LALIVE in the press | 28 April 2021

Dispensing with written consent – or consent altogether – in third-party extensions under the New York Convention

In an article published by b-Arbitra and available here, LALIVE partner Melissa Magliana and associate Philippe Hovaguimian discuss two recent decisions allowing a third party to compel arbitration under Article II(3) of the 1958 New York Convention on the basis of an arbitration clause it had not signed. The first decision was rendered by the Swiss Supreme Court on 17 April 2019 in the case of A. d.d. v. B. Suisse SA (145 III 199) and the second by the U.S. Supreme Court on 1 June 2020 in the case of GE Energy Power Conversion France SAS, Corp., v. Outokumpu Stainless USA, LLC, et al.

The article critically examines the decisions of these two courts and their willingness to dispense with written consent, or with consent altogether, when it comes to the extension of arbitration agreements to third parties, taking the purpose and significance of the Convention’s form requirements de lege lata and the role that consent plays in the enforceability of arbitration clauses into account. The article concludes by considering the extent to which these decisions and other developments in international arbitration reflect a need for reform of the Convention more broadly.

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