Signatory Arbitration Agreement Made Easy

Signatory agreement

yeah super well um welcome everyone to the session on uh non-signatories and arbitration agreements with a comparative view um i'm delighted that i'm joined by noah rubens from fresh fields in paris and by teamer artkolov who is at clifford chance in moscow and we're looking forward to having a interactive session we're going to have all the partisan participants be upgraded to panelists because we really welcome your interventions comments and questions now if you would um in the beginning we will have you all unmuted as we just get started and then we will unmute you as we can get into the discussions but if at any time you would like to make a comment please um just indicate by raising your hand waving your hand function which we should be able to see hopefully or you can also in the chat function indicate that you would like to make a comment or pose a question so uh this session is for all of us to share with each other and so let's make it a really active session um quick uh important notice we're recording so i hope everyone by staying on and participating is giving their ascent to being recorded we also will be having four polls that we will show we will um present during the during the session and we would really appreciate if everyone would respond to the polls so we can share the results that will help to generate our discussions so with that um let me just indicate briefly that there's so many topics which we could discuss within our session and we're hoping to cover a range of them one of the main things that we're going to be looking at of course are what are the ways in which non-signatories are brought into an arbitration and we know that there are a number of legal theories which are used in bringing non-signatories either into the role as a claimant or into the role as a respondent and we might explore a bit what is the difference there to launch though i think it's important our starting point is that we all agree that consent is the foundation to arbitration so we have to have consent and so these theories lead us to finding that there is consent to be a party to the arbitration agreement through one of these theories which could be implied consent through activities or through estoppel it can be through agency it can be through guarantors or sureties it can be through unified contracting relationships group of companies so there are a number of theories which are used and they may not be used in fact indeed are not used in different jurisdictions in the same way and they're all based in civil law which also means that the theories themselves may have some different contours and whether or not they're actually accepted and we will be exploring a bit what is the situation from the point of view of the arbitrators determining who's the party a court at the seat who's asked to review the award or a court at enforcement asked to recognize and enforce and what deference if any is given to the fat finding of the arbitrators or to a decision by a c corp so with that we're going to explore these exciting issues and we look forward to all of you um contributing to the discussion and i'm going to start by um uh with the first poll oksana can you show the first poll and to those of you just entered you're all going to become panelists soon so the first poll have you ever encountered non-signatory issues in your own cases either as council or arbitrator or both so is this an issue which you're finding is actually occurring is that one that's more interesting for discussions at webinars in classrooms we see the results coming in and it appears that there is quite a number of those of you replying who have dealt with non-signatory issues so we'll give you about 10 more seconds does everybody know how to vote because we've got a lot more people than we have voters here no abstentions important to have an opinion we're all lawyers we should be opinionated without asking you whether it's good or bad just if you've encountered it okay a couple more opportunities to vote okay patricia on my screen it's showing that hosts and panelists cannot vote so for some reason i guess when everyone got promoted to a panelist that may be why the votes aren't coming through um okay i don't can we change that oxana make sure that everyone can vote let me see um well daniel and i we can quickly um do the promotion to panelists shall we yes i think that the issue was that if you're a panelist you don't get to vote exactly yeah doing that so if you can let panelists also vote but in any case let's uh we have so many things to discuss but let's let's conclude that it seems that many most of you perhaps have encountered non-signatory issues um hopefully your colleagues in the contracting department or your clients have considered these things at the time of contracting because it's a lot easier to make arrangements for being able to get your hand into the deep pocket at the time of contracting than asking the arbitrators to do it at the time of dispute what we do is lawyer says some tricks up our sleeves and some legal mechanisms to try to solve that and so i would invite noah to maybe launch us into the discussion sure thank you so it is important to think first and foremost what's the applicable law if if every law in the world every system of law looked at non-signatory non-signatories to arbitration agreements in the same way it wouldn't matter much but that is definitely not the case there's a huge amount of variety and indeed one of the odd things about the binding of non-signatories is that it's very rare in national laws legislation on arbitration to have anything said at all on the issue of non-signatories very often uh national laws will say something about uh the need for a written agreement um although it doesn't say anything about the need to sign that agreement and most uh modern arbitration laws don't require that either a written agreement to arbitrate is often not required either and what you see is a development through court experience uh jurisprudence in the enforcement and blocking of enforcement confirmation