Professional Documents
Culture Documents
Article
o Author :
o About Author :
Dominique Vidal
* Lecturer in law at the University of Nice Sophia-Antipolis (France); attorney at the Bar of Grasse
(France).
o Published in:
ICC International Court of Arbitration Bulletin Vol. 16 No. 2
o Reference page : 63
o Publication date : 2005
o Published title : The Extension of Arbitration Agreements within Groups of Companies: The Alter Ego Doctrine in Arbitral
and Court Decisions
o Keywords :
[Arbitration agreement] [Alter ego] [Case law] [Convention d'arbitrage] [Alter ego] [Jurisprudence]
o Language :
English
o Related doc(s) : See below
Table of Contents
I. Extension on grounds linked to consent
A. Grounds related to the formation of the contract
B. Grounds related to the performance of the contract
II. Extension on grounds unrelated to consent
A. Extension against a party's will through the application of a general principle of law
B. Extension without consent
Conclusion
1. The extension of arbitration agreements within groups of companies has become a classic question in arbitration
law. 1 It is about whether a company that has not signed an arbitration clause may nevertheless be obliged to
participate as defendant in arbitration proceedings initiated pursuant to that clause if and on the grounds that the
clause was entered into by another company in the group to which it belongs. Sometimes the question concerns the
opposite situation, namely whether a company that again has not signed the arbitration agreement contracted by
another company in the group to which it belongs may initiate arbitration proceedings. In both situations the question
may also arise in relation to a natural person who owns all or the greater part of a company's shares.
2. This legal problem has been referred to through such expressions as the transparency of legal personality, piercing
of the corporate veil, alter ego (i.e. the company that has signed the agreement is regarded as a double of the
company in question). Adopting a more descriptive and neutral expression, we have decided to refer rather to the
extension of an arbitration clause to non-signatory parties. This extension is necessarily a matter for the arbitral
tribunal, which must decide between the claim of the company targeted as a defendant that it should remain outside
the proceedings and its opponent's claim that it should be brought into those proceedings, or between a would-be
claimant's request that it be admitted as a party to the proceedings and the defendant's claim that it should remain
outside. [Page64:]
3. The question arises with increasing frequency and is important from a legal point of view. It is worth briefly
recalling that in international trade most operators are companies belonging to groups of companies. In addition, it is
quite common in contractual operations containing arbitration agreements for non-signatory companies belonging to
the same group as the company that signed the agreement to be present or involved in various ways. The legal
aspects of the question have thus been brought out to such an extent that many arbitral tribunals and courts now
readily consider that a company which has not signed the arbitration clause entered into by another company in the
same group is bound by that clause, while others take the opposite view. In other words, the question is
controversial.
4. That the question should be controversial and lead to widely diverse solutions is due to the fact that it touches on
two highly problematic areas: in company law, the question of groups of companies; and in the law of international
commercial arbitration, the extension of the arbitration agreement, i.e. the recognition of an obligation to submit to
arbitration on the part of a person that has not signed the arbitration clause. The former is encountered on a daily
basis across the broad spectrum of law relating to companies2 and leads to a wide range of individual solutions that
place varying degrees of emphasis on the autonomy of each company in the group or the unity of the group as a
whole. The latter is encountered not just in the context of groups of companies but also in relation to strings and
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groups of contracts, where there is divergence between a positivist and formal view opposed to the extension of the
arbitration agreement, and a position more receptive to its extension, based on a rational and substantive
interpretation that takes into consideration the parties' intention. 3
5. The difficulties are all the greater as the question may have important practical implications and reflect radically
differing positions. When difficulties arise in connection with a contract, each party tries to bring into the proceedings
all those persons whose presence it considers to be in its interest, whether to establish the facts of the case, provide
adequate reasons for the decision, or ensure that the award will be enforceable. For instance, the involvement of
another company in the group (parent company, sister company, principal shareholder, managing company,
subsidiary company, associated company, etc.) could help in proving certain facts, ensuring the admissibility of
certain factual or legal arguments, or enforcing the decision to be made.
