This article is about non-signatories to arbitration agreements. The issue I address concerns a difference in the approach taken by U.S. courts when a non-signatory seeks to rely on an arbitration clause against a signatory versus when a signatory seeks to rely on an arbitration clause against a non-signatory. When it comes to one particular non-signatory theory—the “intertwined claims” estoppel theory (about which more below)—U.S. courts hold that a non-signatory may rely upon an arbitration clause against a signatory, but not the other way around.

In Thomson-CSF, SA v. Am. Arb. Ass’n , 64 F.3d 778 (2d Cir. 1995), the U.S. Court of Appeals for the Second Circuit articulated the approach of the courts in this way: “the circuits have been willing to estop a signatory from avoiding arbitration with a nonsignatory when the issues the nonsignatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed” (emphasis in original)—the inference being that courts would not estop a non-signatory from avoiding arbitration with a signatory on an intertwined estoppel theory. But no U.S. case has fully articulated the rationale for this theory or fully explained why these two situations should be treated differently. That is what I propose to do here.

Theories for Binding Non-Signatories