and annulment of arbitral awards of a variety of different approaches in applying legislation which is often broadly similar on the issue that is to say permissive it could be under the uh explicit words of the laws on on arbitration and what you get is broadly three different approaches you get the approach where an arbitration agreement is just a contract like any other contract and the question as to whether a non-signatory is a party to that contract to arbitrate is the same as the analysis that one would engage in with respect to any other contract another set of uh countries take a stricter view it's actually more difficult to establish an agreement to arbitrate with the non-signatory than it would be with respect to some other kind of agreement and a third category of countries which is probably the smallest number of countries with france in the lead perhaps has a tendency towards a more permissive view that is to say it seems to be easier to bind a non-signatory to an agreement to arbitrate than to other uh um than to other forms of contract and that doesn't mean necessarily that the courts are uh ignoring the the um uh the question of consent which patricia brought up to the contrary most courts in most countries around the world start almost every analysis with the question as to whether there was consent but the kind of evidence and the weight of evidence required in order to establish that consent in a situation where the party in question is not obviously by signature by direct accession a party to that agreement is very different from place to place and so the question as to how you choose that um is central to any analysis now many people when they first look at the question say well it's obvious you know there's a governing law to the contract and that governing law of the contract is naturally going to apply to the arbitration clause as well well that's a logical approach in many countries if not most countries the legislation on arbitration provides for the separability the arbitration agreement but that only says that it could be a different law not that it will be a different law or that is usually a different law or not usually a different law or is it the place of arbitration and many people say well that's the natural thing because in any event you got to make sure if you're the arbitrators that the award that you're rendering against or in uh for the benefit of a non-signatory is enforceable someplace and that will depend in large part on whether it stands at the place of arbitration um and then some other people may say well no neither of those is any good because the non-signatory will naturally say well i didn't agree to the governing law and i didn't agree to the place of arbitration so why should i be bound to any agreement with respect to the law applicable to that agreement that i didn't consent to also quite logical and those people will tend to say uh well it should be the law that is uh the law of the place close most closely connected to the contract mark blessing wrote a very good article many years ago looking at this issue and he found nine different approaches to the choice of law nine different ways to get at it of which those three that i've mentioned are the most prominent i'd like to hear everyone's views on on this in just a moment but i thought we'd first do another poll based on a very quick scenario the scenario is this you have company a which is the head company of a group of companies that are engaged in uh industrial production and company a has a subsidiary company b uh which is the actual manufacturing subsidiary company a contracts uh sorry company b contracts with company c uh which is um a um the head of another group of companies that makes one of the ingredients in company b's product and that product is made by subsidiary d so you've got a and b and c and d where it's the sub of the one comp of one group of companies contracts with the parent company of the other group of companies to buy a product right now a disputerize oh sorry the the agreement calls for icc arbitration english law a paris seat and the closest connection is with venezuela right that's the scenario uh and a dispute arises between the a and b companies and the c and d companies and the a and b company companies a and b sue companies c and d in icc arbitration and the question is if you are on that tribunal would you find that there is jurisdiction with respect to the non-signatory claimant and would you find jurisdiction with respect to the non-signatory uh defendant i'll make it a little bit easier and say that you have found as a matter of fact that all four companies were involved in the negotiations of the contract in some way and all four of the companies were engaged in some way in making sure that the contract was performed all right let's pull up poll number two oxana if you would so the first question is with respect to the claimant the second is with respect to the respondent so based on the circumstances that noah just presented how would you decide multiple choice please everyone do vote hopefully everyone is able to vote we don't have very many who've voted yet there we go here we go we got 10 now yeah we got to get more you're not allowed to stay in this snow it said you're getting paid as an arbitrator and so you're forced to have to make a decision okay you got a few more seconds to make a decision otherwise the icc is going to dock your pay excellent very good keep voting keep voting those who haven't voted yet but let's just take a quick look at this very interesting first of all that there is a difference of opinion right on both the claimant and the respondent very interesting so it's not obvious and it's also interesting that more people thought that there should be jurisdiction over the claimant than over the respondent now as you may have recognized the case that i was describing was something like the dow chemical case uh from the early 1980s which was which has become in some ways the leading group of companies doctrine case now and i what i'd like to hear from people is why you voted the way you did but before that