Third Parties in Arbitration: For the Sake of Fairness

The role of third parties remains one of the most controversial topics in commercial arbitration. Whilst the fundamentally contractual nature of arbitration typically dictates the exclusion of third parties, numerous theories have been developed to enable third-party involvement in arbitration. However, the significant practical implications of third parties highlight the desirability for a more coherent regime to address this issue. Appreciating the diverse legal cultures across different jurisdictions, this paper does not attempt to propose a unifying theory for universal adoption. Instead, it aims to establish a guiding principle that provides doctrinal underpinning for all theories whilst allowing liberty and flexibility for their specific applications. After having critically examined the rationales behind several prominent theories, it is this paper’s central submission that the notion of fairness should serve as the overarching guiding principle for all theories. Given the primacy of party autonomy in arbitration, joinder of third parties should only be permitted when it aligns with the goal of promoting fairness. Accordingly, it is argued that theories not fitting within this fairness-oriented framework should be eradicated.