Per aspera ad astra - non-signatories in arbitration: from "juristic chemistry" to concept of dispute
School of Economics, Business Administration and Legal Studies, LLM in Transnational and European Commercial Law, Mediation, Arbitration and Energy Law
Prof.Dr. Athanassios Kaissis, Dr. Komninos Komnios
This dissertation was written as part of the LLM in Transnational and European Commercial law and Alternative Dispute Resolution at the International Hellenic University. For decades, academics and practitioners unsuccessfully try to unravel the mysterious password to the non-signatories issue in arbitration. To the date, the only solution so far proposed by current practice is a traditional concept of consent based on the application of contractual theories and general principles. However, the current commercial reality develops new sophisticated business forms that cannot be covered by such an elementary approach resulting in a chaotic decision-making (the so-called “legal creativism”) based on efficiency and fairness to the detriment of consent in the sense of its replacement.
Does this mean that a traditional concept of consent to arbitrate has been modified un-der the influence of the arbitration transforming process? Is it really necessary (im-portant) to sign an arbitration agreement at all? Does this mean that accepted contrac-tual theories are pure legal fictions based on none of consent at all? If so, could a ju-risdictional consideration based on a concept of dispute be an alternative solution to the problem? This work attempts to analyze the aforesaid trends and determine whether the “out of the box” thinking could be a practical remedy to the problem in the era of cosmopolitan arbitration?
I would like to express my deepest gratitude and appreciation to my supervisor Profes-sor Peter Gottwald for his significant contribution to my thesis with his invaluable sup-port and advices that led me to the right way.
On a more personal level, I want to express my gratitude to my family for their uncondi-tional support and love as well as a constant inspiration during my studies in Greece.
non-signatories, arbitration, concept of dispute