In Arthur Andersen LLP v Carlisle, 556 US 624 (2009), Scalia J stated on behalf of the majority of the US Supreme Court at page 631 that non- signatories may be bound by an arbitration agreement if “’traditional principles’ of state law allow a contract to be enforced by or against nonparties to the contract”
Please discuss any three principles under which a non-signatory may be held to be a party to arbitration agreement or may otherwise claim the benefits of an arbitration agreement
“[T]he types of claims that are non-arbitrable differ from nation to nation. Among other things, classic examples of non-arbitrable subjects in different jurisdictions include certain disputes involving criminal matters; domestic relations and succession; bankruptcy; trade sanctions; certain competition claims; consumer claims; labor or employment grievances; and certain intellectual property matters.
As these examples suggest, the types of disputes which are nonarbitrable nonetheless almost always arise from a common set of considerations. The nonarbitrability doctrine rests on the notion that some matters so pervasively involve “public” rights and concerns, or interests of third parties, which are the subjects of uniquely governmental authority, that agreements to resolve such disputes by “private” arbitration should not be given effect” per Born, International Commercial Arbitration (2nd ed, Kluwer International, Alphen aan den Rijn, 2014) p 945.
Please discuss the doctrine of ‘arbitrability’ and discuss the issues surrounding the arbitrability of both competition law/antitrust and insolvency cases.
The International Bar Association has formulated Guidelines on Conflict of Interest in International Arbitration (the ‘Guidelines’) to ensure that international arbitration proceedings are not hindered by a lack of uniformity in the worldwide application of rules concerning the independence and impartiality of arbitrators. Please discuss the duties of impartibility and independence imposed upon arbitrators in international arbitration and discuss how the Guidelines influence challenges to arbitrators by reference to international case law.
In The Lisheen Mine v Mullock and Sons (Shipbrokers) Ltd  IEHC 5 the Irish High Court (Cregan J) stated at page 43 that “more appropriate approach for a court to follow is to give full judicial consideration to the issue as to whether there is an arbitration agreement between the parties”. In contrast, in P Elliot & Co Ltd v FCC Elliot Construction Ltd  IEHC 361 the Irish High Court (Mac Eochaidh J) approved at page 21 the test adopted by the British Columba Court of Appeal in Gulf Canada Resources Ltd v Arochen International Ltd  BCJ 500 in which it was stated that a court should refer a dispute to arbitration where “(i) it is arguable that the subject dispute falls within the terms of the arbitration agreement; and (ii) where it is arguable that a party to the legal proceedings is a party to the arbitration agreement”.
Please discuss the relative advantages and disadvantages of these two competing standards of review (namely full review and prima facie review) and discuss the possible benefits of any alternative hybrid standard of review either used by national courts or promoted by commentators.
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