Introduction. It has been said and repeated over and over again: The arbitration is a creature of contract. A person, legal or natural, may be compelled to arbitrate only if that person consented to arbitration. No matter how often said and repeated, the international arbitration practice tells another story with almost the same amount of enthusiasm: Story of non-signatories – of those who did not sign the arbitration agreement but are somewhat affected by the results of it. Courts, arbitral tribunals, and scholars came up with different theories either to justify or to reject the extension of the arbitration agreement to those non-signatories. An extensive legal literature on the issue of when and how a non-signatory may be forced to arbitrate, or force the signatories to arbitration agreement to arbitrate with the non-signatory itself, exists and continues to expand. However, the concern is not limited to the non-signatory initiating or participating in the arbitration. Despite attracting much less attention, the issue is also whether a non-signatory has any means to avoid the negative effects of an award rendered in an arbitral proceeding to which it was not party. Two recent decisions from two different European countries – Belgium and France – recently opened a path for the non-signatories to initiate the extraordinary recourse of “tierce opposition” (third party opposition) either to challenge the international arbitration award itself or the court decision enforcing that award.
Belgian Decision. First, by a judgment of February 16, 2017, the Belgian Constitutional Court found that Article 1122 of the Belgian Judicial Code (JC) was in violation of the Belgian Constitution in that it limited the tierce opposition to national court judgments and excluded arbitral awards. The Belgian Constitutional Court based its decision on the principles of equality and non-discrimination.
In this case, a Greek company had initiated, before the Court of first instance francophone of Brussels, a tierce opposition for the annulment of an international arbitral award rendered by an ICC arbitration tribunal. One of the parties to the arbitral award challenged the admissibility of the action on the basis that the Greek company had not been party to the arbitration proceedings. The Court decided that the tierce opposition was prima facie not admissible, because the law did not provide for the possibility of tierce opposition against arbitral awards. However, the Court opined that there were sufficient elements that let the Court to refer the question to the Belgian Constitutional Court.
According to Article 1122 of the JC, any person may oppose a decision of a civil court, or of a criminal court if the decision is given on civil interests. The article does not mention arbitral awards, which appeared to mean that the tierce opposition was not possible against them. The Belgian Constitutional Court found that the difference of treatment between third parties to a court judgment and non-signatories to an arbitral award was not justified. In reaching this decision, the Belgian Constitutional Court emphasized that the non-signatories had not chosen this mechanism of settlement of disputes and could not be considered to have accepted the consequences of the award on their rights.
French Decision. A couple of months later, in a decision rendered on April 25, 2017, the Tribunal de Grande Instance de Paris admitted the right of a non-signatory to challenge the enforcement decision of an international arbitral award that affected the non-signatory negatively. The French Court based its decision on the general principles of right of access to justice and due process.
A French company, producer and seller of sugar beet seeds, had business relations with a German group company. One of the companies belonging to the group had a dispute with a Belgian company as regards their sugar beet selection activities. The dispute was submitted to CEPANI arbitration. The award ordered the German company to pay damages to the Belgian company and to return to the Belgian company all germplasm and any information relating to it that were in its possession, in the possession of its subsidiaries or a third-party subcontractor. The Belgian company enforced the award in France. Upon attempts of the Belgian company to seize documents at the place of business of the French company and to get a court order against the French company to hand over the “germplasm”, the French company initiated tierce opposition against the enforcement decision.
In France, Article 1501 of the Code of Civil Procedure (CPC) gives a non-signatory the possibility to object to a domestic arbitral award before the court that would have had jurisdiction to adjudicate the dispute if there had not been any arbitration. Article 1506 of the CPC, which enumerates the provisions of the CPC to be applied also in relation to international arbitral awards, does not refer to Article 1501. This lack of reference has been construed as excluding “tierce opposition” to international arbitral awards. The French Cour de Cassation had renounced the possibility of tierce opposition in the context of international arbitration in 2009, when it had stated that the tierce opposition was not open once it had been deducted that the arbitration was international. A new attempt to extend tierce opposition to international arbitral awards has found life with the decision of the Tribunal de Grande Instance de Paris: By way of accepting the admissibility of a tierce opposition against enforcement decisions. The French court relied on the provisions of the CPC with regard to enforcement decisions. Article 1524 of the CPC states that the enforcement decision of an international arbitral award made in France may not be subject to any recourse other than the ones exhaustively enumerated under Article 1522, which does not include tierce opposition. However, contrary to Article 1524, Article 1525, which provides for the appeal of the enforcement decision of international arbitral awards made outside France, does not prohibit other types of recourses. The French court relied on this lack of prohibition to extend tierce opposition to decisions enforcing international awards made outside France.
