The bilateral arbitration group DIS/ Association Française de l’Arbitrage (AFA) lead by Marc Henry (Paris) and Ulrike Gantenberg (Düsseldorf) held a breakfast meeting at Berlin Dispute Resolution Days on “La France et l’Allemagne: third parties in disputes”.
To complement the delicious breakfast kindly sponsored by CMS Hasche Sigle, there was plenty food for thought when discussing the approach to third parties in arbitration in both countries. Procedural comparison therefore became the breakfast’s fundamental ingredient.
Integration of third parties into arbitration proceedings is one of the challenges that many institutions have dealt with by implementing rules on joinder etc. However, these do not necessarily help in the context of subcontracts or supply chains.
The German code of civil procedure provides for a mechanism called Streitverkündung – third party notice. It is applicable in state court proceedings but not in arbitration. To bridge that gap, DIS recently implemented the Supplementary Rules for Third Party Notices for proceedings administered under its rules. French procedural law has developed various concepts for pursuing claims against third parties including the intervention forcée (the French equivalent of a joinder). But how do parties proceed in an arbitration seated in France?
Before starting the DIS Autumn Conference, at the early morning hour the Chairman of the DIS Board of Directors, Stefan Kröll, welcomed a large crowd of Germano- and Francophile arbitration enthusiasts followed by Andreas Roquette of CMS, who set the scene as moderator of the breakfast. Deborah Keller of CMS introduced the German perspective and mechanism against which Marina Weiss of Bredin Prat and Thomas Granier of Anima Dispute Resolution reflected on the French approach.
It appears that there are very different approaches and the devil is in the details. The active participation of the audience and the quality of their questions demonstrated the relevance of the topic. Of course, a simple breakfast was insufficient to grasp the variety of issues when approaching the third parties in comparative law. Further events and thoughts to follow; stay tuned.
Ulrike Gantenberg