6. One way of dealing with the problem would be to pretend that it does not exist and to consider only the assets of
the company that has signed the arbitration agreement. Accordingly, the arbitration agreement would be attached to
these assets alone and any attempt to extend it to another company within the group would be inadmissible. There
would appear to be some support for such an approach in company law, with a marked resistance in legal writing and
case law to any extension of undertakings within groups of companies. The basic principle is still that each company
within a group is legally independent: a parent company cannot sue in the place of its subsidiary; 4 a parent
company is in principle not answerable for the undertakings of its subsidiaries, 5 nor vice versa. 6 In arbitration law
this analysis could point to the reticence of scholars towards any extension of the arbitration agreement and their
insistence on the formal expression of the parties' intention. [Page65:]
7. It is noteworthy, however, that the number of decisions allowing and approving such an extension has been
increasing. There are no doubt strong reasons for this, one of these being the parties' legitimate expectations as to
the practical effectiveness of the jurisdictional role of arbitration. However, it is only possible to extend the arbitration
agreement if the reasons justifying its extension truly exist and are evidenced through specific documentation: the
mere fact of belonging to a group of companies is not in itself a ground for extending an arbitration agreement. This
article looks at these reasons as recorded in the decisions of arbitral tribunals and State courts. They define the basis
on which arbitration agreements may be extended within groups of companies, the criteria for doing so and the
limitations to which extension is subject. As a general rule, the solution will depend on a detailed examination of the
circumstances of each case. 7
8. The key issue in this great debate is consent to the arbitration clause. In some cases, the extension of the clause is
justified by the proximity of consent: although it may appear at first sight to be lacking, it is not far away and the
extension of the arbitration clause is in this case justified by a broad interpretation of consent. Although there is here
a large measure of creative legal reasoning, the awards are merely implementing proven legal principles that
establish a link between the arbitration agreement to be recognized and consent implied, caused, hidden or revealed
by certain behaviour. Like Georges Bizet's L'Arlsienne, it may not be visible but is much talked about. The extension
of the arbitration agreement on grounds linked to consent will be dealt with in part I below.
9. However, arbitral tribunals are also confronted with situations of a different kind. In contrast to the previous
situation, where the arbitration agreement is extended as it were by prolonging consent, here a party is regarded as
bound by the arbitration agreement despite having clearly expressed an intention to the contrary or without any
reference to consent. These situations will be examined in part II, where it will be seen that the solutions are more
diverse and more questionable when not based on consent.
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of all companies involved was that Dow Chemical France and Dow Chemical Company were parties to the contracts,
despite the fact that they had not signed them, and that the arbitration clause was therefore applicable to them'.
13. The Paris Court of Appeal 11 likewise approved the decision of an arbitral tribunal whose interpretation of the
agreements in question had led it to find that the parties' mutual obligations were closely intertwined and that the
two parent companies dominated their respective subsidiaries, which were subject to the parent companies'
commercial and financial decisions, and thus to infer that it was the common intention of the parties to make the
parent companies liable for any sums due by the subsidiary.
14. A similar reason is found in a decision of the Court of Appeal of Pau: 12 'An arbitration clause that has been
expressly accepted by some companies in the group must bind the other companies which, based on the part they
played in the conclusion, performance or termination of the contracts containing the said clauses, would appear to
have been intended by all the parties in the proceedings to have actually been parties to those contacts or primarily
concerned by them or by the disputes arising therefrom.' Moreover, the Court of Appeal introduced this statement
with the words: 'it is acknowledged at law that . . .'.
15. Further confirmation of the above is found in an award13 which states that although the existence of a group is
the first condition for joining a third party to the arbitration proceedings, it is also necessary to determine the parties'
actual intention at the time of the facts or, at the very least, the intention of the non-signatory third party. The award
warns against artificially extending the effects of an arbitration clause to a legal entity that has not consented
thereto, even tacitly. The arbitral tribunal in this case examined the facts to see whether the parent company was
considered as a party to the agreement or particularly concerned by it and found that there was no case for
extending the arbitration agreement. 14
16. If the part played by another company in the group or by an executive of the company that signed the clause is
not sufficiently substantial, the company or executive cannot be regarded as having consented to the arbitration
agreement. 15 Thus, after stating that implied acceptance of the arbitration clause can result from a [Page67:]
subsidiary's active participation in the negotiation of the underlying contract containing the arbitration clause, an
arbitral tribunal 16 found that its detailed examination of the case did not reveal any evidence sufficiently conclusive to
show that this had been the case. In its discussion of the case, the arbitral tribunal considered the possibility of a
subsidiary being actively involved in the negotiation, performance or termination of the underlying contract. It is
indeed possible to take a wider view of a company's conduct in order to show, for example, that there was some
confusion between it and the signatory of the arbitration clause.
