As global commercial transactions become increasingly complex, the parties that formally sign a contract may not always be the same entities that negotiate, perform or benefit from it. In some cross-border transactions, an affiliate, agent or assignee may become involved in the contractual relationship without being named as a signatory and may nevertheless be considered bound by the arbitration agreement.
This gives rise to an important legal question: can, and should, a non-signatory be bound by an arbitration agreement?
I. Functional Expansion of Arbitration Agreements under the New York Convention
Article II of the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) provides:
Each Contracting State shall recognise an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.
The term “agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement signed by the parties or contained in an exchange of letters or telegrams.
On a strict reading, Article II appears to confine the binding effect of an arbitration agreement to parties that have either signed it or recorded their agreement through an exchange of communications.
As international transactions have become more structurally complex, however, strict formalism has increasingly proved inadequate. In some cases, a non-signatory may rely upon the absence of its signature to avoid arbitration despite having substantially participated in, performed or benefited from the underlying transaction. Courts and arbitral tribunals have therefore developed several legal doctrines under which an arbitration agreement may, in defined circumstances, extend to a non-signatory.
1. Equitable estoppel
Equitable estoppel originates in the Anglo-American law of equity and seeks to prevent a party from obtaining an unfair advantage through inconsistent conduct or representations.
In the arbitration context, a non-signatory may be estopped from denying an arbitration agreement where its conduct demonstrates acceptance of the contractual arrangement—for example, where it actively participated in negotiations, performed contractual obligations, directly benefited from the contract or failed to raise a timely objection after becoming involved in the arbitration.
2. Implied consent
The doctrine of implied consent recognises that agreement to arbitrate need not always be manifested through a formal signature.
Where a non-signatory continuously and actively participates in the negotiation, performance or management of a contract, and its conduct reasonably leads the counterparty to believe that it accepts the contractual arrangement as a whole, consent to the arbitration agreement may be inferred from that conduct. This approach is particularly evident in the jurisprudence of certain civil-law jurisdictions, including France and Switzerland.
3. Group of companies doctrine
Developed principally through French arbitration practice, the group of companies doctrine focuses on the economic reality of transactions involving corporate groups.
Where a non-signatory affiliate has played a substantial role in negotiating, performing or terminating a contract, and the contract was concluded for the economic benefit of the corporate group as a whole, the arbitration agreement may, in certain circumstances, be extended to that affiliate.
The doctrine does not rest solely on common ownership or control. It examines the affiliate’s actual involvement in the transaction and the parties’ objectively ascertainable intentions.
4. Agency and representation
Where a principal–agent relationship, apparent authority or another legally recognised form of representation exists, an arbitration agreement entered into by an agent may bind a principal that did not directly sign the contract.
This approach is accepted in both common-law and civil-law jurisdictions and generally represents an application of ordinary contract and agency principles in the arbitration context.
5. Third-party beneficiary
Under the third-party beneficiary doctrine, a non-signatory may acquire rights under a contract if the contracting parties intended to confer a direct benefit upon it.
Where a third party invokes substantive rights arising from the contract, it may, in appropriate circumstances, also be required to comply with the contract’s arbitration clause.
6. Assignment, succession and transfer of contractual rights and obligations
Where contractual rights or obligations are assigned, inherited or transferred through a merger, corporate division or another form of legal succession, the arbitration agreement will commonly pass with the substantive legal relationship and bind the successor.
This represents one of the more widely accepted bases for extending an arbitration agreement beyond its original signatories.
7. Good faith and prohibition of abuse of rights
Some courts and tribunals have relied on good faith or the prohibition of abuse of rights where a non-signatory seeks to claim the benefits of a contract while simultaneously denying the applicability of its arbitration clause.
This approach prevents a party from selectively relying on the provisions of a contract, accepting its substantive benefits while rejecting its agreed dispute-resolution mechanism.
II. Comparative Approaches
1. France: an open approach based on economic reality and substantive consent
Among civil-law jurisdictions, France has adopted one of the most permissive and influential approaches to the extension of arbitration agreements.
