## Facts

- Two distribution agreements (1965 and 1968) governed the distribution in France of thermal insulation products, including “Roofmate.”
- Each agreement contained an ICC arbitration clause.
- The contractual counterparty on the French side was a French distributor whose rights and obligations later passed to Isover Saint-Gobain.
- The Dow side involved multiple affiliated companies: some entities signed the agreements, while other Dow affiliates (including a French affiliate and the U.S. parent) participated in performance, including delivering products in practice.
- Product-related disputes led to proceedings in French courts involving Dow group entities.
- Four Dow entities commenced ICC arbitration seated in Paris under the 1975 ICC Rules; French law was identified as applicable to the merits.
- Isover objected to the tribunal’s jurisdiction and to the admissibility of claims, arguing that certain Dow claimants were non-signatories or lacked standing.
- The tribunal issued an interim award deciding jurisdiction and admissibility; Isover later sought annulment before the Paris Court of Appeal, which rejected the challenge.

## Issues

1. Whether the ICC arbitration clauses in the distribution agreements bound Dow affiliates that did not sign the agreements but participated in their negotiation, performance, or termination.
2. Whether the law governing the scope and effects of an international arbitration clause may be determined independently from the law governing the merits of the dispute.
3. Whether a “group of companies” rationale can support extending an arbitration agreement to non-signatory parent and affiliate companies based on inferred consent.

## Decision

- The tribunal affirmed its jurisdiction over the dispute and held that all four Dow entities and Isover were bound by the arbitration clauses.
- The tribunal treated the non-signatory Dow Chemical France and The Dow Chemical Company as parties to the relevant agreements and, therefore, to the arbitration clauses, despite their lack of signature.
- The tribunal relied primarily on common intention and the parties’ conduct during negotiation, performance, and termination of the contractual relationship.
- As an alternative ground, the tribunal relied on the existence of a corporate group operating as a single commercial reality in the transaction, supporting extension of the clause to non-signatory group members.
- On annulment, the Paris Court of Appeal upheld the tribunal’s approach and concluded the arbitrators had justified their jurisdiction.

## Legal Principles

- Arbitrators may rule on their own jurisdiction, including whether an arbitration agreement binds particular parties.
- In international arbitration, the scope and effects of an arbitration clause may be assessed through an autonomous interpretation that does not necessarily coincide with the law governing the merits.
- A non-signatory may be bound by an arbitration agreement where the evidence shows a common intention—derived from documented dealings and conduct—that the non-signatory participated as a party in the formation, performance, or termination of the contract.
- Where affiliated entities operate and are treated by the counterparties as a single economic unit in the transaction, an arbitration clause may extend to non-signatory affiliates when their involvement supports an inference of consent.

## Conclusion

The interim award held that an ICC arbitration clause in international distribution agreements could bind non-signatory parent and affiliate companies when the transaction’s documents and performance showed shared intent and active participation, and it approved an autonomous approach to interpreting the arbitration agreement’s scope; French judicial review later confirmed the tribunal’s jurisdictional determination.


Interim Award in ICC Case No. 4131, IX Y.B. Com. Arb. 131 (1984)