Arbitration without consent in commercial arbitration: What the case Dallah v/ Pakistan tells us about evolution of French case law in arbitration

By Alexandre Malan Dallah v. Pakistan blatantly illustrates the discrepancy between French and British approaches to the question of extension of arbitration clauses to third parties - such as assignee, sub-contractor, companies within the same group of companies, representative - and evidences the liberalism of French Courts accepting this extension in cases where such third parties have not clearly expressed their consent to be bound by the arbitration clause contained in contracts they have not initially signed1. In this specific case, a contract was signed between Dallah, a Saudi company, and a trust constituted by the President of Pakistan, for the construction of a building for the lodging of Pakistani pilgrims in the Mecca (hereafter the "Contract"). A board had been appointed as trustee, the Minister of Religious affairs of Pakistan acting as secretary of the board. The trust had been instituted for a limited period of time with further renewal. This period had elapsed and the trust had then ceased to exist. Notwithstanding this, the Minister of Religious affairs addressed a termination letter to Dallah, and the following day summoned it to appear before the Pakistani Court on behalf of the trust. Dallah introduced an arbitration claim against the Pakistani State (considering that the trust was not existing any more) on the basis of the ICC clause contained in the contract. The Pakistani government maintained that it was not a party to the contract and contested the applicability of the arbitration clause.

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