I. INTRODUCTION

Contrary to litigation before state courts, arbitration is a private dispute resolution mechanism and has to be agreed upon by the parties. Where a person has not submitted to arbitration, either by means of an arbitration clause in a main contract or a separate arbitration agreement, he generally has a right to seek recourse before the state courts; in many countries, access to the courts is granted as a constitutional or human right.1 Accordingly, it comes as no surprise that the “extension” of arbitration agreements from a contractual party to third parties, e.g., to its affiliated companies or controlling shareholders, has become a crucial issue in arbitral practice. Can such third parties rely on the lack of consent to arbitration or may the need for effective dispute resolution justify sacrificing the strict requirement of (real) consent? If so, in which circumstances might this be warranted? Diverging arbitral awards and court decisions from various jurisdictions recently re-ignited this important debate.2 The present article will address these recent developments and seek to assess emerging trends.