Tierce Opposition – General Rule. As per Article 582 of the French CPC, tierce opposition is a means to retract or reform a decision for the benefit of a third person. Article 591 of the French CPC further states that only the issues affecting the third person are retracted or reformed, and that the original decision between the parties continues to have its effects on these parties. Article 1130 of the Belgian JC, in a similar way, provides that the court annuls the decision in whole or in part, but only with regard to the third party. However, both legal systems provide an exception to the rule of relative annulment: The original decision will be annulled if the decision rendered upon tierce opposition is irreconcilable with the enforcement of the original decision.
Under French law, per application of Article 583 of the CPC, any interested person may initiate tierce opposition as long as she has not been party to or represented in the proceedings that led to the decision. According to this article, two conditions should be satisfied. First, the non-signatory must have an interest in attacking the decision. Second, not only should the non-signatory not have been party to the proceedings, but the non-signatory should not have been represented in them either. The requirement of not being represented limits substantially the number of persons who may oppose arbitral awards. The French courts refused tierce opposition initiated by certain persons as they had been, according to the French courts, already represented by one of the parties to the proceeding: An insurer was deemed represented by the insured, unsecured creditors by the debtor, shareholders by the company or its director, a co-debtor by the other co-debtor, joint and several guarantors by the debtor. The creditors or assignees could initiate tierce opposition pursuant to Article 583 of the CPC only if the decision had been rendered in fraud of their rights or if they could invoke new grounds that the party deemed representing them could not invoke. French case law has been criticized on its approach to the issue of representation in tierce opposition, and eventually the French Cour de Cassation, in a domestic arbitration case, decided on May 5, 2015, that the guarantor, as a non-party to the arbitral proceedings, had a right to initiate tierce opposition against an arbitral award, which determined the amount of debt of the principal debtor. The French Cour de Cassation, in its decision, relied on the guarantor’s right of access to a court. This decision was welcomed as it had a more restrictive approach to the representation and as it was considered to give hope for the extension of tierce opposition to international arbitration.  Article 1122 of the Belgian JC has been drafted in a different way than Article 583 of the French CPC. According to the former provision, any person who has not been duly joined to or intervened in the proceedings may oppose a decision that frustrates his rights or interests. The article clearly states that in principle, the creditors, successors in title, assignees, and persons represented in the proceedings do not have the right to tierce opposition. They may initiate tierce opposition only in exceptional circumstances.
Tierce Opposition – Possible Extension to International Arbitration Awards. Even before the Belgian and French decisions, the likelihood of extending this protection to non-signatories facing an international award by use of general principles of law had been questioned. Some authors had given a negative response on the basis that such extension would give the national courts a power of review that is not acceptable within the context of international arbitration and that would be against the intention of the parties, legal certainty, and confidential character of the international arbitration. These authors further argued that “the privity of the arbitration agreement and the res judicata effect of the arbitrator’s decision” provided enough protection for the non-signatories. However, as underlined by others, the power of review of the court is legitimate as the non-signatory has never been party to the arbitration agreement and, moreover, such review will ensure the protection of the interests of the non-signatory by preventing the award from producing effects only against the non-signatory. This review will not affect the situation between the parties created by the international award. Moreover, the authors suggesting that the res judicata effect of the award provides enough protection to non-signatories were criticized, because the res judicata effects of the award do not preclude it from being used against the non-signatories and therefore the award may still harm them. 