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federal policy towards arbitration'.
23. In such situations, the reason for extending the arbitration agreement is that the company in question has
behaved in such a way as to lead its contracting partner to believe that it was contractually bound (the consent is, as
it were, supposed, i.e. the other person could justifiably consider it as having been given). Somewhat different,
although not unrelated, is the following situation seen in more objective terms.
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involvement. For instance, the corporate veil will not be pierced where the company that signed the clause is in a
position to perform the relevant service, 38 or where the company in question intervened merely to provide logistical
support where this was inadequate. 39 [Page70:]
A. Extension against a party's will through the application of a general principle of law
a) Sanction of fraud
38. It is well known that fraud corrupts everything. It was therefore inevitable that attempts to prevent a solvent
company naturally concerned by a transaction from being bound by an arbitration agreement signed by another
company belonging to the same group should be thwarted on this basis. In an appeal brought before the French
Court of Cassation against a decision 46 that allowed the extension of an arbitration clause in a group of companies
linked as an economic unit, the Court rejected the appeal, but on the grounds that there had been a subterfuge
constituting fraud. 47
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39. Although fraud is a sufficient criterion in itself, one may ask whether it is a necessary criterion, and could thus be
the sole criterion justifying the extension of the clause. Although the question may seem strange, it is relevant insofar
as there have been decisions 48 stating this to be the case, but in a context that makes it clear that fraud was used in
conjunction with other criteria. The extension of the arbitration agreement is not limited to fraud alone.
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of awards, even in recent times, that refuse to extend an arbitration clause if, in addition to the economic unity of the
group, there are no other criteria specifically linked to the behaviour of the parties that are sufficient for this purpose.
62
Conclusion
51. In this article, we have focused chiefly on French international commercial arbitration law, in light of which three
additional remarks should be made:
The first concerns the sources of international commercial arbitration law. We would simply recall that national
laws on international commercial arbitration are attentive and receptive to comparative commercial arbitration
law. So too is this article, albeit insufficiently and incompletely.
The second concerns the differences between national laws. Subject to the preceding remark, it is generally
accepted that French law, which was a pioneer in extending arbitration clauses, has become a reference, midway
between the more static tendency illustrated by English law and even more so by Swiss law, and the dynamic
tendency that has recently emerged in the United States. 68
The third concerns the developments that might be expected in the future. We hope that here, as in other areas
such as the acceptance of lex mercatoria or the conduct of arbitration proceedings, the different legal traditions
will gradually converge. Moreover, some awards regard the extension of the arbitration agreement as the
application of a principle of lex mercatoria.
52. At the present time, there is a balance between arbitral awards in favour of extending arbitration agreements and
those opposed to doing so. By this, we do not mean that they are equal in number (for this would be meaningless),
but that the respective importance of each group is roughly equivalent. The balance should not be thought of as
fixed, but variable:
within the context of individual cases, where the general tendency is to adopt a pragmatic approach which both:
- excludes any bias towards extension or non-extension;
- seeks to identify in each individual case the facts that could be used as grounds for extending the arbitration
agreement, if necessary; [Page75:]
within the wider context of the development-if such be the case-of a general tendency in the way the problem is
dealt with in arbitration.
53. It should be stressed that one can only look for tendencies in arbitration and clearly cannot talk of developments
in arbitral case law in an institutional sense. Each arbitral tribunal has full exercise of its powers and its responsibility
to pronounce the law. The present article therefore has the modest purpose of simply pointing out trends. We would
venture to suggest that the trend is towards applying the substantive conception of international commercial
arbitration to the issue of alter ego:
It is noteworthy that some decisions regard the extension of the arbitration agreement as natural and a priori
possible and they examine the grounds upon which the company in question could or could not avoid being
bound by it. Although such an approach remains something of an exception, it points to a change of method:
formal contractual positivism, i.e. the formal expression of the parties' intention, is not-or not always-the first
method (chronologically and logically) used when judging the situation.