French law has long recognised the autonomy of the arbitration agreement and has developed the group of companies doctrine within that framework. Under this doctrine, where several companies operate as a single economic unit and a non-signatory plays a substantial role in negotiating, performing or terminating the contract, that entity may be treated as a party to the arbitration agreement if the circumstances demonstrate a common intention to resolve disputes through arbitration.
The doctrine was famously applied in the ICC arbitration known as Dow Chemical v. Isover Saint-Gobain and subsequently received support from the French courts.
Rather than treating the absence of a formal signature as decisive, French law focuses on substantive consent and the commercial reality of the transaction. Arbitral tribunals are consequently afforded considerable latitude in determining the personal scope of an arbitration agreement.
2. United States: functional extension through contract and equitable principles
In the United States, the question of whether an arbitration agreement binds a non-signatory is generally addressed through established principles of state contract law and equity.
In Arthur Andersen LLP v. Carlisle, the US Supreme Court held that the Federal Arbitration Act does not prevent a non-signatory from enforcing, or being bound by, an arbitration agreement where applicable state law recognises such a result under ordinary principles of contract law.
The principal doctrines applied by US courts include:
- equitable estoppel, particularly direct-benefits estoppel and the “intertwined claims” doctrine;
- agency;
- third-party beneficiary status; and
- in exceptional cases, alter ego or piercing of the corporate veil.
In MS Dealer Service Corp. v. Franklin, the Eleventh Circuit held that a non-signatory could invoke an arbitration clause where the claims against it were closely intertwined with the contract and the relevant party had received direct benefits from the contractual relationship.
By contrast, the Second Circuit adopted a more cautious approach in Thomson-CSF, S.A. v. American Arbitration Association. It rejected the proposition that corporate affiliation or economic reality alone could justify extending an arbitration agreement, emphasising that any such extension must remain anchored in recognised principles of contract law.
3. England: limited extension under a strict contractual approach
English law also rejects the French version of the group of companies doctrine. Its approach is, however, generally more restrictive than that adopted by many US courts.
English courts consistently emphasise the contractual foundation of arbitration: arbitration is a matter of consent and should not be imposed on a person that has not legally agreed to it.
The principal bases on which English law may recognise a non-signatory as bound include:
- agency;
- assignment or novation; and
- limited situations governed by the Contracts (Rights of Third Parties) Act 1999.
In Peterson Farms Inc. v. C&M Farming Ltd, the English court expressly rejected the group of companies doctrine on the ground that it had no basis in English contract law.
In Dallah Real Estate and Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan, the UK Supreme Court further emphasised that even substantial involvement by a state entity in a transaction could not substitute for proof of legally effective consent to arbitration.
English law therefore maintains a cautious and strongly consent-based approach.
4. Switzerland: a balanced approach based on inferred consent
The Swiss approach lies between the comparatively expansive French position and the more restrictive English approach.
The Swiss Federal Supreme Court has not recognised the group of companies doctrine as an independently applicable rule. It has nevertheless accepted that consent to arbitration may, in certain circumstances, be inferred from a non-signatory’s conduct.
In Decision 4A_646/2018, rendered in 2019 in a dispute between a Swiss company and a Slovenian company, the Swiss Federal Supreme Court considered whether an arbitration agreement could extend to a non-signatory affiliate.
Although the affiliate had not formally signed the relevant contract, it had continuously participated in its performance, undertaken contractual obligations and obtained direct economic benefits from the relationship. The court concluded that where a non-signatory’s conduct clearly demonstrates acceptance of the overall contractual arrangement—including its dispute-resolution mechanism—consent to arbitration may be inferred.
Under this approach, extending the arbitration agreement does not necessarily violate the writing requirement in Article II of the New York Convention. Consent need not be demonstrated exclusively through a signature and may, in appropriate circumstances, be confirmed through conduct.
Swiss law thus seeks to balance party autonomy and formal certainty against reliance interests and the realities of contractual performance.
