Joinder Mechanism in International Commercial Arbitration: A Trend in the Digital Age?

Abstract

In recent years, the phenomenal development and application of technology have given rise to new means and forms of international commercial dispute resolution. In particular, in the post-COVID era, the demand for efficient, flexible and cost-saving dispute resolution methods has increased significantly. Therefore, technology-enabled digital methods such as online arbitration, have become more widely accepted and applied. At the same time, globalisation has turned international commercial disputes increasingly complex, which often involves the interests of third parties. According to data released by arbitral institutes, about 40% of arbitration cases worldwide involve more than two parties. As there is an increasing number of multi-party arbitration cases, multi-party dispute resolution mechanisms have played a more prominent role in such circumstances. Digitalisation and globalisation have facilitated multi-party projects, but they have also inevitably increased risks in multi-party disputes. For instance, arbitration is a business-friendly process, but the consensual nature of arbitration does not easily accommodate multi-party disputes. Although digitalisation in the conduction of arbitrations has made it more efficient and increased the access of multi-party commercial disputes to resolution, it still has not helped arbitration overcome the basis of party’s consent. This paper will examine the joinder mechanism in international commercial arbitration, focusing on its interaction with traditional theories and principles of arbitration, the joinder provisions in the rules of several leading arbitral institutions (e.g. ICC, LCIA, HKIAC and SCAI), and the value of the joinder mechanism in the context of digitalisation.