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More generally, the use of the 'substantive' approach-which looks above all at the economic operation, for which
the contract is an implementing instrument, rather than at the instrument itself-echoes other uses of the same
approach in French international commercial arbitration law, especially in connection with the extension of the
arbitration agreement in groups of contracts.
Other uses of the substantive approach, peculiar to company law, may have a direct bearing on the alter ego
question and thereby lead to an extension of the arbitration agreement. Just as a contract is an instrument
reflecting a given concrete operation (technical, economic, etc.), so the contract establishing a company is the
instrument that reflects its organization. In French law, a company is created 'in the common interest of the
partners'. 69 The latter make contributions to 'a common enterprise'. 70 Although the contract establishing a
company has all the consequences its nature entails within the meaning of Article 1135 of the Civil Code, it
cannot be applied or interpreted without taking into account the interest, existence and nature of the
undertaking. In concrete terms and in the present context, it will be noted that some arbitral awards take
account of the fact that a company was newly created for the matter in question and lacks any operational
independence. They infer that the arbitration agreement should be extended as there is no real enterprise. On
the other hand, when a subsidiary has an independent economic existence evidenced by its duration and true
operational independence, i.e. is an actual undertaking, then other criteria are required before the arbitration
agreement can be extended.
54. The question we have been considering is marked by its eclectic nature, both as far as the methods of reasoning
and their practical implementation are concerned. This does not facilitate the task of an arbitration institution such as
the ICC International Court of Arbitration, especially at the start of proceedings:
The arbitration institution is clearly not empowered to rule on the question of extending the arbitration
agreement.
After its prima facie review of the arbitration agreement, the institution may have cause to join to the
proceedings a company which a party wishes to implicate on [Page76:] grounds that it is an alter ego, if only to
allow that company to defend itself before the arbitral tribunal.
Some might consider this argument to be fallacious and preconceived. However, this would be to overlook the
fact that the criteria for determining an alter ego necessitate an examination of the case to an extent
incompatible with the limits of a prima facie review.
1
J. El-Ahdab, La clause compromissoire et les tiers (Presses universitaires d'Aix-Marseille) [forthcoming]; R. Alford,
'Binding Sovereign Non-Signatories' (2004) 19:3 Mealy's International Arbitration Report 27; M. de Boissson, 'Effets
d'une convention d'arbitrage l'intrieur d'un groupe de socits' Bull. Joly 1990, p. 999; G.B. Born, International
Commercial Arbitration, Commentary and Materials, 2d ed. (Transnational/Kluwer Law International, 2001) at 653-72;
A. Chapelle, 'L'arbitrage et les tiers : le droit des personnes morales (Groupes de socits, Interventions d'Etats)' Rev.
arb. 1988.475; Y. Derains & S. Schaf, 'Clauses d'arbitrage et groupes de socits' RDAI/IBLJ.1985.231; I. Fadlallah,
'Clauses d'arbitrage et groupes de socits' Trav. Comit fr. DIP 1984-1985.105; E. Gaillard & J. Savage, eds.,
Fouchard, Gaillard, Goldman On Internatinoal Commercial Arbitration (Kluwer Law International, 1999) at para.