just one point about dow chemical that many people don't quite realize is that in dow chemical french law was not applied to the question as to whether there was an agreement to arbitrate with the the claimant non-signatory there was only a claimant non-signatory in that case and jurisdiction was upheld over the claimant non-signatory based on general principles of practice and law prominent in isis in the icc practice and the sense is that that tribunal and the paris court of appeal that came afterwards to affirm the award took the view that well if the parties agreed to the icc rules that should be the governing law with respect to the question of non-signatories so anyone out there want to tell us why you voted the way you did and it's interesting that again not the same people voted for uh in in it you know someone didn't just vote yes yes or no no any anyone want to offer their their views why they voted the way they did hi good evening everyone hi yes please who's that yeah this is judy from the philippines hi judy from the philippines yeah i voted um that the claim ads both in the secretary and non-signatory claimants would be um would be held by the jurisdiction would be bound by the jurisdiction and the non-signatory defendant would not be bound by the jurisdiction i voted that way because i um well as i would assume in my jurisdiction the claimant of course would necessarily have given consent by the fact that they filed the claim so the non-signatory by participating in the claim or in the complaint necessarily gives the consent with respect to the non-signatory defendant um i'm assuming that if the seat is paris um there would also be probably a separate legal personality they would consider paris law uh would consider the separate legal personality between c and d as parent and subsidiary um companies and that's the same um law here in the philippines that uh parent and subsidiaries would have separate legal personalities so no and also that would depend probably in the um in the language of the contract so if the the contract uh the arbitration contract says that it is simply the parent company that is found i would assume that it would be difficult um to bind subsidiary d as a defendant and also that would go into the issue of enforcement as well i think if they enforce it for example in venezuela the venezuelan courts would probably also consider whether there are there's a separate legal personality between c and d as um defendants thank thank you that was my analysis thank you very much and and uh you know it's interesting to think you know of course from the respondents uh the signatory respondents perspective he says but i didn't agree to be sued by that guy i didn't agree to be in in in an arbitral proceeding with that guy and having an award that's enforceable under the new york convention around the world from that guy that's that that's all i didn't sign with him yeah go ahead if if um if the arbitrator is fine that the that along the line that judy's in the philippines indicated that the claimant does has consented would would you find that the same consent would apply to a counter claim against them on liability under the contract i would have thought absolutely i have a little bit of trouble uh with the idea that you can ex show uh consent at the time of contracting uh by opportunistically suing much much later on when the dispute arises things are a little different i have a little trouble with that proposition but absolutely what's good for the goose is good for the gander and there's no way you could avoid a counter claim i think if you affirmatively go in and say i'm not a signatory but everyone consented that i should be uh that i should be a party are there more comments out there everyone agree what's next on our agenda patricia well just before we leave this let me ask you noah do you do you think that it is appropriate and you find in practice that even it's not even if it's not a legal standard that respondents being found is treated differently than claimants taking advantage of uh non-scientists it's an excellent question the answer is yes not necessarily for the reason not quite for the reason that judy uh pointed out in the united states there actually are cases that that go to the question the difference between claim and respond the difference is that for the for um the respondent the respondent is denying any participation in the contract whereas the claimant normally is sorry with respect to the claimant the respondent is normally saying um i accept that there's uh that there's obligations under the contract just not the arbitration clause so there's there's a bit of a difference in terms of accepting the whole kit and caboodle and accepting obligations of the contract the respondent is who is is a signatory where the respondent's signature respondent is saying yeah i'm i'm bound by the contract but i didn't agree that that guy should be able to sue me someone else may be able to sue me under the contract but not him whereas where it's reversed where the respondent is a non-signatory the respondent is then saying i'm not a party at all i shouldn't be sued under this contract at all so there is a i think there is a difference yeah and we can say just before we pass over to timor who's going to present a very interesting very recent russian case on this issue probably many of our participants are aware of the ge decision recently decided by the u.s supreme court which was a fairly narrow issue of whether or not the new york convention has room for the doctrine of equitable gestapo you referred it back to the circuit court to actually determine but in that case ge who simply put was a guarantor of certain obligations was in the claimant position trying to use the arbitration agreement to obstruct the litigation so we see this issue continuing to come up um without should we invite keemer to to share with us the russian case thank you patricia hello everyone uh yeah indeed uh there is a recent uh case by by moscow arbitrage court which is uh quite quite amazing from the point of view of russian uh court practice because uh you