III. Chinese Arbitration Legislation and Judicial Practice
1. Statutory rules and judicial interpretations
Both the former Arbitration Law, as amended in 2017, and the revised Arbitration Law adopted in 2025 proceed from the premise that arbitration is founded on an agreement between the parties.
Article 27(3) of the revised Arbitration Law introduces a limited mechanism for recognising an arbitration agreement through procedural acquiescence. Where one party asserts the existence of an arbitration agreement in its request for arbitration and the other party does not deny its existence before the first hearing, an arbitration agreement may be deemed to exist after the tribunal has expressly drawn the parties’ attention to the issue and recorded the matter.
This provision relaxes the formal requirements for establishing consent in a defined procedural setting, but does not establish a general doctrine under which arbitration agreements automatically extend to non-signatories.
The Judicial Interpretation of the Supreme People’s Court on Certain Issues concerning the Application of the Arbitration Law, as amended in 2008 (the “2008 Arbitration Law Interpretation”), identifies several circumstances in which an arbitration agreement may bind a person that did not originally sign it.
Article 8 provides that, following a merger or division, an arbitration agreement remains effective against the successor to the relevant rights and obligations. Where an individual party dies after entering into an arbitration agreement, the agreement binds the person who inherits the relevant rights and obligations.
Article 9 further provides that, where all or part of a claim or debt is transferred, the arbitration agreement binds the transferee unless:
- the parties have agreed otherwise;
- the transferee expressly objects when accepting the transfer; or
- the transferee was unaware of a separately concluded arbitration agreement.
Chinese law also identifies circumstances in which an arbitration agreement does not extend to a third party.
Article 36 of the 2023 Judicial Interpretation of the Supreme People’s Court on the General Provisions of the Contract Part of the Civil Code provides that, after a creditor brings a subrogation action, neither the debtor nor the counterparty may challenge the court’s jurisdiction merely because an arbitration agreement exists between them. If the debtor or counterparty commences arbitration concerning their underlying legal relationship before the first hearing, however, the court may stay the subrogation proceedings.
A subrogating creditor is therefore not automatically bound by an arbitration agreement between the debtor and the counterparty.
Article 21 of the 2020 Judicial Interpretation of the Supreme People’s Court on the Security System under the Civil Code provides that, where either a principal contract or a security contract contains an arbitration clause, the court lacks jurisdiction only over disputes between the parties to the contract containing that clause.
Accordingly, if the principal contract and the security contract contain different dispute-resolution arrangements, the arbitration clause in one contract does not automatically extend to a non-signatory to that contract.
This reasoning was applied in （2022）京74民特13号, China Oceanwide v. Guo. The guarantor, China Oceanwide, had signed only a letter of guarantee and was not a signatory to the underlying fund contract. The court held that the arbitration clause in the fund contract did not extend to the separate guarantee or bind the guarantor.
Paragraph 98 of the Minutes of the National Courts’ Civil and Commercial Trial Work Conference—the “Ninth Civil and Commercial Trial Conference Minutes”—addresses insurance subrogation.
It provides that an arbitration agreement concluded between an insured party and a third party before the insured event will generally bind an insurer exercising subrogated recovery rights. Insurance subrogation is treated as a form of statutory assignment: after indemnifying the insured, the insurer succeeds to the insured’s claim against the third party.
The Minutes expressly exclude foreign-related civil and commercial disputes from this general approach because such cases may involve international treaties and practices.
In （2019）最高法民申236号, a dispute between PICC and Harbin Electric concerning insurance subrogation, the Supreme People’s Court held that PICC knew of the arbitration agreement between Harbin Electric and the relevant third party and was bound by it.
By contrast, in （2024）粤0391民初9412号, the court found that the dispute was foreign-related because the defendant was a company incorporated in the Republic of Korea. More importantly, the insurer’s subrogated claim arose from transportation activities that did not fall within the scope of the arbitration clause in the underlying sale contract. The insurer was therefore not bound by that clause.
