denied Nova Hut's motions. On appeal, Kaiser argued that it was not subject to arbitration since it was not a party to the contract. It also argued that Nova Hut had waived its right to arbitration by filing a proof of claim in the bankruptcy proceeding and commencing legal actions in other countries. The appeals court noted that in order to avoid arbitration on those grounds prejudice must be shown. It indicated that because there was no long delay in requesting arbitration and no discovery conducted m the course of litigation, the Kaiser could not demonstrate actual prejudice on the part of Owner. In light of public policy favoring arbitration, the nature of the claims in the parties' agreements, Kaiser's conduct in embracing the agreements, and their expectation of benefit, the appeals court ruled that the doctrine of equitable estoppel applied in requiring the Parent to arbitrate.