500ff.; B.Hanotiau, 'L'arbitrage et les groupes de socits' Gaz. Pal. (18/19 December 2002) 5; Ch. Jarrosson,
contribution to discussion in L'arbitrage et les tiers Rev. arb. 1988.494 at 498-99; idem, 'Conventions d'arbitrage et
groupes de socits' in Groupes de socits : contrats et responsabilits (LGDJ, 1994); S. Jarvin, 'La validit de la
clause arbitrale vis--vis de tiers non signataires de la clause - Examen de la doctrine de groupe de socits dans
l'arbitrage CCI' RDAI/IBLJ 1995.730; Ph. Leboulanger, 'Groupe d'Etat(s) et arbitrage' Rev. arb. 1989.415; M.R. Pimm,
'Jurisdiction over Non-Signatories to the Arbitration Agreement - Can Arbitrators Pierce the Corporate Veil?' [2003]
Asian DR 5; JF. Poudret, 'L'extension de la clause d'arbitrage : approches franaise et suisse' J.D.I. 1995.893; idem,
'Trois remarques au sujet de la thorie des groupes de socits' ASA Bull. 1995.125; A. Redfern & M. Hunter, Law
and Practice of International Arbitration, 4th ed. (Sweet & Maxwell, 2004) at 148-52; O. Sandrock, 'Arbitration
Agreements and Groups of Companies' in Etudes de droit international en l'honneur de Pierre Lalive (Helbing &
Lichtenhahn, 1993) 625; J.J. Sentner Jr, 'Who is Bound by Arbitration Agreements? Enforcement by and Against
NonSignatories' Business Law International vol. 6/no. 1 (January 2005).
2
e.g. D.Vidal, Manuel de droit des socits, 4th ed. (LGDJ, 2003) at paras. 195-261.
3
e.g. D.Vidal, Manuel de droit franais de l'arbitrage commercial international (Gualino, 2004) at paras.116-95
4
Cass. com, 18 May 1999, Dr. soc. August 1999, no. 1287.
5
Cass. com., 24 May 1982, Rev. soc. 1983.361 (Annot. J. Bguin); Cass com, 2 May 2001 and Paris, 12 June 2001,
Bull. Joly 2001, nos. 246 and 247, p. 1097 (Annot. P. Scholer); Cass. com. 28 May 1991; Bull. civ. 1991.IV, no. 182,
p. 129; Paris, 9 November 2001, Bull. Joly 2002, no. 45, p. 218 (Annot. H. Le Nabasque); concerning a 'personal'
group: Cass. com., 5 November 1974, Rev. soc. 1974.492 (Annot. Y. Guyon).
6
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Paris, 26 October 2000, Dr. soc. 2001, no. 115 (Annot. F.-X. Lucas): as third-party debtor, a company does not have
to declare the amounts of money held by a foreign subsidiary.
7
See e.g. Ch. Jarrosson, 'Conventions d'arbitrage et groupes de socits', supra note 1; Fouchard, Gaillard, Goldman
On International Commercial Arbitration, supra note 1 at para. 500ff.
8
Award in ICC cases 7604 and 7610, J.D.I. 1998.1027 at 1029 (Annot. D. Hascher), J.-J. Arnaldez, Y. Derains, D.
Hascher, Collection of ICC Arbitral Awards 1996-2000 (Kluwer Law International/ICC Publishing, 2003) 510.
9
ICC case 4131, award of 23 September 1982, Dow Chemical: Rev. arb. 1984.137 at 148; J.D.I. 1983.899 at 904
(Annot. Y Derains); see also Fouchard, Gaillard, Goldman On International Commercial Arbitration, supra note 1,
para. 503.
10
Paris, 21 October 1983, Socit Isover-Saint-Gobain v. Socits Dow Chemical France et autres, Rev. arb. 1984.98 at
100 (Annot. A. Chapelle).
11
Paris, 31 October 1989, Socit Kis France et autres v. Socit Gnrale et autres, Rev. arb. 1992.90 at 93.
12
Pau, 26 November 1986, Socit Sponsor A.B. v. Lestrade, Rev. arb. 1988.153 (Annot. A. Chapelle).
13
ICC cases 7604 and 7610, supra note 8.
14
See also ICC cases 7604 and 7610, supra note 8, J.D.I. 1998.1053 (Annot. J-J Arnaldez).
15
ICC case 4504, J.D.I. 1986.1118 (Annot. S. Jarvin), S. Jarvin, Y. Derains, J.-J. Arnaldez, Collection of ICC Arbitral
Awards 1986-1991 (Kluwer Law & Taxation, 1994) 279; ICC case 4979, J.D.I. 1989.1100 (Annot. G. Aguilar-Alvarez),
S. Jarvin, Y. Derains, J.-J. Arnaldez, Collection of ICC Arbitral Awards 1986-1991 (Kluwer Law & Taxation, 1994) 380.
16
Interim award in ICC case 9873, see hereinafter p. 85.
