CHANTAL-AIMÉE DOERRIES QC
PROFESSOR DOUGLAS S JONES AO
We are pleased to provide the third instalment of the International Construction Law Review for 2021, which brings with it a host of timely and insightful contributions spanning several jurisdictions. The articles in Part 3 contain comprehensive analyses of developments in the landscape of dispute resolution for international construction projects and review the responses of governments and institutions to ongoing changes and challenges facing the construction industry.
We begin with Philip Bruner’s article, “Joinder of Nonsignatories in International Arbitration”, an analysis of the interaction between the New York Convention and US domestic law on the issue of joinder. This article follows the 2020 decision of GE Energy
in which the US Supreme Court found that nonsignatory third parties could compel international arbitrations and be joined in them under the New York Convention and US Federal Arbitration Act. Bruner highlights that, in doing so, the Supreme Court found that, despite Article II(2) of the New York Convention requiring agreement in writing to submit to arbitration, a nonsignatory party could still be joined if they were found to have consented to arbitration under the written agreement using traditional state law principles. The Supreme Court’s finding that the Convention does not prohibit the application of domestic law to nonsignatories is, in the author’s view, the continuation of a decades-long trend by US courts towards supporting and promoting arbitration for complex commercial cases. The article then outlines the landscape of domestic law in the US, covering 15 legal principles which may be available to allow enforcement by, or against, nonsignatories, including assumption, incorporation by reference, estoppel, agency and implied consent. In outlining these principles, Bruner makes the case for a judicial movement towards favouring joinder of third parties in international arbitration.
Next, Kieran Fano explores the scope of contractual rights protection under bilateral investment treaties (BIT) for international construction projects. His article, “‘Building Bridges’ in Investor-State Arbitration: International Construction Projects and the Protection of Contractual Obligations Under Bilateral Investment Treaties in a Post-Brexit World”, acknowledges and responds to the forecasted rise of investment treaties in UK economic policy following Brexit. Fano highlights the benefits of having disputes fall under the investor state dispute settlement (ISDS) provisions of investment treaties. These include providing access to the International Centre for Settlement of Investment Disputes (ICSID) and remedies under international law instead of those awarded in domestic courts which may