2. Chinese cases concerning non-signatories
Chinese judicial decisions involving non-signatories can be broadly grouped into cases concerning agency, assumption of debt, third-party beneficiaries, shareholder derivative actions and claims by actual constructors in construction disputes.
The decisions do not reflect a single expansive doctrine. Instead, Chinese courts generally examine whether a recognised legal relationship or sufficiently clear manifestation of consent justifies binding the non-signatory.
2.1 Agency
In （2020）京04民特570号, Ivatherm v. Xiashi, the court examined the parties’ communications during negotiation and their conduct in performing a distribution agreement. Applying the rules governing undisclosed agency, the court held that the arbitration clause extended to Xiashi, the undisclosed principal.
In （2020）京04民特432号, Jiufu v. Microsoft, Jiufu argued that it had not authorised an employee to enter electronically into a licence agreement containing an arbitration clause. The court found that the employee’s electronic execution of the agreement constituted apparent authority. The arbitration clause therefore bound Jiufu.
The court reached a different conclusion in （2022）京04民特662号, Sinaike v. Slack & Parr Ltd. Sinaike argued that, because of its agency relationship with Wells, it was entitled to rely on an arbitration clause in a contract between Wells and Slack & Parr.
The court rejected this argument. It held that the substantive-law rules governing circumstances in which a principal may acquire contractual rights and obligations under a contract concluded by an agent in the agent’s own name were distinct from the rules governing consent to arbitration. Because the arbitration clause was legally separable, it did not automatically extend to Sinaike through the agency relationship.
（2017）湘01民特45号, Che v. Herong Investment, concerned unauthorised representation. The court adopted a strict approach, holding that authority to consent to arbitration on another person’s behalf must be express and cannot simply be inferred or established through apparent authority. The evidence was insufficient to show that Che had expressly authorised his sister to consent to arbitration on his behalf.
The case illustrates the judicial view that an arbitration agreement is sufficiently distinct from the underlying substantive arrangement to require clear and specific authority.
2.2 Assumption of debt
In （2025）粤01民特606号, Chen Company and Luoyang Wan Company had entered into a vehicle sales contract providing for arbitration before the Guangzhou Arbitration Commission.
Luo later issued a letter to Chen Company expressly undertaking to pay the outstanding sums and bear liability for breach of the sales contract. The court characterised Luo’s undertaking as an assumption of debt. It considered that Luo not only knew the contents of the underlying contract but had agreed to accept its terms, including its arbitration clause.
The court therefore confirmed that the arbitration agreement also bound Luo.
2.3 Third-party beneficiaries
In （2016）粤03民终17219号, Longgang Company performed certain obligations and indirectly benefited from an agreement between Ye and Shenzhen Vienna Company, although it had not signed that agreement.
The court characterised Longgang Company as a third-party beneficiary. It nevertheless held that Longgang Company had not directly succeeded to the contractual rights and obligations and therefore lacked an independent right of action. The dispute had to be pursued by Ye through arbitration in accordance with the arbitration clause in the underlying agreement.
This decision demonstrates that the treatment of a third-party beneficiary does not always involve simply “extending” the arbitration agreement. A court may instead find that the third party lacks an independent substantive claim in the first place.
2.4 Shareholder derivative actions
In （2023）粤01民辖终1851号, Longrui Company argued that Xu had brought proceedings derivatively on behalf of a company and that the asserted rights arose from an agreement between that company and a third party containing an arbitration clause.
The Guangzhou Intermediate People’s Court accepted this argument. It held that a shareholder derivative action substantively involved the exercise of the company’s rights, with the procedural and economic interests belonging to the company. The shareholder was therefore bound by the arbitration agreement between the company and the third party. The court set aside the first-instance ruling and dismissed the action.
A different conclusion was reached by the Supreme People’s Court in （2021）最高法民再293号.
In that case, Taicang Senmao Company, acting as a shareholder, sought a declaration that a share transfer agreement between Jiangyin Senmao Company and Yuejiang Company was invalid. It also sought the return of the shares or, alternatively, compensation.