As rightly pointed out, closing the doors to a non-signatory, who has a legitimate interest in the outcome of the dispute, by both refusing its intervention to the arbitral proceedings and its right to challenge the arbitral award once it is made will leave the non-signatory without any protection vis-à-vis its rights and interests that are frustrated by the award. Extension of the arbitration agreement to non-signatories is not automatic. A non-signatory may participate in an arbitral proceeding only if the non-signatory is deemed to be party to the arbitration agreement by one of the theories developed to this purpose or if all parties accept its participation. When both of these possibilities are eliminated, it is hard to provide any protection for the rights of a non-signatory closely affected by the dispute. Even though the tierce opposition action grants the national court more power than it has in respect of the request for annulment lodged by the parties as it will have the possibility to make a substantive review of the award, the higher degree of scrutiny may be legitimized by the fact that the non-signatory could not participate in the arbitral proceedings and defend its own rights and interests. Moreover, the legislation along with the courts have assumed a restrictive stance as regards the persons who can initiate tierce opposition. Pro-arbitration views should not disregard the rights of non-signatories to access to justice or due process. Neither the character we wish to bestow to the international arbitration nor our doubts about the intervention of the national courts should shadow most important rights relative to the right of defense.
Duygu Kiyak is an LL.M. candidate in the International Business Regulation, Litigation and Arbitration program at the NYU School of Law and a Ph.D. candidate in Private International Law at Istanbul Bilgi University. She obtained her first degree in law at Galatasaray University Law Faculty. She later obtained a Master II degree in the Private International Law and International Commercial Law program at Paris 1-Sorbonne University. She also works as of counsel attorney for Guner&Tapsin Law Firm in Istanbul, Turkey.
 Theories such as “assignment”, “third party beneficiary”, “apparent or ostensible authority”, “equitable estoppel”, “implied consent”, “group of companies”, “alter ego”, “lifting the corporate veil”.
 Stavros L. Brekoulakis, The Relevance of the Interests of Third Parties in Arbitration: Taking a Closer Look at the Elephant in the Room, 113(4) Penn. St. L. Rev. 1165, 1170 (2009).
 Article 1122: “Toute personne qui n’a point été dûment appelée ou n’est pas intervenue à la cause en la même qualité, peut former tierce opposition à la décision, même provisoire, qui préjudicie à ses droits et qui a été rendue par une juridiction civile, ou par une juridiction répressive en tant que celle-ci statue sur les intérêts civils.”
 Belgian Constitutional Court decided that the impossibility imposed by Article 1122 of the Judicial Code upon a third party to oppose an arbitral award was in violation of Article 10 of the Constitution as regards the principle of equality and Article 11 of the Constitution as regards the principle of non-discrimination.
 “Le droit effectif au juge et l’exigence d’un procès équitable, méconnues par l’impossibilité pour le tiers lésé de faire tierce opposition à une sentence arbitrale internationale, ne peut être assuré que par cette voie de recours exceptionnelle.”
 Charles Jarrosson, L’autorité de la chose jugée des sentences arbitrales, Procédures nº 8-9, 2007, étude 17, § 49; Jean-Louis Delvolvé, Gerald H. Pointon, Jean Rouche, Part III, Chapter 8: Challenge of Arbitral Awards in French Cours d’Appel, in Jean Rouche, Gerald H. Pointon, et al., French Arbitration Law and Practice: A Dynamic Civil Law Approach to International Arbitration (Second Edition), 2nd edition (Kluwer Law International 2009) pp. 199, 278; Sylvain Bollée, Les effets des sentences arbitrales à l’égard des tiers, Revue de l’Arbitrage, Comité Français de l’Arbitrage 2015, Volume 2015 Issue 3) pp. 696, 701, 721-722; Christophe Seraglini, Les effets de la sentence, Revue de l’Arbitrage, Comité Français de l’Arbitrage 2013, Volume 2013 Issue 3, pp. 705, 710.
