## Facts

- Two distribution agreements (1965 and 1968) granted Saint-Gobain group companies rights to distribute Dow insulation products in France and contained ICC arbitration clauses calling for arbitration in Paris.
- The signatories on the Dow side were Dow Chemical International S.A. (later Dow Chemical A.G.) and Dow Chemical Europe; Isover-Saint-Gobain later succeeded to the Saint-Gobain distributors’ rights and obligations.
- Four Dow entities initiated ICC arbitration in 1981: Dow Chemical France, The Dow Chemical Company (U.S. parent), Dow Chemical A.G., and Dow Chemical Europe.
- Isover objected that the tribunal lacked jurisdiction over Dow Chemical France and The Dow Chemical Company because neither had signed the contracts containing the arbitration clauses.
- The tribunal examined how the Dow group operated in relation to the contracts, including:
  - Joint negotiation and drafting by multiple Dow entities, with Dow Chemical France participating openly.
  - Substantial performance in France carried out by Dow Chemical France (supply and day-to-day relationship management).
  - Overall control and trademark ownership attributed to the U.S. parent, with contractual use of those marks.
  - Contract termination communicated by Dow Chemical France without contemporaneous objection to its role.
- The tribunal issued an interim award (23 Sept. 1982) addressing jurisdiction and found it had jurisdiction over all four Dow entities.
- Isover sought to set aside the interim award in the Paris Court of Appeal under Article 1502 of the French Code of Civil Procedure; the court rejected the challenge (21 Oct. 1983).

## Issues

1. Whether an ICC tribunal seated in Paris has jurisdiction over non-signatory affiliates (Dow Chemical France and The Dow Chemical Company) based on their involvement in negotiation, performance, and termination of contracts containing an arbitration clause.
2. Whether the arbitration clause’s scope and effects may be determined by an autonomous analysis distinct from the law governing the contract’s merits.
3. Whether the “group of companies” concept and evidence of common intention can extend an arbitration clause to non-signatories.
4. On annulment review, whether asserting jurisdiction over such non-signatories constitutes deciding “in the absence of an arbitration agreement” under Article 1502.

## Decision

- The ICC tribunal held it had jurisdiction over all four Dow entities, including the two non-signatories.
- The tribunal found that, in commercial reality, Dow Chemical France and the U.S. parent were treated as parties to the contractual relationship and thus within the arbitration clause.
- The tribunal relied primarily on a common-intention/true-party analysis based on conduct during negotiation, performance, and termination.
- The tribunal also relied subsidiarily on the “group of companies” notion as reflected in international trade practice.
- The Paris Court of Appeal rejected the set-aside application and upheld the interim award, concluding the arbitrators had justified jurisdiction and had not exceeded their powers.

## Legal Principles

- An arbitration clause in an international contract may be interpreted autonomously; the law governing the clause’s scope and effects need not match the law governing the merits.
- A non-signatory may be treated as bound by (and able to invoke) an arbitration clause when evidence shows the parties’ common intention to include that entity as a true party to the contractual relationship.
- Conduct indicating inclusion may include active participation in negotiation, substantial performance, control or supervision within a corporate group, and accepted involvement in termination communications.
- A tribunal may refer to a corporate “group of companies” as supporting context—especially where group participation in the transaction was known and accepted—when determining whether the arbitration clause extends beyond formal signatories.
- In annulment proceedings, a reviewing court gives limited scrutiny to jurisdictional determinations and will not set aside an award where the tribunal’s finding that an arbitration agreement binds the parties is reasonably supported.

## Conclusion

The interim award sustained ICC jurisdiction over non-signatory Dow affiliates because their role in negotiating, performing, and ending the distribution relationship showed a shared intention that they were parties in substance, with the arbitration clause construed autonomously and reinforced, secondarily, by the corporate-group context.


Dow Chem. Fr. v. Isover-Saint-Gobain, 110 J. Du Droit Int’l 899 (1983)