17
Aix, 18 June 1975, Rev. jur. com., 1976.95 (Annot. J. Calais-Auloy); RTDCom 1976, 370 (Annot. C. Champaud).
18
Versailles, 17 September 1986, Rev. jur. com. 1987.149 (Annot. P. de Fontbressin); Cass. com., 5 February 1991, D.
1992.27 (Annot. Y. Chartier), Rev. soc. 1991.545 (Annot. Ch. Bolze).
19
Cass. com., 19 October 1993, Bull. Joly 1993, no. 369, p. 1239 (Annot. J.-J. Daigre).
20
Versailles, 21 April 2000, Dr. soc. juin 2000, no. 93 (Annot. D. Vidal), Bull. Joly 2000, no. 234, p. 914 (Annot. M.
Pariente).
21
Cass. com., 15 June 1993, Ate Spcialits chimiques v. St Lymo; Paris, 19 October 1994, Rev. soc. 1995.85 (Annot.
M. Pariente).
22
ICC case 5730, award of 24 August 1988, J.D.I. 1990.1029, S. Jarvin, Y. Derains, J.-J. Arnaldez, Collection of ICC
Arbitral Awards 1986-1991 (Kluwer Law & Taxation, 1994) 410; Cass civ 1re, 11 June 1991, Rev. arb. 1992.73
(Annot. D. Cohen).
23
Award of 9 September 1983, (1987) XII Y.B. Comm. Arb. 63, cited by B. Hanotiau, supra note 1 at para. 25.
24
ICC case 5721, J.D.I. 1990.1020, S. Jarvin, Y. Derains & J.-J. Arnaldez, Collection of ICC Arbitral Awards 1986-1990
(Kluwer Law & Taxation, 1994) 400, cited by B. Hanotiau, supra note 1 at para. 23.
25
ICC case 4504, supra note 15, cited by B. Hanotiau, supra note 1 at para. 45.
26
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ICC case 10758, see hereinafter p. 87, J.D.I. 2001.1171 (Annot. JJ Arnaldez).
27
Court of Appeals, 10th Circuit, 76 F.3d 393, 1996, W.L. 55 627, cited by B. Hanotiau, supra note 1 at para. 46.
28
ICC case 5894, (1991) 2:2 ICC ICArb. Bull. 25 at 27
29
ICC case 1434, J.D.I. 1976.978, S. Jarvin & Y. Derains, Collection of ICC Arbitral Awards 1974-1985 (Kluwer Law &
Taxation, 1990) 262.
30
ICC case 6000, (1991) 2:2 ICC ICArb. Bull. 31 at 34.
31
Paris, 22 March 1995, SMABTP et autre v. socit Statinor et autres, Rev. arb. 1997.550 (Annot. D. Cohen).
32
See also Paris, 30 November 1988, Rev. soc. 1989.88, Rev. arb. 1989.691 (Annot. P.-Y. Tschanz).
33
ICC case 5113, J.D.I. 1988.1207 (Annot. G. Aguilar-Alvarez), S. Jarvin, Y. Derains, J.-J. Arnaldez, Collection of ICC
Arbitral Awards 1986-1991 (Kluwer Law & Taxation, 1994) 361.
34
Paris, 31 October 1989, Rev. arb. 1992.90 and Paris, 11 January 1990, Rev. arb. 1992.95 (Annot. D. Cohen).
35
ICC case 11160, see hereinafter p. 99.
36
J.-F. Poudret, supra note 1.
37
D. Vidal, supra note 3.
38
ICC case 6610, (1994) XIX Y.B. Comm. Arb. 162, J.-J. Arnaldez, Y. Derains & D. Hascher, Collection of ICC Arbitral
Awards 1991-1995 (Kluwer Law International/ICC Publishing, 1997) 277.
39
ICC case 10818, see hereinafter p. 94.
40
ICC case 3879, interim award of 5 March 1984, cited by B. Hanotiau, supra note 1 at para. 17.
41
Decision of 29 June 1988, Rev. arb. 1989.52.
