Third Party’s Express Written Consent required for ‘Forced Joinder’ Under LCIA Rules

In CJD v CJE [2021] SGHC 61, the Singapore High Court refused to join a company as a respondent to an arbitration even though that company had signed the contract containing the arbitration agreement under the London Court of International Arbitration Rules 2014 (“LCIA Rules 2014”).

In essence, the High Court found that the requisite consent required in the LCIA Rules 2014 may be established in the following circumstances:

1. Where the third person and applying party have consented to such joinder in writing after the Commencement Date (defined in Article 1.4 of the LCIA Rules 2014 as the date on which the Registrar of the LCIA receives the Request for Arbitration from the party wishing to commence the arbitration);
   
   
2. Where the third person and applying party have consented to such joinder in writing earlier in the arbitration agreement; or
   
   
3. Where the written consent of the third person and the applying party to such joinder involves applying a combination of (a) and (b) above.

In this case, the Court opined that merely being a party to the arbitration agreement was not sufficient to constitute consent to being joined and being made party to the arbitration proceedings. Therefore, the parties to that arbitration agreement will not be able to be joined to an existing arbitration unless the arbitration agreement expressly permits a joinder, or all parties consent in writing.

It would likely not have been the same result if the arbitration had been governed by the rules of the Singapore International Arbitration Centre, the Hong Kong International Arbitration Centre or the International Chamber of Commerce. There is no requirement in those rules that the arbitration agreement include consent to being joined to arbitrations under that agreement.