The first-instance court held that Taicang Senmao was not a signatory to the agreement and that the courts therefore had jurisdiction. The appellate court characterised the action as a shareholder derivative action and found it subject to the arbitration clause in the share transfer agreement. It considered that the contract remained the principal basis of the claim even though Taicang Senmao sought to characterise the dispute as a tort claim.
The Supreme People’s Court ultimately held that Taicang Senmao and several other defendants were not parties to the arbitration clause. Given that the relief sought consisted of a declaration of invalidity, restitution of the shares and, if restitution were impossible, damages, the dispute was not bound by the arbitration clause and could be heard by the courts.
The different approaches taken at the three levels of adjudication demonstrate the importance of the claimant’s legal basis and formulation of relief. The Supreme People’s Court’s reasoning suggests that where a shareholder advances an independent claim based on infringement rather than enforcing contractual rights on behalf of the company, the shareholder may not necessarily be bound by the company’s arbitration agreement.
2.5 Claims by actual constructors
Under Article 43 of the former Judicial Interpretation of the Supreme People’s Court on Construction Contract Disputes, an actual constructor could, in certain circumstances, make a direct claim against the project owner despite lacking a direct contractual relationship with it.
This raised a related jurisdictional question: where the contract between the project owner and the contractor contained an arbitration clause, did that clause also bind the actual constructor?
Chinese courts have reached different conclusions depending on the actual constructor’s involvement in, and knowledge of, the relevant contract.
In （2020）最高法民申4893号, the Supreme People’s Court held that the arbitration clause in the agreement between Huatai Company and Zhongtai Company was valid. Li had signed the relevant agreement in Zhongtai Company’s name at Huatai Company’s request and was aware that the agreement contained an arbitration clause.
Li subsequently brought court proceedings against both the project owner and an intermediate contractor. The Supreme People’s Court held that doing so was inconsistent with the prior agreement to resolve the dispute through arbitration.
By contrast, in （2021）最高法民申7953号, the Supreme People’s Court held that He was not a signatory to either of the two underlying build–transfer contracts containing arbitration clauses. He had not participated in their negotiation or execution and based his claim instead on a separate construction agreement concluded later with another company.
The court therefore held that He was not bound by the arbitration clauses in the underlying build–transfer contracts.
The principal distinction between these cases lies in the non-signatory’s actual participation and knowledge. In the former case, the actual constructor had signed the contract in another company’s name and knew of the arbitration clause. In the latter, the actual constructor neither participated in negotiating the relevant contracts nor signed them and relied on a separate agreement as the basis of the claim.
It should also be noted that China’s construction-law framework has since been revised. Under the Supreme People’s Court’s 2026 Judicial Interpretation on Construction Contract Disputes, a party accepting an illegal subcontract or transfer may no longer generally claim payment or damages directly from a project owner with whom it has no contractual relationship. It may, however, seek relief through the rules on creditor subrogation where the statutory conditions are satisfied. This further reinforces the importance of identifying the correct contractual chain and legal basis of the claim.
IV. Procedural Feasibility of Extending an Arbitration Agreement
The substantive possibility of binding a non-signatory does not necessarily mean that doing so will be procedurally straightforward.
In practice, the issue may be examined in stages by the arbitral institution, the arbitral tribunal and the competent court under the applicable arbitration rules, arbitration law and procedural law.
Institutional arbitration rules provide a degree of procedural flexibility.
The ICC Arbitration Rules 2026, which entered into force on 1 June 2026, define a “party” as including a claimant, respondent or additional party. Article 5 governs the Request for Arbitration, Article 7 addresses the effect of the arbitration agreement, and Article 8 provides for the joinder of additional parties. These provisions do not categorically exclude a non-signatory from participating in an arbitration.
Under Article 7, where an objection is raised concerning the existence, validity or scope of the arbitration agreement, the arbitration may proceed if the ICC Court is prima facie satisfied that an arbitration agreement under the Rules may exist. The arbitral tribunal retains the authority to make the ultimate determination concerning its own jurisdiction. Similarly, a decision to join an additional party under Article 8 is without prejudice to the tribunal’s subsequent jurisdictional determination.
