Związanie zapisem na sąd polubowny i orzeczeniem arbitrażowym członków zgrupowania spółek, ich wspólników i interesariuszy
Extension of the arbitration agreement and arbitration award to members of group of campanies, their shareholders and stakeholders

Summary/Abstract: The paper discusses case law and opinions of legal commentators on the growing phenomenon of extension of rights and obligations arising under agreements to arbitrate and arbitral awards to members of group of companies, their shareholders and stakeholders who are not signatories of the agreement to arbitrate. At the outset of the paper, the author argues that the group of company’s doctrine constitutes just one example of a liberal trend of widening the realm of arbitrability and jurisdiction of arbitration tribunals. The author points out that this trend cannot be explained only in terms of requirements of modern business but — at least to certain extent — by the inability of the court system to cope with the growing number of litigations and the economic interests of the arbitration community (i.e. arbitrators, legal counsels and other providers of services in the field of the private system of dispute resolution). The paper analyses legal theories aimed at justifying extension of arbitration agreements and arbitral awards to the non-signatories (i.e. implied contract, piercing corporate veil, ostensible authority, alter ego doctrine, etc.). The author opines that none of these theories justify a departure from the basic principle that the touchstone of arbitration is a freely negotiated agreement of the parties to arbitrate. This principle also applies to a situation when a third party intends to join an existing agreement to arbitrate. Binding non-signatories by an arbitration agreement is conceivable in the event the law makers so decide in justified circumstances (e.g. Art. 1163 of the Code of Civil Procedure). The author also advocates that the concept of collateral estoppel should be implemented in the Polish Code of Civil Procedure in order to extend the principle of res indicata to persons having sufficient commonality of interests with the parties to a final court or arbitral judgement.

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