know uh there haven't been you know a single case uh before that when uh courts actually acknowledged uh jurisdiction with respect to non-segmentaries to uh to the arbitration agreement other than institutions of uh universal succession assignments uh and things like that so this is kind of really noble case what is troubling actually that it's kind of difficult to see any um you know any any any reasonable uh grounds for uh for such conclusions by the court of course i'm not impartial here because i represented uh the parties which were non-signatories and with well you didn't tell me that before i i did i did i sent you the judgment which mentions who represented so um yeah uh aksan can you please start the slides uh yes uh you can see here the number of the case uh the the ruling was uh entered into on the 21st of august and that ruling was to satisfy uh to dismiss an application to set aside an arbitral award so the proceedings uh were seated in russia applicable over german language of arbitration proceedings for the german the arbitral institution which administered the proceedings was a arbitration court at the moscow chamber of commerce and industry and from first of november 2017 when uh the russian arbitration reform took effect and and that institution no longer could could no longer administer proceedings the proceedings continued allegedly as ad hoc proceedings the tribunal consisted of uh mikhail savransky who was appointed by the institution and two german arbitrators ian sporten and michael schwartz uh who was appointed by the respondents and he dissented on jurisdiction and on the merits so the basis of the arbitration proceedings was an arbitration agreement which uh can uh which which was uh uh can which contained in in the settlement agreement uh dated 5th of march 2007 and the parties to the settlement agreement were uh alexander can you please move to the uh second slide please yes so the parties to the settlement agreement was that claimant a german individual who resides in moscow and his affiliated companies including llc gupta a russian company that was involved in production and distribution of juices and only one of the respondents was a party to the settlement agreement uh that company is uh to air have a formerly known s akkis granini ruslan holding so we call it signatory respondents so but there were also four other respondents in the arbitration proceedings three of them were companies of the akkas greninja which were either parent or sister companies of the signatory respondent and uh the three other respondents were german individuals two of them were directors of the signatory respondent and signed the settlement agreement on his behalf and the third one was the director of the signatory respondents russian subsidiary which was not correspondent in the arbitration and uh who signed the settlement agreement on his behalf uh on the next slide please so the arbitration clause contained in the settlement agreement and the settlement agreement uh resolved disputes relating to previous relations between the parties uh uh in with respect to production and distribution of jews in russia so the settlement agreement was performed in full and no claims were made in relation to it but the settlement agreement also provided that a new set of contracts was to govern further relations between the parties and these contracts were entered into on the same date as the settlement agreement we call it new conflicts so these new contracts were option agreement between the signatory respondent and an affiliate of the claimant with respect to shares in the russian subsidiary and there was a separate arbitration cause in that agreement which provided for a german institution for arbitration in germany three other agreements were related to production distribution and storage of jews were entered between signatory respondents russian subsidiary and llc guten and they provided for arbitration in the moscow chamber of commerce and industry and the claim actually relates to the new contracts the claimant alleges that the respondents uh by their allegedly tortured actions caused a breach of the new contracts which caused damage to llc guten and led to its bankruptcy in the award the tribunal applied german law to the arbitration agreement and also to the question of whether the non-signatories are bound by the arbitration agreement and this conclusion was based on a general clause in the agreement which provides which provided that german law is applicable uh to the relations of the parties so the tribunal concluded that this also meant that german law applied to the arbitration agreement and then the majority of the tribunal i.e mr savransky and mr porton accepted jurisdiction with respect to all seven respondents and ruled that the respondents must pay a compensation almost in full uh mr schwarz dissented so what are the conclusions uh of the court uh the the moscow arbitrage court which is the first instance court which uh hears applications for sitting aside of uh of such awards uh the court didn't disagree with the tribunal that german law is applicable to the non-signatory issue at the same time the court uh didn't verify many of the statements made in the award in support of the conclusion that the non-signatories were bound and in particular if you look at the judgment you can see that uh there are lots of quotes uh from the award in support of the conclusion that non-signatories are bound and those quotes also relate to uh you know refer to some documents which were only in german language which means that the court russian court can only examine documents which are in russian language so the fact that the court referred to the award and to the documents which were only in german means that the court didn't examine itself these documents but relied on the conclusions of the tribunal which uh clearly from from the russian point of view the court cannot do because in case there is a question about uh absence of a valid arbitration agreement uh russian court has a duty itself to examine whether there is a valid arbitration agreement so the court cannot say that