The 2026 Rules also expressly allow emergency arbitrator proceedings to be initiated against a non-signatory where the President of the ICC International Court of Arbitration is satisfied, based on the application, that an arbitration agreement binding that party may exist. This is only a prima facie procedural determination and does not finally establish jurisdiction. Appendix IV also permits preliminary orders, including, where necessary, orders made without prior notice to prevent the purpose of the emergency application from being frustrated. These developments expand access to effective emergency relief while preserving the arbitral tribunal’s authority to determine whether the non-signatory is ultimately bound by the arbitration agreement.
The rules of major Chinese arbitral institutions similarly do not expressly prohibit a non-signatory from participating as a party. In practice, however, Chinese institutions generally conduct a careful prima facie examination of the parties to the arbitration agreement, and an application for joinder must meet a defined evidentiary threshold.
Article 5 of the CIETAC Arbitration Rules 2024 requires an arbitration agreement to be in writing. Written form includes a contract, letter, telegram, telex, fax, electronic data interchange, email or another form capable of tangibly recording its contents. Where the law applicable to the arbitration agreement contains different requirements concerning its form or validity, that law applies.
Article 18 permits a party to apply for the joinder of an additional party based on an arbitration agreement that prima facie binds that party. CIETAC may refuse joinder where the arbitration agreement does not appear to bind the proposed additional party or where other circumstances make joinder inappropriate.
Accordingly, a claimant may attempt to establish at the commencement of arbitration that an arbitration agreement extends to a non-signatory. Any jurisdictional objection may then be determined by the institution, tribunal or competent court, depending on the applicable rules and the procedural choices made by the parties.
A party seeking to join a non-signatory should:
- clearly identify the non-signatory and its role in the transaction;
- submit evidence of its participation in negotiations or contractual performance;
- establish whether it received payments or other direct benefits;
- provide evidence of its external representations concerning the contract;
- identify the applicable legal doctrine supporting extension; and
- expressly address the personal scope of the arbitration agreement in the request for arbitration and supporting submissions.
A party resisting joinder may challenge the tribunal’s jurisdiction during the arbitration. In a cross-border case, it may also consider whether the enforcement jurisdiction adopts a narrower approach to non-signatories and, where appropriate, rely on Article V of the New York Convention in opposing recognition or enforcement.
This procedural dimension is particularly important in cross-border disputes. A tribunal’s conclusion that a non-signatory is bound does not necessarily guarantee that the resulting award will be recognised in every relevant jurisdiction.
V. Conclusion
The tension between the written-agreement requirement in Article II of the New York Convention and the realities of complex commercial transactions has led courts and arbitral tribunals to adopt a range of doctrines concerning non-signatories.
French law focuses comparatively heavily on substantive consent and economic reality. US law applies recognised principles of contract and equity. English law adheres to a stricter contractual approach, while Swiss law has developed a more balanced analysis based on inferred consent.
Chinese judicial practice remains cautious. Whether the case concerns agency, assignment, insurance subrogation, assumption of debt, shareholder derivative litigation or construction disputes, Chinese courts generally require a recognised legal relationship or a sufficiently clear manifestation of consent before extending an arbitration agreement beyond its signatories. They have not embraced the proposition that corporate affiliation or economic reality alone is sufficient.
For companies and their legal advisers, this approach carries two implications. An arbitration clause cannot always be avoided merely because a particular participant did not formally sign the contract. At the same time, arbitration obligations will not ordinarily spread without limit across a transaction or corporate group.
Effective risk management therefore begins before a dispute arises. The identity of the contracting parties, the entities responsible for performance, the flow of payments and benefits, and the scope of the dispute-resolution mechanism should be aligned when the transaction is structured and documented.
The central question is not simply who signed the document. It is whether the applicable law, the parties’ conduct and the structure of the legal relationship establish legally sufficient consent to arbitrate.