 The French Cour de Cassation, Chambre Civile 1, 8 October 2009, N° de pourvoi: 07-21990: “…les juges du fond, qui ont écarté la fraude reprochée à la SHLP et qui ont constaté que l’arbitrage rendu l’avait été relativement à la propriété de l’immeuble et du fonds de la Bibliothèque polonaise de Paris ainsi qu’à son exploitation à l’aide de capitaux étrangers, en ont exactement déduit son caractère international, ce dont il résultait que la voie de recours de la tierce opposition n’était pas ouverte”
 The extension of the tierce opposition to international arbitral awards will be valid as long as a higher French court decides otherwise.
 Article 591 of the French CPC and article 1130 of the Belgian JC. See also Kristof Cox, Chapter 3. Dépeçage or Consolidation of Disputes Resulting from Connected Agreements: The Role of the Judge, in Bernard Hanotiau and Eric A. Schwartz (eds), Multiparty Arbitration, Dossiers of the ICC Institute of World Business Law, Volume 7 (Kluwer Law International; International Chamber of Commerce (ICC) 2010) pp. 57, 58.
 Pierre Callé, L’autorité de la chose jugée et les tiers, Revue de l’Arbitrage, Comité Français de l’Arbitrage 2016, Volume 2016, Issue 1, pp. 77, 87.
 Sylvain Bollée, p.731.
 Cour de Cassation, Ch. Comm., 5 May 2015, n° 14-16.644. A subsidiary (assignor) had assigned its shares in another company to a third company (assignee). The contract for the assignment included an arbitration agreement. The parent company of the assignor provided a guarantee to the assignee for the obligations of the assignor. The guarantee did not have an arbitration clause. Upon failure of its obligations by the assignor, the assignee sued the assignor before an arbitral tribunal. The arbitral tribunal ruled in favor of the assignee. The assignee wanted to enforce the award against the parent company, joint and several guarantor of the assignor. The guarantor challenged the arbitral award by initiating tierce opposition.
 “[L]e droit effectif au juge implique que la caution solidaire, qui n’a pas été partie à l’instance arbitrale, soit recevable à former tierce opposition à l’encontre de la sentence arbitrale déterminant le montant de la dette du débiteur principal à l’égard du créancier”.
 Pierre Callé, p.89.
 Sylvain Bollée, p.729 ; Benoit Le Bars, Droit effectif au juge et recevabilité de la caution solidaire à former tierce opposition à l’encontre d’une sentence arbitrale, Revue des sociétés, 2016, p. 317, §17.
 Per Article 1122 of the Belgian JC, the successors by general title may initiate tierce arbitration if they have a different and personnel right; the assignee if there is fraud or if they have acquired the right before the date of the decision; the creditors if their debtors acted fraudulently or if they can invoke a lien, privilege, or any other right different than their credit right; persons represented if their legal, judicial, or contractual representatives acted fraudulently.
 Charles Jarosson, §49; Benoit Le Bars, §17.
 Emmanuel Gaillard and John Savage, Part 6: Chapter I – French Law, Fouchard Gaillard Goldman on International Commercial Arbitration, (Kluwer Law International 1999), §1598.
 Alexis Mourre, L’Intervention des Tiers a L’Arbitrage, Revista Brasileira de Arbitragem, (Comitê Brasileiro de Arbitragem CBAr & IOB; Comitê Brasileiro de Arbitragem CBAr & IOB 2007, Volume IV Issue 16) p.87.
 Emmanuel Gaillard and John Savage, p. 918, §1598
 Jean-Louis Delvolvé, et al., p. 279.
 For the difference between relative res judicata (la relative autorité de la chose jugée under French law) and opposability (opposabilité under French law), see Pierre Callé and Sylvain Bollée.
 Pierre Callé, p.86.
 Alexis Mourre, p.88. Alexis Mourre does not support the extension of tierce opposition to international arbitration but indicates a problem that would be faced if the non-signatory with a legitimate interest is not allowed to intervene to an arbitral proceeding. He further argues that this outcome may be considered against the due process right provided by Article 6 of the European Convention of Human Rights.
 As the French court only recognized the admissibility of a tierce opposition to the enforcement decision, it is likely that the review in France will be limited to the enforcement decision, unless the tierce opposition is extended to international arbitral awards.