well the tribunal has established that there is a valid arbitration agreement so i rely on this conclusion so it's also quite interesting that uh the main what what seems to be the main reason why the court uh accepted jurisdiction was a cause which you normally find in in settlement agreements it's it's basically that the parties to the settlement agreement uh uh uh are responsible like like in this case each party to this agreement is responsible for ensuring that its affiliates do not assert any claims in connection with the circumstances and business relations referred to in this agreement so normally when parties enter into a settlement agreement then they are interested in excluding any possible claims with respect to these relations including by officers affiliates and other uh possibly relevant parties so uh such a clause was also included in the settlement agreement but the conclusion which the tribunal and the court made was that all these affiliates which are referred in this course are also bound by arbitration rules yeah team order this is just so strange in a sense to me uh to me this clause suggests exactly the opposite i'm sure you're going to say yeah well i agree with you because it was my position but uh i mean a lot of times what you're looking at is clauses the tribunals will be looking at uh clauses that suggest that the contract can't be performed unless a non-significant non-signatory is doing the performing right but that's not this clause i mean whether or not that's right that's another issue but this clause suggests the opposite because it's a procurement obligation the signatories carry a liability to make sure that a third party does something it's not that the third party has to do something right isn't that isn't that absolutely that's only underlines that the other parties are not parties to the agreement right right otherwise there would not be an obligation on the on the signatory um so um thank you for this comment now um let me let me see do any of our excuse me do any of our participants have any comments that they react to perhaps particularly those of you who are familiar with russian jurisprudence in the way in which the courts deal with these kinds of issues i i would like to uh to give you a short comment being a german lawyer and from the perspective of german law um it is very surprising for me and i heard that in the united states there is a doctrine of a manifest disregard of law and being a german lawyer i would i i'm li i like this victory now and just saying this this decision of the of the tribunal is from my perspective the manifest disregard of german law because um it is it is fairly impossible uh to draw this conclusion uh this reasoning you might come to this conclusion but uh you need to to use another reasoning you must establish a close connection of the subsidiaries or you must establish somehow or representation of the subsidiaries by the holding company but not just using this clause in the settlement agreement do you mean to um felix do you mean that you would have to establish under german law and a a formal agency or a as a matter of law that that that one party is the agent to the other or it's something looser than that uh you have to you have to establish actually have to establish an agency and the german law is quite restrictive and it's uh the recent uh rare decisions uh which for example uh make a managing director of a company bound by the um agreement signed uh signed uh by him uh in uh um for the company but at least he was the person uh who were acting and who set his uh signature under the agreement but um there is no way to uh uh to apply any other other principles um let alone this provisioning agreement if we if we take a look at um this issue then as noah pointed out earlier these kinds of cases involving non-signatories are always very intensely fact-based and so you have to come with evidence to show how you have are able to meet your burden of proof that the particular theory applies so when the tribunal is deciding on the fact-finding and then also applying the legal theory which goes into the merits decision although it's but it's jurisdictional so we have this conflict between fact-finding and application of the law but in the jurisdictional context so it seems femur that the deference given to the arbitrators by the court in terms of their fact finding their law application and the conclusions they reached was quite great um do you think that's that's kind of the approach of the swiss courts maybe we have a swiss participants we have some reasons with slower the swiss court doesn't seem to want to engage in the fact-finding decisions of the tribunal what do you think team or should they be you mentioned that the russian court has a obligation to determine that there is a ballot applicable arbitration agreement yes uh patricia absolutely if if there is a question that the there is no arbitration agreement or the arbitration agreement is not valid then the russian court has to examine this issue and has to make its own conclusions with respect to whether there is in existence an arbitration agreement because uh and there are numerous clarifications by supreme russian uh court authorities uh stating that the court shall do this but can we move maybe to the next slide because there are also many other interesting um suggestions by the courts so so in other basis basis for for jurisdiction with respect to small signatories were that they were all involved in torturous actions which allegedly took place after the settlement agreement was concluded and that were closely connected with the settlement agreement so the tribunal and the court included that because they were allegedly closely connected with the settlement agreement all those who participated in this allegedly torturous actions were also bound by the arbitration clause in the settlement agreement again that's super weird because i mean in in a lot of jurisdictions you will have this focus on who participated in the performance of the contract and who participated in the termination of the contract but whether they whether