42
Paris, 7 October 1999, Rev. arb 2000.288 (Annot. D. Bureau).
43
Swiss Federal Tribunal, 1 September 1993, ASA Bull. 1996.623.
44
E. Gaillard, 'L'interdiction de se contredire au dtriment d'autrui comme principe gnral du droit du commerce
international' Rev. arb. 1985.241.
45
ICC cases 7604 and 7610, supra note 8.
46
Paris, 11 January 1990, Orri, Rev. arb 1990.95 (Annot. D. Cohen), J.D.I. 1991.141 (Annot. B. Audit), RTDCom.
1992.586 (Annot. J.C. Dubarry and E. Loquin).
47
Cass civ. 1re, 11 June 1991, Rev. arb. 1992.73 (Annot. D. Cohen).
48
US District Court of the Southern District of New York, 30 December 2002.
49
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ASA Bull. 1992.202, cited by B. Hanotiau, supra note 1 at para. 37.
50
ICC case 8385, J.-J. Arnaldez, Y. Derains & D. Hascher, Collection of ICC Arbitral Awards 1991-1995 (Kluwer Law
International/ICC Publishing, 1997) 474 at 479 (Annot. Y. Derains).
51
Ibid. at 484.
52
cf. E. Jolivet, 'The UNIDROIT Principles in ICC Arbitration', ICC ICArb. Bull., 2005 Special Supplement, 65.
53
cf. Fouchard, Gaillard, Goldman On International Commercial Arbitration, supra note 1 at para. 505, p. 304
54
Paris, 26 November 1986, Rev. arb. 1988.154 (Annot. A. Chapelle).
55
Aubry & Rau, Cours de droit civil franais, 4th ed., vol. VI, 1873, 573, p. 229: 'the objects over which man may be
entitled to exercise rights, in that they form the subject matter of the rights of a given person, are nonetheless
subject to the free expression of a single will or the action of a single legal power and as such form a legal whole'. Is
it not the very fact that a person's property rights and obligations (patrimoine) are subject to a single, economic or
legal power that explains why they are regarded as a unique and indivisible whole?
56
Cass com, 20 February 2001, RTDCom 2001.921, Dr. soc. 2001, No. 113 (Annot. J-P Legros).
57
Paris, 11 January 1990, Orri, Rev. arb 1990.95 (Annot. D. Cohen), J.D.I. 1991.141 (Annot. B. Audit), RTDCom
1992.586 (Annot. J.C. Dubarry and E. Loquin).
58
Cass civ 1re, 11 juin 1991, Rev. arb. 1992.73 (Annot. D.Cohen).
59
ICC case 5891, (1991) 2:2 ICC ICArb. Bull. 23 at 23-24.
60
Court of Appeals, Fifth Circuit, 9 September 2003, Bridas SAPIC v. Government of Turkmenistan, [2004] Int.A.L.R.
55; (2004) 19:10 Mealey's International Arbitration Report 6 at 8.
61
ICC case 6519, (1991) 2:2 Bull. CIArb. CCI 34, J.D.I. 1991.1065.
62
ICC cases 11209, 9517, 9719, see hereinafter pp. 102, 80, 83.
63
Court of Appeals, 4th Circuit, 863 F. 2d 315, 1988, Ryan, cited by B. Hanotiau, supra note 1 at para. 41 and note 39.
64
Court of Appeals, 11th Circuit, 10 F. 3d 753, 1993, Sunkist, cited by B. Hanotiau, supra note 1 at para. 40 and note
38.
65
Paris, 7 December 1994, Jaguar, Rev. arb. 1996.245 (Annot. Ch. Jarrosson), upheld by Cass civ 1re, 21 May 1997,
Rev. arb. 1997.537 (Annot. E. Gaillard).
66
ICC case 10758, supra note 26.
67
ICC case 8163, see hereinafter p. 77.
68
See Thompson CSF v. American Arbitration Association, 64 F. 3rd 773, 776 (2nd Cir. 1995); Bel-Ray Co. v. Chemrite
(PTY) Ltd., 181 F.3rd 435 (3rd Cir.1999).
69
Art. 1833 C. civ.
70
Art. 1832, para. 1, C. civ.
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