non-signatories participated in tortious actions that is in non-contractual non-contractual breaches but breaches of general civil law how is that possibly relevant to the question as to whether the party's consent non-signatories consented to be bound very strange to understand that uh so next one is is also quite funny so the directors so so so kind of three of the non-signatories were directors so that the court said i i agree that there is jurisdictional aspect of their exit because when they signed the settlement agreement they knew the content of the settlement room so they signed something the concept of which they were aware of and therefore they are bound by the arbitration clause uh so this i i i i can't understand the logic uh completely because uh it was it was quite quite clear in the settlement agreement that they signed on behalf of the companies not on their own behalf uh so next one is that the directors who signed the settlement agreement were also directors of other uh responding companies so therefore they signed not only on their own behalf but also on behalf of other respondent companies affiliates which is also quite strange because when they sign they sign in a specific capacity so the fact that a person is a director in 10 companies does not mean that if he signs on behalf of one of the companies he signs on behalf of 10 other companies next next next ground was that the respondents participated in the proceedings and therefore they accepted jurisdiction which is uh you know completely nonsense because it's well uh accepted uh generally accepted that if you participate but you make objections to jurisdiction then you do not accept jurisdiction uh and on the next slide you can see the the the two other uh quite interesting statements so we made uh uh so we requested actually the arbitration file which was provided to the court and we have not found uh german translations of most of the submissions of the parties that were made only in german and evidence that was made in june but the chairman of the tribunal mr swaronski doesn't speak german so we had a question how the chairman could decide on this case uh uh because it was made by the majority where when when he couldn't understand what uh what the parties were uh arguing and uh he couldn't read the evidence um and finally and maybe this is the one which explains everything the court said that the claimant is in bankruptcy and the bankruptcy was initiated by the managing partner of the law firm that represented this claimant in arbitration uh so the fact that the claimant is in bankruptcy means that the set and aside proceedings with respect to the award have a public character and is a factor against settings either award and uh by the way in the bankruptcy proceedings the claimant said that this law firm is entitled to 40 percent of the proceeds from their work so the fact that the word found that this has some kind of public character and because of this the word cannot be set aside is quite troubling um so um it says the slice has to be continued because we filed a cassation appeal and i hope that we will come to uh you know fair resolution of this case uh in the next couple of months great i think this might be a good opportunity to throw the next poll up and see what all of our participants think should be the applicable law so again you're going to have a poll coming up and see do you think that that should be the law of the contract should it be the law of the arbitration agreement should be the law of the seat and when it comes to enforcement should that be a separate law or should it be both the law of the seat and enforcement so we've got a few people who have now voted seems to be a close race between the launch of the arbitration agreement merits books arbitration agreements taking the lead that's a good swedish approach huh lord the seat is slightly ahead of the law of the merits let's get a few more votes in no one seems to think that the enforcement court should apply its own law great well what do you think uh noah uh they didn't i didn't put on the slide whether or not it should be the law of the icc yeah i definitely wouldn't recommend the law of the icc whatever that might be i mean i do think there's some logic uh to the law applicable to the arbitration agreement i've always thought that it's a bit odd uh if you're looking at it purely contractually and you're saying like you know the part i want to know what the party's intended to choose because there's other ways to get at it right which i'll come on to in a minute but if that's what you're trying to get at that unless uh there's some evidence that the parties thought of some other law it should be the law of the arbitration agreement sorry the law um of the the general law of the contract the law applicable to the merits right because uh after all normally it will say this this agreement is governed by german law for example well if this well the arbitration clause is part of this agreement and the parties could have said this agreement except for the arbitration clause is governed by german law they didn't write that so why wouldn't you assume not assume conclude based on the evidence available that it is the law applicable to the merits there's a different question which is the non-signatory as i said we'll always be arguing i didn't agree to anything in this agreement so how can you bind me to that and there the the law that has the closest relationship to the to the facts uh should be the one to determine if that if you believe that's the way to approach the question well you're swimming against the tide of the pool i love swimming against the tide but but the law applicable to the arbitration agreement i'm simply saying i mean that seems to be obvious but that's almost always going to be the law applicable to the merits but we're getting close to unfortunately to our end time we have so many issues we haven't discussed so let me just go out to timor and to and then to noah to quickly um pick up on one important point and that is do you think timor and then noah that the analysis that we're engaging in on this non-signatory issue needs to be adjusted when it is a state or a state-owned entity which is the non-signatory well thanks patricia i think i think it's a it's a very good uh question uh well i i basically my my my view is that you know the general rules shall be applicable and uh you know there is no reason to make any exceptions just because the state is one of the parties noah i think that's right when when state entities whether it be a subdivision of the state or a state-owned company uh in science concludes a contract it's engaging in a commercial activity um and it's sort of stepping down into the role of a commercial party and therefore there's no obvious reason why a state should be treated any differently the interesting thing is when you look at particular state contracts very often there are more complicated evidentiary issues about consent that arise and that's why often it looks like they're being treated differently uh the leading case um that that people have been discussing for years now is a case i was uh peripherally involved in which is the turkmenistan breedus cases um there are two arbitration awards in parallel kaneer and yashlar having to do with gas concession agreements in turkmenistan and there the two tribunals looking at different contracts but parallel contracts with very similar situations and very similar provisions came to opposite conclusions about whether the state was bound and interestingly enough one of the differences was the yahshua tribunal was in seated in sweden uh and the kmir tribunal was seated in houston texas uh and it was uh the uh so the um uh the yash lar the swedish tribunal found that there was no jurisdiction uh over the state the signatory was a state-owned company turkmen neph uh and the um the the houston seated tribunal found that there was jurisdiction over the state for the reason that there were obligations uh in the contract that said the tribunal only the state could fulfill particularly the issuance of certain permits that was that that award was then annulled and went up and down in the u.s courts until it was found that turkmen neft was actually an alt alter ego uh for tickermanistan and that the decision was upheld but there was precisely this question as to whether uh in a state contract even if it's a state company or a subdivision of the state whether only the state as a whole can perform certain obligations under the contract yeah and i guess this all goes back to um at the time of contracting it's much better to try to anticipate these issues and to argue about them through the courts which can be a long process um we've reached the end of our of our time but um i would like to if anyone needs to leave they can leave i would like to launch our very last poll and invite anyone who would like to make a couple of comments um before we actually uh depart so let's take the fourth poll and that is do you think that these issues need to be harmonized and if you don't think they need to that's your last choice um if you do think there should be some unification then you could should it be through international conventions or instruments through national legislation through soft law or should this be part of standard contract terms that we just need to do better contracting and quit trying to patch up the bad contracting with these different doctrines so we're kidding it seems that not many think there shouldn't be some harmonization soft law does not seem to be so popular so what do you think team are these results what you would anticipate or do they surprise you well uh it's it's it's quite surprising basically because i think you know this is a purely contractual kind of question so you apply you know international private law and you determine which um uh what what is the governing law and then basically on the basis of this governing law you decide whether there is a contract or not so from my point of view uh the most appropriate way would be to you know differ as as it is done now this this question to to the applicable uh national law i i think i think it would be helpful if if national governments uh if countries would adopt legislation or modify uh conflict of laws there's private international law uh to specifically address the question of the law applicable to a non-signatory to an arbitration clause i think that would be helpful um otherwise because the whole point is not to bind more or less signatories but have more clarity as to whether a non-signatory will or will not be bound um for predictability's sake and that can be done two ways one is you make sure that in every contract you say nobody is a part of this contract but the parties let the signatories and anybody who thinks otherwise is wrong and you make sure you're absolutely clear the other way and it's a complementary way is to make sure that everybody knows when they're contracting what system of law they're buying into uh with respect to that key issue and for now that is definitely not obvious so i guess what we need to do is to always uh keep our eye on the choice of law issue and also what facts we have um i think we could sit around and discuss this all afternoon but unfortunately we were supposed to have ended uh four or five minutes ago so um unless someone in our participants would like to to to make an intervention or a comment or a question i think noah teamer and i at least could be here to uh if anyone would like to make a comment before we exit the meeting anyone any of our participants want to make a final comment or a question no well with that um thank to all of you for coming to the uh to the session today i wish we would have more time and that we could have heard more of your opinions on these issues and your experience teamwork thank you very much for taking your time to share that russian case and your thoughts with us and noah thank you also for taking your time to share your insights and thank you patricia for a a wonderful moderation job as usual thank you patricia thanks and thank you to uh glenn and to uh to everyone at the aba and to the raa for arranging this so with that should we leave yep goodbye everyone thank you